R v Bechalany [2018] NSWSC 493

R v Bechalany [2018] NSWSC 493

The offence of being an accessory after the fact to manslaughter was not an offence to which Div 2 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 applied under s 27(2). Porter and Miller concerned evidence of impact on direct victims and did not supply a common law basis for receiving statements from family victims. Under Previtera and Bollen, the impact of a homicide on family members is not admissible at common law for sentencing, and the statutory discretion in s 28(4) is unavailable because the offence is excluded from the regime. Consequently, for s 27(4), there was no other law by which the statements could be received.

Jurisdiction
Australia
Judgment Date
19 April 2018
Procedural Posture
Criminal Sentencing Ruling / Sentencing; Ruling on Admissibility of Family Victim Impact Statements
Outcome
Family victim impact statements rejected.
Legal Topics
['accessory After the Fact to Manslaughter' 'victim Impact Statements' 'family Victims' 'admissibility of Evidence on Sentence' 'crimes (sentencing Procedure) Act 1999 Div 2 Pt 3']
['criminal Law' 'sentencing' 'evidence'] ['accessory After the Fact to Manslaughter' 'victim Impact Statements' 'family Victims' 'admissibility of Evidence on Sentence' 'crimes (sentencing Procedure) Act 1999 Div 2 Pt 3']

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Procedural Posture

Criminal Sentencing Ruling / Sentencing; Ruling on Admissibility of Family Victim Impact Statements

Legal Issues

  1. 1 ["Whether family victim impact statements by the deceased's partner and mother were admissible in sentencing an offender for being an accessory after the fact to manslaughter." 'Whether s 27(4) of the Crimes (Sentencing Procedure) Act 1999 permitted receipt of the statements by reference to any other law outside Div 2 of Pt 3.']

Ratio Decidendi

The offence of being an accessory after the fact to manslaughter was not an offence to which Div 2 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 applied under s 27(2). Porter and Miller concerned evidence of impact on direct victims and did not supply a common law basis for receiving statements from family victims. Under Previtera and Bollen, the impact of a homicide on family members is not admissible at common law for sentencing, and the statutory discretion in s 28(4) is unavailable because the offence is excluded from the regime. Consequently, for s 27(4), there was no other law by which the statements could be received.

Court Disposition

Family victim impact statements rejected.

Orders

  • ['The victim impact statements of Ms Jennifer Watt and Ms Christine Weeks were rejected.']