Case: Director of Public Prosecutions v DJK [2003] VSCA 109
Outcome: approved
the case of victims of criminal acts, legislation now provides for courts to hear their voices through victim impact statements: for example see Div 1A of Pt 6 of the Sentencing Act 1991 (Vic). That legislation broadened the type of evidence which a court could consider in the course of sentencing in criminal cases: R v Dowlan [1998] 1 VR 123 at 138-9 per Charles JA. But even at common law a criminal court was entitled to take into account the impact on a victim in order to assess the severity of criminal conduct: R v Medini [2002] VSC 12 at [45] . In Director of Public Prosecutions v DJK [2003] VSCA 109 ( DJK ) Vincent JA explained the value of victim impact statements in a way which is equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations. He said at [17] - [18] that such statements: ... constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statement must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence. ... It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for the wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation. The evidence of Mr and Mrs Francis is a good example of the purpose of such evidence as explained by Vincent JA in DJK [2003] VSCA 109. The extent to which their evidence is directly relied upon in the sentencing process is described later in these reasons. Evidence concerning the state of knowledge in the community about peanut allergy The second issue on which the Court sought further assistance from Comcare was the state of knowledge in March 2007 about peanut allergy in the community generally and in the school community in particular. Initially the only prior knowledge of peanut allergy on which Comcare relied against the Commonwealth was the Australian National Audit Office Report in 1996 which was in limited in its terms and will be discussed later. But general knowledge suggested that peanut allergy awareness was a very live issue in the school community by March 2007. Comcare responded to the Court's request by filing an affidavit sworn on 11 May 2009 by Dr Jo Ann Douglass. Dr Douglass is a specialist physician and Head of the Department of Allergy, Asthma and Immunology Service at the Alfred Hospital in Melbourne. She was a member of the Allergy and Anaphylaxis Working Party established in 2006 by the Victorian Department of Health Services. The Working Party was chaired by Dr Robert Hall, the Chief Health Officer for Victoria, and included paediatric allergy physicians, representatives of general practitioners, consumer advocacy groups, representatives of the Office for Children and the Department of Education and Training. It held its first meeting on 13 September 2006. The working party developed guidelines which were published in November 2006 by the Office of School Education and entitled "Anaphylaxis Guidelines: A resource for managing severe allergies in Victorian Government schools" (the Guidelines). The document acknowledges the contributions of various bodies including the Association of Independent Schools of Victoria. The Guidelines address how anaphylaxis can be prevented as follows: The key to prevention of anaphylaxis in schools is knowledge of those students who are at risk, awareness of triggers (allergens) and prevention of exposure to these. Schools need to work with parents and students to ensure that certain foods or items are kept away from the student while at school. The Guidelines then outline a number of prevention strategies for school camps and remote settings as follows: