THE EX-WIFE of a man convicted of encouraging another man to sexually touch a child has asked to read a victim impact statement despite not being a direct victim of his crimes, in what could set a precedent for who can be heard in criminal cases.
In Newcastle District Court on Tuesday, Judge Roy Ellis was set to sentence Danny Glenn Waters for his involvement in an explicit online chat about child sexual abuse on an LGBTQI+ dating app in January, 2020, when he was asked to consider a statement from the man's ex-wife.
"I've been sitting here for 20 years and I've never seen it done," he said. "I was sitting down where you are for 20 years and I never did it."
Judge Ellis said he felt allowing the statement could open "Pandora's box", and that even if he did, he wasn't sure what weight it could or should be given in sentencing.
He questioned whether the statement could shed any light on the accused's moral culpability, objective seriousness or prospects or rehabilitation.
"We're not a court of morals, maybe we ought to be but we're not," he said.
"I just wonder why it is after hundreds of years of our criminal system that we don't have any clear authority on this - because it doesn't happen, but I'm not too keen on being the first person."
He recognised the law allows people who have been accused of a crime to put forward statements in their favour to a greater extent than the prosecution can against them.
Judge Ellis pointed out that even without the ex-partner's statement he could reasonably expect there would be negative impacts on the family despite not being direct victims of the crime.
Waters' barrister made the case that there was a reason why it had not happened before, arguing that to let it be submitted would amount to an "error of law".
"The reason the Crown struggle to identify the purpose is because if you look into the legislation that governs the laws of what can be taken into account you hit one brick wall after another," he said.
"There are a number of requirements relating to victim impact statements, none of which would apply here to someone who as far as the legislation is concerned is not a victim - another brick wall.
"It's another reason why the law doesn't take these into account and why this hasn't been done before."
Waters has pleaded guilty to his involvement in an online chat with two other men, who cannot be named, where he sent multiple messages regarding child sexual abuse and a picture of his penis.
Judge Ellis will make a judgement on whether to accept the victim impact statement on Friday, when Waters will be sentenced.
Waters will remain on bail until then.
