HVSG Items of Interest
VICTIM IMPACT STATEMENTS
Changes to the Crimes (Sentencing Procedure) Act 1999 No 92 now allows Judges to take statements into account when determining the appropriate penalty if the judge considers it appropriate.
Points 3 & 4 are the parts that are relevant to family members in the HVSG.
28 When victim impact statements may be received and considered
(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.
(2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.
(3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate.
(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.
4A) Subsection (4) does not affect the application of the law of evidence in proceedings relating to sentencing.
(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.
(6) Despite any other provision of this section, a court must not consider or take into account a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor.
In the judgement of Justice Hamill in the case R v Hines (No 3) (2014) NSWSC 1273, Justice Hamill puts a considerable amount of time in his judgement, especially under the headings “The pain and suffering of victims” – we applaud him for this! He also gives some very interesting thoughts on “The new legislation” and how the word “appropriate” might be determined by a Judge.
GOVERNMENT TIGHTENS BAIL LAWS
Embargoed for Tuesday 5 August 2014
MEDIA RELEASE – Mike Baird MP, Premier of NSW, Minister for Infrastructure Minister for Western Sydney
The NSW Government will introduce changes to the Bail Act, ensuring that those who pose an unacceptable risk to the community will no longer be eligible for bail, NSW Premier Mike Baird and Attorney General Brad Hazzard announced today.
The changes also include a new onus on those accused of the most serious offences to show why their detention in custody is not justified.
The enhancements to the State’s bail laws follow community concerns and the completion of an independent review by former NSW Attorney General John Hatzistergos.
“A new risk-based model for bail was introduced earlier this year following concerns the old system was overly complicated and not working well,” said Mr Baird.
“While the model remains sound, the review has recommended important changes, particularly where serious offences are concerned.
“The Government places community safety above all other considerations, and will immediately implement all of Mr Hatzistergos’s recommendations.”
Amendments to the Bail Act recommended by Mr Hatzistergos — who is now a barrister and an Adjunct Professor at UTS — will be introduced in the current session of Parliament.
Key changes include:
- Under a revised test, an accused who is assessed as an “unacceptable risk” will be refused bail;
- In the case of serious offences, the onus will be on the accused to “show cause” that their detention in custody is not justified;
- In addition to meeting the “show cause requirement”, a serious offender still will not be granted bail if found to be an unacceptable risk;
- New risk factors will be included in bail assessment including whether the accused has organised crime associations, victims’ views on their safety and the accused’s history of compliance on “conditional liberty” such as bail or parole;
- The common law presumption of innocence will be acknowledged in a Preamble to the Act, rather than as a “purpose” of the Act, and will be supplemented with other considerations, including protection of the community and protecting the integrity of the justice system;
- It will be made clear in legislation that the existence of the new Bail Act by itself is not a “change of circumstances” sufficient to trigger a review of a previous bail decision.
The changes are modelled on Victorian and Queensland Acts, both of which have risk assessment models.
The amended Act will define “serious offences” according to a range of features of the alleged offence, including that it involved one of the following: the sexual assault of a child; use of a firearm; manufacture or supply of commercial quantities of a prohibited drug; serious personal violence; that the alleged offence was committed while the accused was on bail or parole; or that the alleged offence carries a potential life sentence.
Mr Hazzard said, “These are common sense changes that should reassure the community that the new bail laws are doing precisely what they were intended to do, which is to place the potential risk to the community posed by an accused offender front and centre of the justice system.
“The existing system will not be diluted. It will be enhanced by these changes.
“Under the changes recommended by Mr Hatzistergos, there has been a recalibration of unacceptable risk. Where the consequences of the risk are significant, they are given greater weight, even where the likelihood of the risk materialising may be small.
“The assessment of ‘unacceptable risk’ will now include any conditions that could be placed on an accused offender’s bail – meaning bail will be refused in cases where unacceptable risk is determined.
“I thank Mr Hatzistergos for his excellent work. I have asked him to continue to monitor the operations of the Bail Act and provide a further report next June, and he has accepted.”
The Hatzistergos review can be found at: https://www.nsw.gov.au/news .
Media: Imre Salusinszky 0432 535737
A Message From Simon Bouda!
Colleagues and friends,
Depression … it’s a condition that has touched most of us. Either we’ve experienced it or know people who are close to us that have.
It doesn’t discriminate.
And with depression comes a stigma … a perceived “shame” experienced by the sufferer.
And that is just plain WRONG!
As most of you know I have taken part in the past two Black Dog Rides for Depression – both to Australia’s Red Centre – to raise awareness of depression and suicide prevention.
Well, this year we’re taking the ride back to its origins.
The Black Dog Ride concept began when Steve Andrews decided to ride around Australia after the suicide of his mate’s wife.
So this year that’s what we are replicating. The Black Dog Ride Around Australia – in a month.
That’s about 15000kms in 31 days. We leave on July 26.
We can all make a difference.
I’m inspired by the work that Lifeline Australia do, so I want to raise money for them as part of my participation in Black Dog Ride Around Australia.
Now, here’s the rub.
YOU can give me a hand raising those much needed funds. Please help me help them by giving whatever you can using the ‘Give Now’ button on my fund raising page
The more people that know about Lifeline Australia, the greater their impact, so please also spread the word by sharing my page with your friends and family.
Thank you in advance for your generosity, it means more than you can imagine.
PS – Simon Bouda has been one of the HVSG’s staunchest supporters – now it is our time to give back to him in a small way by supporting this great cause.
Honour Your Dead
When we have lost someone we love it is vital, as part of our lives, to honour them.
I write now on Anzac Day in Australia (25th April) a time when we honour our dead and the sacrifices they made in war. Traditional Halloween in the southern hemisphere (April 30th) is an ancient tradition when it is believed the veil between the dead and living is at its thinnest. Yom HaShoah (April 26th) – Holocaust Remembrance Day – is a day for remembering the people lost in the Holocaust. We are surrounded by Days of the Dead.
Our loved ones are dead. It is an awful, searing loss. However, we can still honour them. For me it took 10 years before I could deeply honour those who I had loved and lost. Before this time, every time I performed a ritual or thought of them, the horror, pain and violence of their deaths outweighed the beautiful memories of their lives. I still performed rituals on important days. Every birthday and anniversary I visited the cemetery and cleaned and planted and talked. I took candles to light and sat while they burned out. I would place food offerings – or beer for my 24 year old brother. I would rake, sprinkle glitter, especially for my 4 year old niece Malee and one year old nephew Bas. Sometimes I placed a toy, a special rock or pretty shell on their graves too.
Dad (Peter Poulson) loved nature so even an empty cicada shell made a gift for him from me.
These are the rituals I still perform. However, as the horror and pain of their deaths recede a little so can the powerful, loving memoires surge in. By honouring our dead this is the joy and gift we get from these rituals. Halloween was traditionally a happy feast night, with an empty place set for our ancestors at the table, and lively discussions and stories or our dead dear ones or ancestors. In South and Central American countries the Day of Dead traditions that take place on the 1st November and follow similar rituals with a place set for the dead at their tables and even a parade . Catholics have incorporated this to become All Souls or All Saints Day.
Choose one that suits your beliefs. For me I don’t follow the Day of the Dead as the 1st of November is also the birthday of the man who murdered my loved ones. I don’t want to do any honouring of him so I choose a different day, once a year, near the end of April. This is around Anzac day, traditional Halloween and the Holocaust Remembrance Day. Choose a day, any day, that makes sense for you.
For some this honouring can cause pain, photos, talking of those we have lost are only an abrasion of thinly covered wounds. The talking, the memories, the in your face photos cause them to bleed. I have no advice or ideas on this. Perhaps it is only time that it needed, more months, days and years that need to slip by. Perhaps it is other help that is needed to shift and soothe the scars, counselling, talking to friends, a release. Then the pure memories and honouring can flow across the surface of the scars with causing a fresh bleed.
To deeply honour your dead you might like to make an alter or shrine or mantelpiece with a photo of your loved ones. You can place what you feel is appropriate on this- incense, candles or something your ancestors loved like a twisted stick, a shimmering dragonfly wing or a poem.
If you do have a dinner on one of the days of dead-Anzac, Remembrance, Halloween, Day of the Dead, All Saints Day, maybe leave a seat free for them. Serve them first, talk about them during the meals – try to keep the stories of their lives not deaths – and when you have finished the meal take their serve outside for the birds. Do not throw it in the bin as this is disrespectful.
I also put a call out on Facebook on my Dads last birthday and my heart sung with joy as photos and stories of him flooded in, clogging my newsfeed and reminding everyone of what a beautiful soul he was. Social media can be used to Honour your Dead. I have seen people change their profile photo to a mum who has passed and who acknowledge anniversaries and birthdays of their dead loved ones. This is Honouring.
In our normal, everyday lives we can also honour them. My days are spent in a hectic rush as I have 3 children aged 5 and under for whom I am the full time carer. However, I have learnt how to bring the dead into our everyday lives. I have photos of my brother Adrian, Dad, Malee and Bas all over the house. Even my grandfathers and grandma make an appearance. My two year old is able to point to them and say their names. My 5 year old has his grandfather’s mining hat in pride of place in his room and knows the stores behind it. As my 4 year pushes her Tonka truck around the house I say “Bas had a truck exactly like yours! He loved it, filling it up with dirt, racing it around as fast as he could. Just like you Rosie!” That way Bas has been bought into our lives, his memory of a normal, feisty and busy little toddler. It helps when the inevitable bad days still visit me, when their losses and sadness overwhelm me.
So honour your dead. Start when you feel ready. Invite friends and family who knew them to a meal and tell joyful stories of them. Bring them into your lives and make a ritual that works for you.
Honour Your Dead.©Rebecca Poulson
I would love to hear how you honour your dead. Please comment on my blog or facebook page. Also if you agree or if you found this post interesting please share! I will be most grateful.
www.rebeccapoulson.com.au Rebecca Poulson – Author – Facebook
We are working on a special project in the HVSG office with all of the beautiful butterflies that were created and placed on our butterfly wall at our Unite Against Violence Walk. What a sight it was, many memories, tears and happiness were shared through all the unique butterflies made with love for your loved ones. Please continue to send in your butterflies to the office as this will be an ongoing project. This is an opportunity for you all to get creative, use colour, decorate, write a special message to your loved one, or share something special about your loved one on a butterfly. We look forward to sharing with you all photos of our project and the Unite Against Walk in our July newsletter.
Chantelle Pirotta, Counsellor
The Sentencing Ladder
An overview of sentences ranging from most lenient to most serious, and the factors taken into consideration by the judges .
NO CONVICTION Section 10 dismissal - The offence is proven, but there is no penalty.
Section 10 bond - The offence is proven, but without conviction, the offender is subject to a good behaviour bond for up to 2 years. It can involve conditions such as compliance with the supervision of Probation and Parole.
CONVICTION Section 10A - A conviction is recorded, but there is no further penalty.
Fine Section 9 bond - This is a good behaviour bond for a period up to 5 years. It can involve conditions such as compliance with the supervision of Probation and Parole. It is only available where the maximum penalty involves imprisonment.
Section 9 bond and fine Community Service Order – This requires the offender to perform unpaid community work for up to 500 hours for offences where the maximum term of imprisonment for the offence exceeds 1 year, 200 hours where the maximum penalty of imprisonment is between 6 months and 1 year, and 100 hours where the maximum penalty of imprisonment is up to 6 months. This order is only available where the maximum penalty involves a sentence of imprisonment. The order can include a requirement that an offender participate in a development program of at least 20 hours.
CUSTODIAL SENTENCES Section 12 suspended sentence of imprisonment - This is a sentence of imprisonment of up to 2 years where it is suspended upon the offender entering into a good behaviour bond for the same length. The offender does not go into gaol unless he or she breaches the terms of the bond. The bond can involve conditions such as compliance with the supervision of Probation and Parole. If the offender breaches the bond, for example, by committing a new offence, the offender can serve up to the whole period of the bond in gaol.
Intensive Correction Order - This is a custodial order for up to 2 years. It involves mandatory periods of home detention, 32 hours of community service work per month, rehabilitation and educational programs, electronic monitoring and, perhaps, random urinalysis. Any breach of an order can result in the offender serving the remainder of the sentence in gaol.
Home Detention - This is a sentence of imprisonment for a period of up to 18 months. It involves detention in the home with strict electronic monitoring, random urinalysis, rehabilitation and educational programs and, perhaps, mandatory community service. This is a greater restriction of liberty than an intensive correction order. A breach of this order can result in an offender serving the balance of the sentence in gaol.
Full Time Custody This is a sentence that is served in gaol. The Court can fix a non-parole period (which is the minimum time that the offender must remain in gaol), and a parole period (where a person is eligible for release back to the community). The parole period can be subject to conditions such as compliance with the supervision of Probation and Parole. The parole period is normally a quarter of the total sentence, unless the Court finds special circumstances to vary that ratio. In the Local Court, the jurisdictional cap for any one offence is 2 years imprisonment. If there are a number of offences, the Local Court can accumulate a sentence of imprisonment up to 5 years.
CRIMES (SENTENCING PROCEDURE) ACT 1999
1. PURPOSES OF SENTENCING (s 3A) Punishment, Deterrence of the offender, Deterrence of others, Protection of the community, Rehabilitation, Accountability, Denunciation & Recognition of harm to victim and community.
2. AGGRAVATING FACTORS (s 21A) In determining the appropriate sentence, the Court must consider aggravating factors that include: • Victim was a police officer, emergency services worker, correctional officer, health worker, etc., exercising public functions; Actual or threatened violence was used; Actual or threatened use of a weapon; Actual or threatened use of explosives, chemicals or biological agents; Victim was caused to take or be affected by narcotic or intoxicating substance; Offender has previous convictions; Offence was committed in company; Offence was committed in the presence of a child under 18; Offence was committed in the home of the victim or another; Offence involved gratuitous cruelty; The injury, emotional harm, loss or damage was substantial; The offence was motivated by hatred for or prejudice against a religious, racial, ethnic, sexual, aged or disabled group; No regard for public safety; Risk to national security; Grave risk of death to another; Offender on conditional liberty; Offender abused position of trust or authority in relation to victim; Victim was vulnerable, for example, due to age, disability or occupation; Offence involved multiple victims or a series of acts; Offence was planned or an organised criminal activity; and Offence was committed for financial gain. The Court is not to have additional regard to those features if they are an element or essential ingredient of the offence.
3. MITIGATING FACTORS (s 21A) In determining the appropriate sentence, the Court must consider mitigating factors that include: • The injury, emotional harm, loss or damage was not substantial; The offence was not planned; Offender was provoked by victim; Offender was under duress; Offender has no significant previous convictions; Offender was of good character; Unlikely to re-offend; Good prospects of rehabilitation; Remorse; Offender was not fully aware of the consequences of his or her actions; Plea of guilty; Pre-trial disclosure by the defence; and Assistance to law enforcement authorities.
4. PLEAS OF GUILTY (s 22) A plea of guilty must be taken into account and can result in a lesser penalty. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25%. The discount for the utilitarian value of the pleas will be determined by the timing of the plea so that the earlier the plea, the greater the discount. There may be offences that are so serious, that no discount should be given. Generally, the reason for a delay in the plea of guilty is irrelevant because, if it is not forthcoming, the utilitarian value is reduced. The discount can result in a different type of sentence, but the resulting sentence should not again be reduced by reason of the discount.
5. SENTENCES OF IMPRISONMENT A sentence of imprisonment can only be imposed if no other penalty is appropriate. A sentence must reflect the criminality. Where an offender has committed a number of offences, each offence must receive an appropriate sentence, but the total sentencing package must reflect the totality of criminality. The Court can achieve this by making sentences of imprisonment partly or wholly consecutive upon another sentence. To determine the extent to which a sentence might be made consecutive upon another, the question should be asked, ‘can the sentence for one offence comprehend and reflect the criminality of the other offence’? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. When sentencing to imprisonment, the following steps must be taken: determine that only a custodial sentence is appropriate; determine the length of the sentence, without any reference to the type of custodial order; then determine the manner in which the custodial sentence is to be served In the Local Court, where offences can be punished by sentences greater than 2 years imprisonment, there is a ‘jurisdictional cap’ of 2 years, (with the exception of some offences which are capped at 1 year), for any one offence. The jurisdictional cap is just that; it is not used for the worst case, it is just as high as the Local Court can sentence for any one offence. The seriousness of the criminality is determined by reference to the maximum penalty and not the jurisdictional limit. When there are a number of offences, the Local Court can accumulate the sentences of imprisonment to a total of 5 years.
With thanks to the Judicial Commission of NSW – Community Awareness of the Judiciary Program
When does a broken heart become a mental disorder?
This statement was developed by a workgroup at the meeting of the International Work Group on Death, Dying and Bereavement in Victoria, British Columbia on April 28 – May 3, 2013. You have full permission to translate the document into other languages, and to distribute it via websites, blogs, the media, and other venues. It is our intention that the message be shared widely.
Rarely, if ever. But don’t tell that to the American Psychiatric Association, which has just released its fifth version of the Diagnostic and Statistical Manual of Mental Disorders. The DSM is a catalogue of mental disorders, hundreds of them, each trailing a listing of symptoms. The manual informs selection of a diagnosis, which is required by U.S. insurance companies for reimbursement for mental health care. There’s a major change in the newest version, DSM-5, with serious implications for the millions of people who are coping with the death of a child, spouse, parent, friend, or other loved one. But first, a quick glimpse at the history of this publication, often referred to as the bible of psychiatry.
The very first edition, published in 1952, didn’t even refer to grief, considering it an accepted and normal reaction to the death of a loved one. The third edition added an exclusion statement under Major Depressive Disorder, referred to as the “bereavement exclusion.” Under this exclusion, a diagnosis of Major Depressive Disorder could not be made for a full year after a death. They recognized that normal and common reactions to the death of a loved one could look like symptoms of depressive disorder, for example, sadness, disturbed sleep, lack of concentration, changes in eating, and loss of interest in things that were once pleasurable. In 1994 the 4th version of the DSM reduced the bereavement exclusion to two months after a death, and this new version removes the bereavement exclusion completely, meaning in effect that anyone can receive a diagnosis of Major Depressive Disorder two weeks after the death of a child, parent, spouse, friend, or anyone.
Why does this matter? For at least three reasons: First, normal reactions to the death of a loved one will be easily misclassified as the mental disorder depression. Grief is not the same experience as major depressive disorder. It is not an illness to be treated or cured. It is a healthy response to a painful reality that one’s world is forever altered, and will never be the same. Absorbing this loss, and adapting to all the changes it unleashes, has its own unique course for every person, and will not be stilled or stopped by quick fixes or simple solutions. Death is a life-altering event, but grief is not a pathological condition.
Second, antidepressants are commonly and frequently prescribed. There is a strong likelihood that newly bereaved people will qualify for a diagnosis of Major Depressive Disorder just two weeks after a death even though their reactions are normal. Antidepressants have not been shown to be helpful with grief-related depressive symptoms, and there is accumulating evidence of long-term negative effects of being on antidepressants. We need to ask why psychiatry is pathologizing grief and therefore making inappropriate pharmacological treatment easier. And we should not overlook the self-interest of pharmaceutical companies who see a new and substantial market for antidepressants, currently a multibillion dollar industry.
Third, about 80% of prescriptions for antidepressants are written by primary care physicians, not psychiatrists. We have the expectation that physicians, as well as psychologists, social workers, and clergy, to whom many of us turn for help after losses of all kinds, have professional training, solid research backing, and supervised experience to guide them. Some do, but in fact, a considerable majority of practitioners with these degrees have no professional training at all in responding to the bereaved. The caution here? Be wary of physicians or other medical professionals who rush to prescribe antidepressants to address your grief.
Here’s a better prescription: Mourn the death of your loved one in your own way. There is no prescribed formula. You may cry; you may not. Your reactions will be shaped by many things: the relationship you had with the deceased, your personality style, and the support or lack of support you receive from others. Push aside those who tell you to move on, that every cloud has a silver lining. What one person finds comforting might not work for another. Find friends and family who understand, and with whom you can share your experience. If they won’t listen or help, or if their help is not enough, search for support groups through your local hospital, hospice or community organizations. Don’t be afraid to seek professional help, but if you do, ask about the person’s training, qualifications, and experience with grief, loss, and bereavement. We grieve as deeply as we love. We can get off track with love, and we can respond to our grief in ways that aren’t healthy, or don’t serve us well. But let’s not make love, or grief, a mental disorder.
This document was written by a group of concerned professionals in response to the release of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders ( DSM-5). Thomas Attig, PhD, Professor Emeritus in Philosophy, Bowling Green State University Inge B.Corless, RN, PhD, FAAN, Professor, MGH Institute of Health Professions, Boston, MA Kathleen R. Gilbert, PhD, Executive Associate Dean, Indiana University School of Public Health, Bloomington, IN Dale G.Larson, PhD, Professor, Department of Counseling Psychology, Santa Clara University, CA Mal McKissock, OAM, Director of Clinical Services, Bereavement Care Centre, Sydney, Australia David Roth, Executive Director, Puetz-Roth Funerals and Grief Companions, Bergisch Gladbach, Germany Donna Schuurman, EdD, FT, Executive Director, The Dougy Center for Grieving Children & Families, Portland, OR Phyllis R. Silverman, PhD, Scholar-in-Residence, Women’s Studies Research Center, Brandeis University, Waltham, MA J. William Worden, PhD, ABPP, Psychologist, Laguna Niguel, CA. We would like to acknowledge the International Work Group on Death, Dying and Bereavement (IWG) for the opportunity to develop these ideas. This statement represents the opinions of the authors, not the opinions of the Board or membership of the IWG.