R v Turnbull (No. 24)

[2016] NSWSC 830

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 24) [2016] NSWSC 830
Hearing dates:	15 June 2016
Date of orders:	15 June 2016
Decision date:	15 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Objection to victim impact statement of Alison McKenzie overruled.
Catchwords:	CRIMINAL LAW - sentencing hearing - shooting of environmental officer - murder and detain for advantage offences - objection to parts of victim impact statement of wife of murder victim - objection overruled
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 2010
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ian Robert Turnbull (Accused)
Representation:	Counsel: Mr PE Barrett (Crown) Mr T Alexis SC; Ms C O’Neill (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Cole & Butler (Accused)
File Number(s):	2014/223920
Publication restriction:	---

Judgment

1. JOHNSON J: The sentencing hearing has commenced with respect to the Offender, Ian Robert Turnbull, in connection with the crimes of murder and detaining for advantage.

2. The Crown seeks to rely on victim impact statements as part of the sentencing hearing. The first victim impact statement upon which reliance is to be placed is that of Alison McKenzie, the wife of Mr Glen Turner, the murder victim.

3. Objection has been taken to parts of the victim impact statement by senior counsel for the Offender. It is submitted that the parts which are objected to do not fall within the definition of “victim impact statement” contained in s.26 Crimes (Sentencing Procedure) Act 1999 which is defined to mean, in the case of a family victim, “the impact of the primary victim's death on the members of the primary victim's immediate family”.

4. It is also submitted that parts of the statement do not comply with Clause 10(6) Crimes (Sentencing Procedure) Regulation 2010 which states that victim impact statements must not contain, amongst other things, anything that is “offensive”.

5. The parts of the victim impact statement which are objected to have been identified by senior counsel for the Offender (T5-7, 15 June 2016). It is submitted that parts of them go beyond what is the “impact” of the death of Mr Turner upon Ms McKenzie, or, alternatively, in some respects the content is not permissible because of Clause 10(6) of the Regulation.

6. It is the case that parts of the statement refer to the perception of Ms McKenzie concerning the motivation of the Offender in killing Mr Turner, and in other places, to the impact of the trial process upon her. There are at times terms used which are strong in their content.

7. The making of victim impact statements forms a very important part of sentencing, in particular with respect to homicide cases. The law in this State has developed considerably in recent times, so that appropriate recognition should be given to the impact upon the surviving relatives of murder victims of crimes which have deprived them of the primary victim.

8. The term "impact" in s.26, in the definition of “victim impact statement”, should not be construed narrowly. The impact of the death of a person on the members of that person's immediate family extends to the influence or effect of the death. It is not confined to the immediate impact. It is not confined to immediate issues of grief, but to the devastation that can be caused to the family of a murder victim. It can extend, in my view, to the thought processes of the victims which, at times, may involve strong feelings with respect to the perpetrator, and what (in their view) may have motivated the perpetrator. To exclude matters of that sort, in my view, would narrowly and artificially confine the very process by which victim impact statements are made.

9. In determining whether any particular phrase contained in a victim impact statement may be considered offensive for the purpose of Clause 10(6) of the Regulation, it is necessary to bear in mind the context of the statement including the facts of the case and related issues. Strong feelings may be expressed.

10. It will be a matter for the Court, in due course, to pass sentence according to law.

11. However, in my view, the matters raised on behalf of the Offender, by way of objection to the victim impact statement of Ms McKenzie, ought not be upheld. I overrule the objections to the victim impact statement which may be given in the terms in which it presently stands.

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