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Key decisions

  • R v TUALA [2015] NSWCCA 8
  • Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
  • JM v R [2014] NSWCCA 297

R v TUALA [2015] NSWCCA 8

In Tuala, the Court of Criminal Appeal reviewed the use of a Victim Impact Statement (VIS) in sentencing, with practical consequences for both parties.

Mr Tuala went to trial on an allegation that he was involved in harassing the victim, a builder who owed debts to a sub-contractor.

Mr Tuala was not eventually convicted of demanding money with menaces, but he was convicted of visiting upon the victim with a gun, declaring that the victim had had enough time to repay the debt, and then shooting him in the arm and thigh (presumably to emphasise the comment about delays in payment).

The wounded victim then rather ‘unwisely’ goaded Mr Tuala, who threateningly pointed the gun at him again, but without shooting.

The offender was sentenced for the shooting as well as possession of other firearms. His total sentence was eight years, seven months, with a NPP of four years and 10 months, against which the Crown instituted this appeal against the asserted inadequacy of the sentence.

At [51]ff, Simpson J (with whom Ward JA and Wilson J agreed) set out a range of cases dealing with the use of a VIS on sentence and the extent to which they can be used by the Crown to prove aggravating features on sentence.

Her Honour concluded that, where no objection is taken to the VIS, no question is raised about the weight it should be given and/or no attempt is made to limit the use the Crown can make of it, ‘…the case for its acceptance as evidence of substantial harm [is] strengthened’ (at [78]). In other words: if a VIS is admitted without comment, it can be more readily used against the offender. Moreover, there will be little difficulty with its use where it mostly confirms other evidence, or attests to harm of the kind that might be expected.

On the other hand, if the facts set out in the VIS are in contest, the victim’s credibility is in issue, the harm goes well beyond what you would normally expect, or the VIS is the only evidence of the harm, a court will need to be cautious.

The practical consequence is that both parties will need to carefully consider what use a VIS is going to be put to at the time it is proffered.

If an offender wants to challenge aspects of the VIS, that will need to be unambiguously put on the record – and if necessary perhaps the victim called to give evidence in response.

This won’t always be straightforward for an offender as it can be risky to cross- examine a victim on sentence, especially where an offender wants the full benefit of a finding of ‘genuine’ remorse, despite cross-examining the victim about the harm caused.

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