Due to recent amendments to the Crimes (Sentencing
Procedure) Act 1999 (the Act), Victim Impact Statements
(VIS) may now be taken into account when determining the quantum of
sentence in workplace matters.
The purpose of a VIS is threefold; to allow the harm suffered to
be recognised, to provide the victim with an emotional outlet and
to assist the court in determining the extent of harm caused by the
crime in cases where the injury, emotional harm, loss or damage
caused by the incident may be substantial. This may attract larger
penalties under s 21A(2)(g) of the Act.
A VIS will be admissible in work health and safety proceedings
where the offence is an offence against Division 5 of Part 2 of the
Work Health and Safety Act 2011 or Subdivision 3 of
Division 3 of Part 3 of the Rail Safety National Law (NSW), and the
offence results in the death of, or actual physical bodily harm to,
Under s 30 of the Act, a VIS must be in writing and may include
photos, drawings or other images.
The Act differentiates between primary victims, those harmed by
the incident or who witness the incident, and family victims, who
may only provide a VIS if the incident results in a fatality.
If a primary victim is incapable of providing a statement, the
victim's parent or a member of the victim's family may
provide a VIS for the victim.
A VIS by a family victim will be relevant in sentencing only to
the extent that it facilitates the recognition of harm to both the
victim and the community under s 3A(g) of the Act. A family victim
VIS will only be considered where the prosecutor makes an
application to have it considered and the court finds this to be
The extent to which a VIS is considered is primarily left to the
discretion of the judge, but caution is often exercised, given the
fact that VISs are generally not subjected to cross-examination. It
is unclear whether the amendments will result in greater testing of
VISs as evidence, given that this would appear to be contrary to
the intended purpose of the VIS.
We would like to acknowledge the contribution of Ian Hedberg
to this article.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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