THE ROLE OF VICTIMS IN THE CRIMINAL JUSTICE SYSTEM
Victims as informers and witnesses
11.1 From early times, the State has prosecuted those accused of crimes in adversarial proceedings to which the victim of the crime is not a party.1 In practice, the victim’s involvement in the prosecution of offences has varied from time to time,2 but, at least since the emergence of police forces and of State officers responsible for the enforcement of the criminal law, the management of prosecutions has been undertaken primarily by the State.3 Victims still retain a right to commence private prosecutions, but the Director of Public Prosecutions can at any time take over and discontinue such proceedings.4
11.2 The public interest is the paramount factor influencing the State in the management of criminal prosecutions.5 Generally, this means that, while victims’ views are taken into account when decisions are made about prosecutions, their views are not determinative, since “[i]t is the public, not any private, interest that must be served”.6 More specifically, however, the interests of victims form part of the public interest to the extent that the decision not to prosecute is informed, amongst other matters, by:
- the attitude of the victim of the alleged offence to a prosecution; and
- any entitlement of the victim to criminal compensation, reparation or forfeiture if prosecution action is taken.7
11.3 In practice, the role of victims in criminal prosecutions is usually limited to reporting the offence and to acting as a witness at the trial if required.
The victims’ movement
11.4 Concern about the relegation of victims to an essentially passive role in the criminal justice system has its intellectual roots in the emergence of victimology as a discipline in the late 1940s.8 The development of a “victims’ movement”, advocating a “proper place” for victims in the criminal justice system, has been one manifestation of that concern. The victims’ movement was clearly identifiable in the United States and England by the early 1970s, with victim support groups surfacing in England at the local level.9 The movement began to emerge in Australia in the early 1980s.10 The movement was fuelled by the attention given to domestic violence and sexual assault in feminist and other literature,11 and by the emphasis given to the notion of retribution inherent in “just deserts”, then increasingly becoming the dominant factor in sentencing theory and policy.12 Since the 1980s, official inquiries have specifically considered the role of victims in the criminal justice system in many jurisdictions, including the USA,13 Canada,14 South Australia,15 New South Wales,16 Victoria,17 Tasmania18 and the Australian Capital Territory.19 The role of victims in sentencing has also been considered in the course of sentencing inquiries.20
11.5 The activities of the 1980s have had practical results in two broad respects.21 First, recognition has been accorded to victims’ needs for consideration and special services. Secondly, but less extensively, victims have been given procedural rights in the criminal justice system, including rights at the point of sentencing.
Responding to victims’ needs
International norms
11.6 The General Assembly of the United Nations has adopted a Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power.22 The Declaration enumerates basic standards for the treatment of victims by attempting to guarantee and strengthen their position in four respects:
1. Access to justice and fair treatment.23 The key provision is that victims should be treated with “compassion and respect for their dignity”. They are entitled to access to the mechanisms of justice (including being informed of their rights in seeking redress through such mechanisms) and to prompt redress (through formal and informal procedures) for the harm they have suffered. Judicial and administrative responses to victims should be facilitated by: informing victims of the progress of the proceedings and providing them with proper assistance through those proceedings; taking measures to minimise delays and inconvenience to them and protecting their safety and privacy; and, allowing their views and concerns “to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”.
2. Restitution.24 Here the key provision envisages that offenders or third parties responsible for their behaviour should, where appropriate, make “fair restitution” to victims, their families or dependants (including the return of property or payment for the harm suffered, reimbursement of expenses incurred as a result of the victimisation, the provision of services and the restoration of rights).
3. Compensation.25 This endeavours to ensure State-funded compensation for victims who are unable to obtain it from the offender.
4. Assistance.26 The object of this section is to ensure that victims “receive the necessary material, psychological and social assistance through governmental, voluntary, community-based and indigenous means”.
The position in New South Wales
11.7 International norms have influenced the position of victims in all Australian jurisdictions.27 In New South Wales, they are reflected in a Charter of Victims’ Rights, which establishes administrative guidelines designed to secure “minimum standards for the fair treatment of victims by New South Wales Government Agencies involved with justice, health and community services”.28 In addition, the Director of Public Prosecutions in New South Wales has implemented procedures and policies designed to give effect to those standards. They include:29
- the establishment of a Witness Assistance Service (staffed by officers with social welfare qualifications) to provide support and assistance for witnesses during the prosecution process;
- the production of information pamphlets for victims and witnesses;
- the establishment of a Sexual Assault Liaison officer who liaises with government departments and external agencies to develop co-operative efforts in relation to victims and witnesses and participates in training and educational programs;
- the establishment of a Review Committee on Sexual Assault Prosecutions (with representation from other agencies and the public) which has produced, amongst other things, Interagency Guidelines for Responding to Adult Victims of Sexual Assault;
- ongoing officer training and community education on issues relating to victims and witnesses.
11.8 The New South Wales Government established a Victims Advisory Council in 1991. The Council comprises representatives from Government agencies representing the portfolio areas of Attorney General, Health, Community Services, Police and Women, and community representatives appointed by the Attorney General. The role of the Council, which meets each month, is largely advisory.30 The Council has already fulfilled a major term of reference by advising on the establishment of the community-based victims agency operated by the Sydney City Mission which the Council monitors, and which has been responsible for the production of a Victims’ Rights information brochure.
11.9 Victims of Crime is a 24 hour confidential telephone counselling and referral service conducted by the Sydney City Mission since 1993. Counselling is provided by telephone and face to face; legal advice is given; referrals are made to appropriate agencies which deal with particular types of victims (for example, domestic violence and homicide); and support is offered to victims otherwise not catered for. Information booklets for victims about going to court and coping with the ordeal are made available by the Service.
11.10 The Secretariat of the Serious Offenders Review Council maintains the Victims Register for the Department of Corrective Services. Registration is voluntary for victims of serious, usually violent, offences. It contains confidential information necessary for the SORC Secretariat to provide registered victims with information, advice and referrals. People on the Register are told about the progress of offenders throughout the sentence, their classification and location, and are informed when the offender has escaped, or is being considered for re-determination of a life sentence or access to external leave programs. They are also advised when the Offenders Review Board will be considering the offender’s eligibility for parole.31
11.11 Recently, the New South Wales Government has indicated that it is likely to introduce a package of initiatives to provide greater assistance to the victims of crime.32 The package may include the provision of a statutory Charter of Victims’ Rights; the establishment of a Victims of Crime Bureau; an overhaul of the victims compensation system; and a consideration of the provision of a statutory base for the reception in court of victim impact statements.33
11.12 While the Commission’s concern is only with the role (if any) which ought to be played by victims in the sentencing process, we record our unequivocal support for all those measures listed above which are aimed at addressing the needs of victims - including those designed to provide support services to victims; to inform victims of the prosecution process and of the movement of the offender through the criminal justice system; and to ensure adequate rights to compensation. We welcome the Government’s commitment to improve the position of victims in this respect by the establishment of a Victims of Crime Bureau.
Giving victims procedural rights in the criminal justice system
11.13 Some legal systems give victims procedural rights in the criminal justice system - for example, the right to be consulted on (or to veto) the decision to prosecute; the right to be consulted on the acceptance of a plea; the right to make submissions to sentencing or parole authorities; and the right to restitution from the offender.34 Some of these rights are relevant to sentencing and require consideration by the Commission. We have already considered reparation as an order ancillary to sentencing.35 At this point, it is necessary to consider whether or not victims should be accorded the right:
- to have victim impact statements put in evidence at the point of sentencing; and
- to make submissions to the Parole Board when consideration is given to an offender’s release on parole.
VICTIM IMPACT STATEMENTS (VIS)
The meaning of VIS
11.14 The right usually accorded to victims at sentencing is the option of making a VIS to the sentencing court. Very broadly, “VIS” refers to “a statement containing particulars of any injury suffered by any victim as a result of an offence”.36 That injury may, conceivably, be physical, psychological, social or financial. This description of VIS, whose form and content vary enormously, begs a number of difficult questions; in particular, the question of who will qualify as a “victim” for the purpose of making such a statement. The Commission addresses these questions below in the context of attempting to define the proper boundaries of VIS.37
The admissibility of VIS at common law
Problems with the admissibility of VIS
11.15 The prosecution may have to establish some injury or damage to the victim of a crime where that injury is an ingredient of the crime in issue. A clear example is assault causing actual bodily harm. More usually, the ingredients of the offence will not make their consequences relevant to the accused’s culpability. For example, to obtain a conviction for sexual assault, the prosecution must prove penetration and the absence of consent, but not harm to the victim. The extent of the harm actually suffered by the victim may, of course, come out at the trial; for example, in a sexual assault case the harm may emerge in the course of proving absence of consent. Or it may be put in evidence by the prosecutor where (as in cases of sexual assault or serious personal violence in New South Wales) the prosecutor is under a non-enforceable obligation to make known to the court the full effect of the crime upon the victim.38
11.16 Generally, however, there remains the real possibility that the full impact of the crime on the victim may not be known either at the trial or otherwise at the sentencing hearing. This is particularly likely to occur where there is a plea of guilty and the information available to the sentencing court is less than it would have been if the accused’s guilt had been put in issue at trial.39 Its occurrence is facilitated by the former tradition that the prosecutor’s role ceased once a conviction was obtained40 and, obviously to a lesser extent, by the current practice that the prosecutor must not press for a vindictive sentence.41
11.17 Where the court is unaware of the actual impact of the crime on the victim, it will assume that the victim suffers the “normal” consequences of the crime in question.42 For example, the courts will assume, in cases of sexual assault, that psychological or emotional harm has been done to the victim even though its extent is not known,43 especially where the victim is a child.44 Such assumptions about the impact of a particular offence are justified because the ingredients of the offence and any statutory maximum penalties attaching to it will have been defined in such a way as to reflect the seriousness of the impact on the victim of the offence.45 Therefore, viewing the crime solely by reference to its objective features, it follows that the more serious the crime, the greater the assumed harm and the greater the punishment. In this sense, it is true to say that courts have always taken into account the impact of criminal behaviour upon the victims of that behaviour.46
11.18 In the current state of the law and in the Commission’s view of what the law ought to be,47 a sentencing court must, in appropriate cases, have regard to the impact of the crime on the victim.48 Does this mean that where there is a clear divergence between the assumed and the actual impact of the crime on the victim, the court should receive a VIS to determine actual impact? Prima facie, assuming that the VIS is adequately drawn,49 an affirmative response would seem to be appropriate on common sense grounds. For a VIS is, potentially at any rate, capable of providing the best evidence of the objective seriousness of the offence.
11.19 There are, however, powerful arguments against the admissibility of VIS. The view that the impact of the crime on the victim is already known from the ingredients of the offence reflects the law’s policy of measuring an offender’s culpability by reference to his or her intention at the time of committing the crime, not by reference to the consequences of that crime. After all, from the offender’s point of view, those consequences may be unintended and not reasonably foreseeable. To the extent to which they are neither intended nor reasonably foreseeable, evidence of the actual impact of the crime on the victim at sentencing introduces an ingredient which is not relevant to the offender’s culpability.50 As the Victorian Sentencing Committee wrote:
The necessity for ... an objective assessment of impact on victims arises from the very nature of the criminal justice system itself, and in particular the underlying principles of what constitutes an act as criminal as opposed to a non-criminal act .... [I]t is the culpability of the offender as determined by his intent ... which determines the level of appropriate punishment, not simply the impact of the criminal act itself.51
The position in New South Wales
11.20 Notwithstanding both this argument and the existence of an unproclaimed section of the Crimes Act 1900 which provides for the admissibility of VIS,52 VIS have been admitted in New South Wales in several sexual assault cases where they have been thought to provide assistance to the court in the form of information (which it did not otherwise have) of the extent of psychological injury to the victim and hence of the objective seriousness of the offence.53 In some cases, they have proved of little value since they have not adequately addressed the impact of the crime on the victim.54
11.21 By contrast, VIS (which were unsworn and to whose admissibility objection was taken) were recently held inadmissible by Justice Dunford after a considered judgment in a homicide case.55 His Honour regarded a VIS as inappropriate in homicide cases because:
[I]t is ... difficult to see how such material could be relevant to the sentencing process. In particular it cannot be relevant to the objective seriousness of the offence. The primary victim is dead, a human life has been taken and each human life has an intrinsic value. The life of one homicide victim cannot, it seems to me, be of more intrinsic value than another because he or she comes from a close family with loving relatives.56
Legislation governing VIS
11.22 The uncertain status, or assumed inadmissibility, of VIS at common law has prompted legislation to provide for their admissibility in several jurisdictions, including the USA,57 Canada,58 New Zealand,59 South Australia,60 Western Australia,61 Victoria62 and the Australian Capital Territory.63 A section of the Northern Territory legislation which authorises a sentencing court to receive such information as it thinks fit to enable it to impose the proper sentence would clearly seem wide enough to encompass the receipt of VIS.64
Legislation in other Australian jurisdictions
South Australia
11.23 South Australia was the first Australian jurisdiction to provide legislatively for the admissibility of VIS. Section 7 of the Criminal Law (Sentencing) Act 1988 (SA) places an obligation on the prosecution, for the purpose of “assisting a court to determine sentence for an offence”,65 to provide the sentencing court with particulars of any injury, loss or damage resulting from the offence. That obligation arises where:
- the particulars are reasonably ascertainable;
- the particulars are not already before the court in evidence or a pre-sentence report; and
- the person suffering the injury, loss or damage has not requested the prosecutor to refrain from presenting the particulars.66
Non compliance or insufficient compliance with the section does not affect the validity of any sentence.67
11.24 An evaluation of the use of VIS in South Australia was undertaken in 1994.68 The evaluation looked at three issues: the effect of VIS on the criminal justice system; the effect of VIS on victim satisfaction with the criminal justice system; and the effect of VIS on sentencing outcomes. As far as sentencing outcomes were concerned, an analysis of aggregate sentencing trends in the higher courts found no evidence that VIS had changed the proportion of offenders receiving a sentence of imprisonment. Nor did it find VIS had changed the length of sentences of imprisonment that offenders received. Nor were VIS identified as a significant variable for discriminating between those cases resulting in sentences of imprisonment and those receiving community-based sanctions.69 The overall conclusion of the authors of the study is that its findings will provide support both for those who favour and for those who oppose the admissibility of VIS:
Opponents of VIS will point to the very minimal changes and improvements which have occurred as a result of the introduction of VIS. On the other hand, those in favour will argue that the evaluation dispels fears about their supposed detrimental effects and they will continue to maintain their belief in the presumed benefits of VIS if properly implemented.70
Victoria
11.25 The purpose of the Sentencing (Victim Impact Statement) Act 1994 (Vic) is to require courts in sentencing an offender to have regard to the impact of the crime upon the victim.71 The Act adds to the statutory list of items to which the Sentencing Act 1991 (Vic) requires a court to have regard in sentencing an offender, the following two factors: the personal circumstances of any victim of the offence; and any injury, loss or damage resulting directly from the offence.72 That injury, loss or damage may be brought to the attention of the court in a VIS made in writing by statutory declaration (or by a combination of such declaration and orally by sworn evidence). The court can rule the whole or any part of the VIS inadmissible. The court may, at the request of the prosecutor or offender, call a victim who has authored a VIS to give evidence, which will be subject to cross-examination and re-examination.73
11.26 Significantly, the Act defines “victim” as “a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender”.74 There are three important points to notice about this definition:
- VIS may be made by a “body” that is not a natural or a legal person.75
- “Victim” is intended to cover not only those against whom the offence was committed but also, in principle, all those who have suffered directly from the commission of the offence.76
- The inclusion of injury which was not reasonably foreseeable means that, for the purposes of sentencing, the actual consequences of the offence must be taken into account and, to this extent, the common law’s focus on the offender’s culpability is qualified.
Western Australia
11.27 The Sentencing Act 1995 (WA) provides the legislative base for the admissibility of VIS in Western Australia. The legislation is not unlike the Victorian in effect and only two points need to be noted:
- as in Victoria, the court must have regard to loss, injury or damage even where that was not reasonably foreseeable by the offender;
- unlike Victoria, the definition of “victim” expressly includes the immediate family of the deceased where the offence in question results in a death.77
Australian Capital Territory
11.28 The Acts Revision (Victims of Crime) Act 1994 (ACT) amends the Crimes Act 1900 by inserting a new Division 1 of Part XII which provides for the admissibility of VIS at sentencing. Three characteristics of the legislation are noteworthy:
- “victim” includes persons financially or psychologically dependent on the deceased where the offence in question results in a death;78
- VIS are only to be taken into account where the offender is guilty of an indictable offence for which the maximum penalty is a term of imprisonment of at least 5 years (whether or not any other penalty, including a fine, may be imposed);79
- a court is not permitted to draw any inference about the harm suffered by a victim from the failure of the victim to tender a VIS.80
New South Wales
11.29 There is no legislative base for VIS in New South Wales. There is, however, an unproclaimed section (s 447C) of the Crimes Act 1900 (NSW) which allows the District or Supreme Court, if it considers it appropriate to do so, to receive and consider a VIS prior to sentencing a convicted offender for an indictable offence involving an act of actual or threatened violence (including sexual assault).81 The VIS must be in writing and contain particulars of any injury suffered by any victim as a result of the offence. “Injury” is defined to mean bodily harm, including pregnancy, mental shock and nervous shock. “Victim” means a person against whom the offence was committed or who was a witness to the act of actual or threatened violence, and who has suffered injury.
11.30 The Sentencing Legislation (Amendment) Bill 1994 (NSW), which lapsed with the dissolution of Parliament before the State election in March 1995, proposed to amend this section (prior to its proclamation) to enable VIS to be given by or on behalf of a family representative of the victim if the victim is dead or under any incapacity. Another feature of the Bill was its provision that the absence of a VIS was not to give rise to an inference that an offence had little or no impact on a victim.
The Commission’s tentative view of the general admissibility of VIS
11.31 In approaching the task of deciding whether or not VIS should be admissible in sentencing hearings in New South Wales, the Commission has borne in mind that:
- The developing international norms concerning the place of victims in the criminal justice system do not require the admissibility of VIS.82
- The admissibility of VIS has not evoked a uniform response from other law reform bodies. The Community Law Reform Committee of the Australian Capital Territory has recently supported the admissibility of VIS,83 as, tentatively, had the Australian Law Reform Commission in a Discussion Paper in 1987.84 But the Australian Law Reform Commission finally reported against their admissibility in 1988,85 as did the Victorian Sentencing Committee.86 The Irish Law Reform Commission is divided on the issue.87
- Several Australian jurisdictions nevertheless now provide legislatively for the admissibility of VIS.88
- Victim support groups are not unanimous in their support of VIS, which formed one of the central debates at the 1994 eighth triennial symposium of the World Society of Victimology.89 While two victim support groups in New South Wales have, in preliminary consultations with the Commission, strongly supported the admissibility of VIS at the point of sentencing (especially in homicide cases),90 the opposite view has generally been taken by Victim Support, an organisation in the United Kingdom which provides advice and assistance to over 3 million victims of crime each year.91
11.32 The Commission’s tentative view on the general admissibility of VIS has also been informed by arguments advanced in legal, criminological and other literature.92 These arguments tend to focus on “moral, penological, and practical concerns rather than legal considerations”.93 They fall into three principal groups.
11.33 The first group focuses on the purposes of punishment, particularly retribution.94 The argument in favour of admissibility of VIS is that the court will be better able to give proper weight to retribution as a factor in sentencing when the level of harm to the victim is taken into account as an objective measure; an incidental result will be greater proportionality between sentences.95 The contrary argument is that emphasis on retribution smacks of mere vengeance, and, as the Full Court of the Federal Court has recently reminded us, “[v]engeance is not to be equated with justice”.96 Further, sentence disparity is a likely result of concentration on the effect of the offence on the victim,97 or of the inflation of the tariff ranges for those offences (eg sexual assault) in which VIS are given in practice.98 The “mere vengeance” argument is not supported by empirical work which suggests that victims are more concerned with a wider range of sentencing options (such as greater use of restitution and compensation orders) than simply with more punitive sentences.99
11.34 In the Commission’s view, reformation is a purpose much more likely to be furthered by the tendering of a VIS which confronts the offender with the consequences of the offence and which could, as with conferencing,100 prompt the offender to take responsibility for those consequences.101
11.35 The second group of arguments centres on supposed victim satisfaction which comes from participation in the sentencing process by making a VIS.102 The arguments here vary from appealing to the beneficial role which the making of a VIS can have on victims’ healing processes,103 to the assertion that the ability to make a VIS will lead to greater co-operation with the criminal justice system and hence lead to its greater efficiency.104 But empirical evidence tends to demonstrate that victim satisfaction with the criminal justice system comes from contentment with the sentence, not from the ability to make a VIS.105 Further, there is some empirical support for the argument that a failure to meet a victim’s unrealistic expectation of the effect which a VIS will have on the sentence, may result in greater disappointment and disillusionment with the criminal justice system than would have been the case if no VIS had been tendered.106 Again, the offender’s ability to cross-examine the victim on the VIS may have a deleterious effect on the victim’s health and welfare, rather than promote his or her recovery.107
11.36 The third group of arguments is procedural. The general admissibility of VIS, it is argued, would place intolerable pressure on an already overburdened system, resulting in increased delays and inefficiency. But the evidence from South Australia where (within the parameters of the legislation) VIS are mandatory, is that VIS are not tendered in the vast majority of cases, and, when they are, they do not tend to prolong trials.108
11.37 The Commission has concluded that the above arguments for and against the admissibility of VIS are inconclusive. Further, in so far as they argue against the general admissibility of VIS, they can largely be met by careful definition of what is meant by a VIS and of the particular circumstances in which VIS should be received.109
11.38 The Commission is, however, persuaded that, unless VIS are generally admissible, there is always a risk that the full impact of the crime on the victim may not be known to the court at the point of sentencing.110 The point has recently been stressed by Chief Justice Jeffrey Miles of the Supreme Court of the Australian Capital Territory who has written extra-curially:
The assumption may be too lightly made that the sentencing court will be in the possession of all relevant information about the effect on the victim, sufficient to enable the court to impose a just and appropriate sentence. This became particularly obvious to me over a number of years when I was required often to sentence on the basis that the offence had had little effect if any on the victim, only to be required later, sometimes years later, to hear an application for compensation by the victim which clearly established that the effect had been almost catastrophic.111
This frustration is echoed in a study of Victorian magistrates in Mention Courts who expressed dissatisfaction with having to guess the precise details of crimes.112 And the recent evaluation of the impact of VIS in South Australia has found that legal professionals are in agreement that the quantity (though not necessarily the quality) of information about victim harm has increased since the introduction of VIS in that State.113
11.39 Because the Commission believes that a sentencing court should have as much information as is available about the impact of the offence on the victim to assist the court in determining the objective seriousness of the offence, our tentative view is that, in principle, VIS should generally be admissible at sentencing.114
11.40 We have seen, in paragraph 11.19, that the objection to this conclusion is that it introduces an unwarrantable element into the sentencing process which appears to compromise the basis of the imposition of criminal responsibility on an offender. In the Commission’s view, this argument is not decisive if the purpose of admitting the VIS in evidence is borne in mind.115 The Commission is only suggesting that VIS should be admissible for the purpose of providing evidence of the objective seriousness of the offence. We are not suggesting that the consequences of the offence should determine the offender’s culpability.116 Nor are we suggesting that the consequences of the offence should be allowed to aggravate the sentence or to provide evidence of an aggravating circumstance.117 Further, we are not proposing any alteration in the principle that a sentencer cannot take into account in sentencing circumstances of aggravation which would have warranted conviction for a more serious offence.118 Thus, we do not support the extension of criminal responsibility in Victoria and Western Australia to include liability for injury which was not reasonably foreseeable.119
11.41 The Commission acknowledges the possibility that the purpose for which VIS are admissible could be misunderstood and that, by focusing on the victim’s account of the impact of the offence on her or him, the rights of the accused could be unacceptably compromised and sentences increased.120 It is important that this should not occur. As Justice Badgery-Parker has recently put it:
[T]he need which the criminal justice system exists to fulfil is the need to interpose between the victim and the criminal an objective instrumentality which, while recognising the seriousness of the crime from the victim’s point of view and, in the case of murder, the magnitude of the loss which the victim’s family and friends have sustained, attempts to serve a range of community interests which include but go beyond notions merely of retribution.121
11.42 In the Commission’s view, the dangers to which we have drawn attention in the last paragraph will be avoided if the purpose for which VIS are admissible are clearly spelled out and understood. In this respect, we are encouraged by the evidence from South Australia that the introduction of VIS has not had the effect of lengthening sentences.122 We are also encouraged by a Victorian study which suggests that greater information about the actual effects of an offence does not significantly affect sentence outcome, the key determinants remaining offence seriousness and prior record.123
11.43 The Commission is, therefore, tentatively of the view that (in the light of the uncertainties surrounding their admissibility at common law) the admissibility of VIS should be provided for by statute and that such legislation should expressly provide that a VIS is only admissible to afford “some measure of the seriousness of the offence”124 in order “to assist the court in deciding the proper sentence for the offender”.125
Restrictions on the admissibility of VIS
11.44 The Commission has considered whether or not there should be any exceptions to the general admissibility of VIS. Such exceptions could, conceivably, be dictated either by considerations relating to the efficient management of the criminal justice system or by considerations of principle. Considerations of efficiency could require either that restrictions be placed on the types of cases in which VIS are admissible or that the range of victims who are able to make VIS should be limited. Considerations of principle raise the question of whether or not VIS should be mandatory and admissible in homicide cases.
Types of cases in which VIS ought to be admissible
11.45 Considerations of efficiency may require that the tendering of VIS should be limited to prevent unnecessary delays in sentencing hearings which potentially arise if courts are required to give consideration to VIS in all cases, even those in which VIS can be of little use. VIS could, for example, be restricted generally to “serious” crimes, for empirical evidence from professionals in South Australia suggests that it is for such crimes (rather than for minor offences) that VIS are important.126 If so, the restriction could be drawn in three principal ways:
- “offence” could be limited by reference to a defined maximum penalty - the approach of the ACT legislation;127
- “offence” could be limited to offences of actual or threatened physical violence, including sexual assault - the approach of the unproclaimed s 447C(6) of the Crimes Act 1900 (NSW) and the context in which VIS have been admitted at common law in New South Wales;128 or
- “injury” could be defined in such a way as to exclude those consequences of the offence which are otherwise already before the court in evidence or in a pre-sentence report - the approach in South Australia.129
11.46 The Commission’s provisional conclusion is to favour the approach in the South Australian legislation. This approach accords with the rationale of VIS, namely, that of providing the court with evidence of the objective seriousness of the offence. If that evidence is already before the court, a VIS is unnecessary.
11.47 No argument of principle suggests any other limitation on the types of cases in which VIS should be admissible. And the evidence from South Australia is that, in practice, advantage is seldom take of the opportunity to tender VIS in the superior courts except in the case of serious crimes, and hardly ever in the magistrates’ courts.130
The definition of “victim” for the purposes of VIS
11.48 For the purposes of VIS, “victim” may be, and has been, defined in a number of different ways. At its narrowest, the “victim” of an offence is the person against whom the offence was committed and who suffers injury as a result of the offence. More broadly, “victim” is expanded to include a person who was a witness to the act of actual or threatened violence and who has suffered, or is likely to suffer, injury as a result of the offence;131 or to include a person who suffers injury in the course of assisting a police officer in the exercise of the officer’s power to arrest the accused person or to take action to prevent the commission of an offence of which the person is accused.132 Most expansively, “victim” includes any person who suffers loss or harm as a result of a criminal offence even where that offence was not committed directly against him or her;133 or at least any person who is a member of the immediate family or a dependant of the direct victim.134 This is particularly important in cases where the offence results in death.135
11.49 In the Commission’s view, the efficiency of the criminal justice system is potentially jeopardised if “victim” is widely defined for the purposes of the making of a VIS. Our tentative view is, therefore, that the definition of “victim” should be that in the unproclaimed s 447C(6) of the Crimes Act 1900 (NSW), that is, the definition should include a person who suffers injury as a result of the offence and who is the person against whom the offence was committed or who was a witness to the act of actual or threatened violence. We would also make provision for a VIS to be made by on behalf of such a victim where the victim is under any incapacity.136 This excludes, for reasons which we explain below,137 persons who are members of the immediate family or a dependant of a victim in homicide cases.
Proposal 39
For the purpose of VIS, the “victim” of an offence should be the person against whom the offence was committed or who was a witness to the act of actual or threatened violence and who suffers injury as a result of the offence. Provision should be made for a VIS to be made on behalf of a victim who is under any incapacity.
VIS at the victim’ s option
11.50 The Commission is of the view that, however defined, the victim of a crime has the right, for reasons of privacy or otherwise, to refuse to make a VIS or to request the prosecutor to refrain from presenting the court with details of the injury which the victim has suffered.138 For this reason we would not support a sentencing judge’s unqualified right to demand VIS from the victim or the prosecution.139 The court should not, in any case, draw any inference from the failure to provide a VIS.140
Homicide cases
11.51 Reservations have been expressed about the admissibility at common law of VIS in homicide cases.141 The Commission shares these reservations. In homicide cases, the consequence of the offence is always known. So is the objective seriousness of the offence. To admit VIS in such cases is ultimately to ask the court to assign differing values to the lives of homicide victims depending on their worth to their family, friends or community. In the Commission’s view, no court can, or ought to, perform such an exercise.142 Our view is, therefore, that VIS ought to be inadmissible in homicide cases.
11.52 Our tentative conclusion means that VIS will not generally be admissible in cases concerning the redetermination of life sentences under s 13A of the Sentencing Act 1989 (NSW), since most of the cases which arise under that section involve homicides. In those cases which do not, our tentative view is that the Supreme Court should receive VIS even though they are prepared after the court imposed the life sentence.143
Some procedural considerations
The preparation of VIS
11.53 The Commission recognises that the quality of a VIS is likely to be improved (and that hence it is likely to be of greater use to the court) if it is prepared with professional assistance (perhaps from the Victims of Crime Bureau which the government is proposing to establish).144 However, we recognise that there are resource and practical constraints on the professional preparation of VIS. Our preliminary view is that the legislation should not be prescriptive in this respect.
11.54 Regardless of who prepares the VIS, the Commission is of the view that it ought to be signed, or otherwise acknowledged as accurate, by the victim before it is received by the sentencing court.145
Tendering VIS at sentencing
11.55 The information in a VIS may be presented in a number of forms. Commonly, it is contained in an unsworn written statement. It can also be in the form of an affidavit, perhaps sworn as part of a pre-sentence report.146 In some United States jurisdictions, it can be an oral statement to the sentencing authority, sometimes referred to as a “right of allocution”. The Commission’s tentative view is that VIS should be sworn written statements.
11.56 The Commission is further of the view that, in our adversarial system, the only practical way in which VIS can be properly be put before the sentencing court is by the prosecution. We do not believe that this compromises the obligation of the prosecution to act in the public interest rather than be seen as the representative of a private client.147 In any event, we do not support any suggestion that victims ought to be made parties to criminal proceedings. Research conducted by the Australian Law Reform Commission during its reference on sentencing found little support for such a proposal.148
The contents of VIS
11.57 The Commission is of the view that a VIS ought to address the actual physical, psychological, social and financial consequences of the offence on the victim. Where the VIS deals with consequences which would normally be addressed by expert evidence (for example, the evidence of doctors or psychiatrists) reports from such witnesses should be attached to the VIS.149
11.58 The Commission is further of the view that it would be improper for VIS to address the question of the appropriate sentence which ought to be imposed on the offender.150 This relates both to the type of sanction which ought to be imposed and to its quantum.
Proposal 44
VIS should address the actual physical, psychological, social and financial consequences of the offence on the victim. They should not address the question of the appropriate sentence which ought to be imposed on the offender.
The role of the court and of the defence in relation to VIS
11.59 Because the contents of a VIS may be exaggerated, irrelevant or simply prejudicial to the offender,151 the Commission is of the view that a court should have the right in all cases to rule VIS inadmissible.152
11.60 The Commission is also of the view that the defence should always have the right to cross-examine the maker of a VIS on the statements made in it.153 This seems to us an inevitable consequence of the adversary system.154 Representatives of two victims groups have supported defence rights of cross-examination in preliminary consultations with the Commission.155 We note that the right of cross-examination on VIS has been rarely used in South Australia.156
VICTIMS AND THE PAROLE PROCESS
11.61 Since 1989 victims or their family representatives have had the opportunity to make submissions to the Offenders Review Board or the Serious Offenders Review Council. There is no statutory basis for this practice. It has been used in only a small number of cases.
11.62 The Serious Offenders Review Council will, in practice, receive written submissions from victims to inform its advice to:
- the Commissioner of Corrective Services about classification and pre-release leave of serious offenders, public interest prisoners, and other nominated inmates;
- the Offenders Review Board about parole of serious offenders; and
- the Supreme Court for the redetermination of a life sentence.157
While the practice of SORC is only indirectly relevant to sentencing and parole,158 the Commission is concerned that its practice of receiving written victim submissions could prejudice the rights of offenders. We simply do not understand how the views of victims are generally relevant to the functions of the SORC on matters such as security classification.159 Our concern is heightened by the fact that submissions made to SORC are not necessarily exposed to scrutiny or challenge by those affected.
11.63 The Offenders Review Board will receive written representations from victims at any time prior to its initial consideration of parole for any offender. Victims of serious offenders may be given leave to address the Board from the floor in a public Review Hearing held when the Board has formed an initial intention to refuse parole. They will not be permitted to give sworn evidence or cross-examine other witnesses. When the Board is aware that a victim or victim’s representative wishes to make an oral submission, it is the practice to ensure a Review Hearing takes place so as to afford an opportunity for that submission to be made at a public forum, in the presence of the offender.
11.64 The Sentencing Legislation (Amendment) Bill 1994 contained a series of proposals which would require the Offenders Review Board to consider submissions from the victim (or a family representative if the victim is dead or incapacitated) before a decision was made to release a “serious offender” on parole. The draft legislation proposed in detail the procedures by which victims or their representatives would be notified of the impending consideration of parole eligibility, and given a reasonable opportunity to make relevant written or oral submissions (or both) at a Review Hearing, whether or not the Board formed an initial intention to grant parole. Similar rights to make submissions to the Board irrespective of their initial intentions would be given to the offender under the proposed Bill. The effect of these procedures would be to ensure the necessity for only one hearing to consider parole eligibility. It was to be left to Regulations to prescribe in detail how victims entitled to benefit from the legislation would be identified; how they would be notified; and when no notice would need to be given to them.
The Commission’s tentative view on victims’ submission on release of offenders
11.65 The Offenders Review Board makes a parole order only when it has determined, after considering certain information and any relevant matter, that release of the prisoner is appropriate having due regard to the principle that the public interest is of primary importance.160 The Commission considers that submissions from victims potentially constitute matter relevant to the parole decision and so should be considered by the parole authority.
11.66 The arguments on which this position rests are different from those supporting the admissibility of VIS to a sentencing court. The parole decision is not a matter of punishment, so that the victim’s evidence of the harm suffered which better illuminates the objective seriousness of the offence is not relevant. Rather, the parole decision requires consideration of the public interest on the best available information. The victim is an integral part of the public interest and may have information relevant to it which is otherwise unavailable to the Board. The victim’s perspective on the “antecedents of the prisoner and any special circumstances of the case” or “any other relevant matter”, may not otherwise be available to the Board.161 Examples may be threats made to harm the victim, the victim’s family, witnesses, or any other person; the victim’s fears relating to the offender’s behaviour on release; evidence of the circumstances of the offence which has come to light since, or was not revealed at, the trial; and evidence of the offender’s behaviour during the time in custody.
11.67 As with VIS, there is a danger that the purpose of making a victim submission to the ORB could be misunderstood.162 The only purpose for which victims should be able to make submissions is to inform the statutory criteria on which the Board decides whether to make a parole order. Such submissions should not be an occasion for vengeance or for gratuitous attempts to extend the offender’s term of imprisonment.
11.68 It follows that victims are in no different position to any other person who may be able to provide the Board with information relevant to the parole decision. The Commission is satisfied that the existing practice of the Board, outlined in paragraph 11.63, facilitates the reception of such information.
11.69 The Commission is also satisfied that offenders have the opportunity at a review hearing to dispute the contents of any written submission which victims or others have placed before the Board (except submissions withheld under s 49 of the Sentencing Act 1989 (NSW)).163 Offenders do not, however, have the opportunity of cross-examining a victim on an oral unsworn statement made at a review hearing. In practice, this probably does not matter since the Board limits the contents of such statements to the victims’ feelings about the release of the offender - that is, to matter which is inherently not generally susceptible to challenge. There is, however, always the possibility that a victim may include matter in an oral statement which the offender may wish to challenge. If the Board continues to allow victims to make oral statements at a review hearing, such statements should, in the Commission’s view, be given on oath and subject to cross-examination. We would prefer, however, that all submissions relevant to the parole decisions which are made to the Board, by victims or others, should be sworn, in writing and subject to cross-examination by the offender. We invite submissions on this issue.
QUESTIONS ARISING IN CHAPTER 11
1. Should VIS be admissible in sentencing hearings in New South Wales?
2. If so, for what purpose?
3. Who should be able to make VIS?
4. Should the decision whether or not to make a VIS always be the option of the person who has the capacity to make one?
5. Who should tender VIS at the sentencing hearing?
6. Should VIS always be in writing or should they be allowed to be presented orally?
7. What should VIS contain? In particular:
- should they address particulars which are already before the court in evidence or in pre-sentence reports?
- should they be allowed to address the question of what sentence should be imposed on the offender?
8. Should there be any restrictions on the types of cases in which VIS are admissible? In particular, should VIS be admissible in homicide cases?
9. Should the maker of a VIS always be subject to cross-examination on its contents?
10. Ought victims to be able to make submissions about parole decisions to the Offenders Review Board?
11. What issues should victim submissions on parole address?
12. To what extent ought victims to be subject to cross-examination or questioning, by the prisoner or the Board, about the contents of their submissions?
13. Are there any special rules which ought to apply to victim submissions to the Board, as opposed to submissions from persons generally?
FOOTNOTES
1. On the origins of criminal procedure, see W S Holdsworth, A History of English Law (3rd ed, Methuen & Co, 1923) Volume 2 at 197-199, 257, 360; Volume 3 at 620-623.
2. For example, in the eighteenth century more than 80% of indictable offences were prosecuted by the victims of crime or their agents who had significant control over the proceedings: see D Hay, “Controlling the English Prosecutor” (1983) 21 Osgoode Hall Law Journal 165 at 167-172. The advantage of control was offset by the trouble and expense of prosecution (see Holdsworth, Volume 15 at 160) and by the danger of neighbourhood reprisal following an unpopular prosecution: see C Emsley, Crime and Society in England 1750-1900 (Longman, 1987) at 139-140.
3. See Hay at 172-180; J Ll J Edwards, The Law Officers of the Crown (Sweet & Maxwell, London, 1964) at Chapters 16 and 17. The outlines of the modern system of managing prosecutions were emerging by the end of the nineteenth century: see J F Stephen, A History of the Criminal Law of England (Macmillan & Co, 1883) Volume 1 at Chapter XIV. For a statement of the modern law, see R G Fox, Victorian Criminal Procedure: State and Federal (Monash Law Book Co-operative, Clayton, 1995) at 27-31. See also G Williams, “The Power to Prosecute” [1955] Criminal Law Review 596 and 668.
4. New South Wales, Office of the Director of Public Prosecutions, Prosecution Policy (Sydney, December 1995) at 7.
5. Office of the Director of Public Prosecutions, Prosecution Policy at 4.
6. Office of the Director of Public Prosecutions, Prosecution Policy at 8.
7. Office of the Director of Public Prosecutions, Prosecution Policy at 5.
8. The leading foundational study is H von Hentig, The Criminal and His Victim (Yale UP, New Haven, 1948).
9. See L Zedner, “Victims” in M Maquire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology (Clarendon Press, Oxford, 1994) at 1227-1229.
10. See A Goodwin, Services for Victims of Crime in Australia (NSW Bureau of Crime Statistics and Research, February 1986); Australian Capital Territory, Community Law Reform Committee, Victims of Crime (CLRC 6, August 1993) at 22-23.
11. See New South Wales Task Force on Services for the Victims of Crime, Report and Recommendations (Sydney, February 1987) at 29.
12. See B L Smith, “Trends in the Victims Rights Movement and Implications for Future Research” (1985) 10 Victimology 34 at 35. On “just deserts”, see paras 3.3-3.5.
13. USA, President’s Task Force on Victims of Crime, Final Report (US Government Printing Office, Washington DC, 1982).
14. Canada, Federal-Provincial Task Force on Justice for the Victims of Crime, Report (Canadian Government Publishing Centre, Ottawa, 1983).
15. South Australia, Committee of Inquiry on Victims of Crime, Report (Attorney-General’s Department, Adelaide, January 1981)
16. New South Wales Task Force on Services for the Victims of Crime, Report and Recommendations (Sydney, February 1987).
17. Parliament of Victoria, Legal and Constitutional Committee, Report to Parliament Upon Support Services for Victims of Crime (Government Printer, Melbourne, 1987).
18. Tasmania, Department of Justice, Report of the Inter-Departmental Committee on Victims of Crime (Hobart, December 1989).
19. Australian Capital Territory, Community Law Reform Committee, Victims of Crime (CLRC 6, August 1993).
20. Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) para 458; Australian Law Reform Commission, Sentencing: Procedure (DP 29, 1987) paras 68-74; Australian Law Reform Commission, Sentencing (ALRC 44, 1988) paras 191-192; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, 1987) at 68-69, 114, 415-417; Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, April 1988) Volume 2 at Ch 13; Ireland, Law Reform Commission, Consultation Paper on Sentencing (Dublin, March 1993) at 329-337.
21. Consider A Ashworth, “Victim Impact Statements and Sentencing” [1993] Criminal Law Review 498 at 499.
22. A/RES/40/34 (29 November 1985) (hereafter UN Declaration). The Declaration appears as Appendix H to New South Wales, Office of the Director of Public Prosecutions, Prosecution Guidelines (Sydney, December 1995).
23. UN Declaration at paras 4-7.
24. UN Declaration at paras 8-11.
25. UN Declaration paras 12-13.
26. UN Declaration paras 14-17.
27. All State Governments have issued Declarations or Charters of Victims’ Rights which enumerate administrative guidelines designed to secure the fair treatment of victims by government bureaucracies. The guidelines have legislative force in the ACT (Victims of Crime Act 1994) and Western Australia (Victims of Crimes Act 1994 s 3(1) and Sch 1). The legislation in WA specifically provides that it does not create any legally enforceable rights: Victims of Crimes Act 1994 s 3(3). See also Victims of Offences Act 1987 (NZ) and Sentencing Legislation (Amendment) Bill 1994 (NSW).
28. The Charter appears as Appendix G to New South Wales, Director of Public Prosecutions, Prosecution Guidelines (Sydney, December 1995).
29. See N Cowdrey, “The Role of Victims in the Sentencing Process”, paper presented at the NSW Law Reform Commission’s Seminar on the Role of Victims in the Sentencing Process, Parliament House, Sydney, 4 October 1995, at 9-12.
30. Terms of reference for the Council are to: assess all services provided to victims by government agencies and community organisations; co-ordinate services to ensure they are complementary; disseminate information about the services available for victims; identify inadequacies in victim assistance; and advise on establishment and funding of a community based victims agency.
31. SORC’s role in this respect may, appropriately, be assumed by the Victims of Crime Bureau when established: see para 11.11.
32. See Hon J Shaw QC, “A Reformist Agenda for NSW” (1995) 33 Law Society Journal 64 at 64-65. These suggested reforms reflect the Government’s pre-election platform: see para 1.7.
33. On victim impact statements, see paras 11.14-11.60.
34. See generally C J Sumner, “Victim Participation in the Criminal Justice System” (1987) 20 ANZ Journal of Criminology 195.
35. See paras 10.24-10.44.
36. Crimes Act 1900 (NSW) s 447C(2). This section has not been proclaimed.
37. See 11.44-11.60.
38. See New South Wales Charter of Victims’ Rights, Appendix G to Office of the Director of Public Prosecutions, Prosecution Guidelines (December 1995) under heading “What rights does the Charter confer?”.
39. Consider E Erez, L Roeger and F Morgan, Victim Impact Statements in South Australia: An Evaluation (Office of Crime Statistics, South Australian Attorney-General’s Department, Series C No 6, 1994) at 39 (legal professionals agreed that VIS critical in guilty plea cases).
40. “[I]t is no longer the case (if ever it was) that the Crown has no active role to play in the sentencing process”: see New South Wales, Director of Public Prosecutions, Prosecution Guidelines (December 1995) at para 17. And see J Miles, “The Role of the Victim in the Criminal Process: Fairness to the Victim and Fairness to the Accused” (1995) 19 Criminal Law Journal 193 at 203.
41. See New South Wales, Barristers’ and Solicitors’ Rules Rule 71, affirmed in New South Wales, Office of the Director of Public Prosecutions, Prosecution Guidelines (December 1995) at para 17.
42. For example, R v Muldoon (NSW CCA, No 60513/90, 13 December 1990, unreported) at 2 (child victim’s reluctance to discuss sexual abuse, anger at accused, shame at what had occurred, anxiety at having to give evidence and relief at having done so - all factors normally assumed without any formal assessment).
43. See R v Myer (1984) 35 SASR 137 at 139 per Wells J.
44. Myer at 139; R v Bielaczek (SC NSW, No CD70212/90, 19 March 1992, Badgery-Parker J, unreported) at 5-6.
45. See Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Committee (Melbourne, 1988) Volume 2 at paras 13.3.13-13.3.15.
46. R v RKB (NSW CCA, No 60344/1990, 30 June 1992, unreported) per Badgery-Parker J at 5 (McInerney and Loveday JJ agreeing).
47. See paras 5.29-5.37.
48. Especially R v RKB (NSW CCA, No 60344/1990, 30 June 1992, Badgery-Parker J (McInerney and Loveday JJ agreeing), unreported) at 5.
49. See especially para 11.59.
50. Except where the consequences of the offence determines the level of its severity, as in the case of dangerous driving where distinctions are drawn between the consequences of “death”, “grievous bodily harm” and “impact”: see Crimes Act 1900 (NSW) s 52A.
51. See Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Committee (Melbourne, 1988) Volume 2 at para 13.3.9.
52. Crimes Act 1900 (NSW) s 447C (discussed in paras 11.29-11.30). In R v Church (SC, NSW, No 70134/91, 16 July 1993, unreported) at 6-7, Wood J held that the existence of s 447C and the fact that it has not been proclaimed do not give rise to the conclusion that VIS are inadmissible at common law.
53. See esp R v Church (NSW, SC, No 70134/91, 16 July 1993, Wood J, unreported) at 5, and authorities there cited. See also R v Bielaczek (NSW SC, CD70212/90, 19 March 1992, Badgery-Parker J, unreported). And consider R v Cowan (NSW CCA, No 60363/1988, 15 February 1990, unreported); R v Nichols (NSW CCA, No 60457/91, 12 November 1991, unreported), R v PJP (NSW CCA, No 60025/92, 9 July 1992, unreported); R v Jones (1993) 70 A Crim R 449.
54. See R v Muldoon (NSW CCA, No 60513/1990, 13 December 1990, unreported). Justice Dunford has informed the Commission that, in sexual abuse cases, VIS prepared by psychologists or social workers are often unhelpful and irrelevant since they merely reproduce a collection of findings on the commonly experienced effects of such abuse: Submission 7 August 1995.
55. R v De Souza (NSW SC, No 70105/94, 10 November 1995, Dunford J, unreported). To the same effect (and for similar reasons) is the decision of the Supreme Court of Victoria in R v William Penn (Vic CCA, 9 May 1994, Crockett, Southwell and Vincent JJ, unreported) at 6. Compare two earlier unreported NSW cases which Dunford J distinguishes in De Souza at 3. And compare the approach in a recent Queensland cases where the mother of a homicide victim was allowed to read a VIS approved by the judge (Justice de Jersey): see “Court Allows Mum to Confront Son’s Killer” Courier Mail, 11 November 1995, at 3.
56. De Souza at 3.
57. See P A Talbert, “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision” (1988) 36 UCLA Law Review 199.
58. See C C Ruby, Sentencing (4th ed, Butterworths, Toronto, 1994) at 399-401.
59. As a consequence of the Victims of Offences Act 1987 s 8(1). See G Hall, “Victim Impact Statements: Sentencing on Thin Ice?” (1992) 15 New Zealand Universities Law Review 143.
60. Criminal Law (Sentencing) Act 1988 (SA) s 7.
61. Sentencing Act 1995 (WA) s 24-26, replacing Victims of Crime Act 1994 (WA) s 4-5: see Sentencing (Consequential Provisions) Bill 1995 (WA) Pt 78.
62. Sentencing (Victim Impact Statement) Act 1994 (Vic).
63. Acts Revision (Victims of Crime) Act 1994 (ACT).
64. Sentencing Act 1995 (NT) s 104(1).
65. Criminal Law (Sentencing Act) 1988 (SA) s 7(1).
66. Criminal Law (Sentencing Act) 1988 (SA) s 7(1) and (2).
67. Criminal Law (Sentencing Act) 1988 (SA) s 7(3).
68. E Erez, L Roeger and F Morgan, Victim Impact Statements in South Australia: An Evaluation (Office of Crime Statistics, South Australian Attorney-General’s Department, Series C No 6, August 1994). For a discussion see M Hinton, “Expectations Dashed: Victim Impact Statements and the Common Law Approach to Sentencing in South Australia” (1995) 14 University of Tasmania Law Review 81.
69. Erez, Roeger and Morgan at Chapter 4.
70. Erez, Roeger and Morgan at viii.
71. Sentencing (Victim Impact Statement) Act 1994 (Vic) s 1.
72. Sentencing Act 1991 (Vic) s 5(2)(da) and (db).
73. See generally Sentencing Act 1991 (Vic) Part 6 Division 1A; Children and Young Persons Act 1989 (Vic) s 136A.
74. Sentencing Act 1991 (Vic) s 3 (“victim”).
75. The Explanatory Memorandum to the Bill stated that the inclusion of “bodies” is intended to cover “situations where the victim of a crime is not a legal person such as an unincorporated association or a government department”.
76. The Explanatory Memorandum to the Bill reads: “It is intended that the definition of victim may include for example the parent of a child who has been sexually assaulted or the relatives of a murder victim and whether a person falls within the definition of a victim may be determined by the sentencing court on a case by case basis.”
77. Sentencing Act 1995 (WA) s 13.
78. Crimes Act 1900 (ACT) s 428Y.
79. Crimes Act 1900 (ACT) s 429AB(4) (“offence”).
80. Crimes Act 1900 (ACT) s 429AB(1)(b).
81. Section 447C was inserted into the Crimes Act 1900 (NSW) by the Crimes (Sentencing) Amendment Act 1987 (NSW).
82. Para 6(b) of the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power requires that the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by “[a]llowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”. Even assuming that the “personal interests” of the victim are affected by the sentence imposed on the offender, VIS are still only required if they are consistent with the national criminal justice system and do not prejudice the accused.
83. Community Law Reform Committee of the Australian Capital Territory, Victims of Crime (CLRC 6, 1993) at paras 106-195.
84. Australian Law Reform Commission, Sentencing: Procedure (DP 29, 1987) paras 68-74.
85. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) paras 191-192.
86. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, April 1988) Volume 2 at Ch 13.
87. Ireland, Law Reform Commission, Consultation Paper on Sentencing (Dublin, March 1993) at 337.
88. See paras 11.23-11.28.
89. R Harding, “Equal Time for Victims” The Bulletin, 13 September 1995, at 37.
90. Consultation with representatives of Homicide Victims Support Group and Enough is Enough, Sydney, 13 November 1995.
91. See Helen Reeves, “The Growth of Policies and Services for the Victims of Crime in the UK 1974-1994”, Annual Oration 1994 for the South Australian Justice Administration Foundation Inc (Adelaide, 15 August 1994) at 12-13.
92. For a summary of these arguments see G Griffith, Victim Impact Statements (NSW Parliamentary Library, Briefing Note 007/95, March 1995) at 19-27.
93. E Erez, “Victim Participation in Sentencing: Rhetoric and Reality” (1990) 18 Journal of Criminal Justice 18 at 22.
94. See especially See P A Talbert, “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision” (1988) 36 UCLA Law Review 199 at 211-219.
95. See, for example. C J Sumner and A C Sutton, “Implementing Victims’ Rights - An Australian Perspective” (1990) 1 Journal of the Australasian Society of Victimology 4 at 6.
96. R v P (1992) 39 FCR 276 at 281 per Burchett, Miles and O’Loughlin JJ.
97. Though this has not occurred in South Australia: E Erez, L Roeger and F Morgan, Victim Impact Statements in South Australia: An Evaluation (Office of Crime Statistics, South Australian Attorney-General’s Department, Series C No 6, 1994) at 40. But see A Willinge, “The Rights of Offenders and the Needs of Victims: The Challenge of Victim Impact Statements” paper delivered at the Fifth International Criminal Law Congress, Sydney, 26-30 September 1994, at 2-7.
98. See Willinge at 7-9.
99. Erez, Roeger and Morgan at 58.
100. See paras 9.65-9.95.
101. See P A Talbert, “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision” (1988) 36 UCLA Law Review 199 at 217-219.
102. Erez, Roeger and Morgan at 3-4.
103. See, for example, E Erez, “Victim Participation in Sentencing: Rhetoric and Reality” (1990) 18 Journal of Criminal Justice 18 at 23-24.
104. See, for example, M McLeod, “Victim Participation at Sentencing” (1986) 22 Criminal Law Bulletin 501 at 505-507.
105. See E Erez and P Tontodonato, “Victim Participation in the Sentencing and Satisfaction with Justice” (1992) 9 Justice Quarterly 394; Erez, Roeger and Morgan at 54-56, 58-59. See also R C Davis and B E Smith “Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise” (1994) 22 Journal of Criminal Justice 1.
106. See Erez, Roeger and Morgan at 57. See also M L Sides QC, Submission (10 October 1995) at 3.
107. Consider Erez, Roeger and Morgan at 70 (victims whose input was challenged were angry or upset by the challenge).
108. Erez, Roeger and Morgan at 40-41.
109. See paras 11.44-11.60.
110. See para 11.16.
111. J Miles, “The Role of the Victim in the Criminal Process: Fairness to the Victim and Fairness to the Accused” (1995) 19 Criminal Law Journal 193 at 203.
112. See R Douglas and K Laster, Reforming the Peoples’ Court: Victorian Magistrates’ Reaction to Change (Australian Criminology Research Council, 1992) at 56. One reason for the lack of evidence of victim impact in Victorian Magistrates’ Courts is that information tends to get “lost” between the time at which the offence is reported to the police and charge is laid: see R Douglas and K Laster, “Systematising Police Summaries in the Mention Court: Victim Impact Statements Through the Back-Door” (School of Law and Legal Studies, La Trobe University, unpublished paper, 1994) at 9-14. For a summary of the research, see “Victims of Efficiency? Restoring Lost Victim Information in the Summary Court” (1994) 6 Quarterly Journal of the Australian Institute of Criminology 18
113. E Erez, L Roeger and F Morgan, Victim Impact Statements in South Australia: An Evaluation (Office of Crime Statistics, South Australian Attorney-General’s Department, Series C No 6, 1994) at Chapter 2.
114. We except homicide cases at paras 11.51-11.52.
115. This point is made in R v Bielaczek (SC, NSW, No CD70212/1990, 19 March 1992, unreported) at 8 per Badgery-Parker J.
116. Unless the offence definition specifically so provides, as in the case of dangerous driving: see Crimes Act 1900 (NSW) s 52A.
117. As seems to be suggested in a note by A L Goodhart in (1964) 80 Law Quarterly Review at 18-21.
118. R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ, with whom Mason and Murphy JJ agreed. And see para 11.17.
119. See paras 11.25-11.27.
120. See Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Committee (Melbourne, 1988) Volume 2 at paras 13.3.19. See also A Willinge, “The Rights of Offenders and the Needs of Victims: The Challenge of Victim Impact Statements” paper delivered at the Fifth International Criminal Law Congress, Sydney, 26-30 September 1994, at 1-16.
121. R v Cribb (NSW CCA, No 60892/93, 4 November 1994, unreported) at 26.
122. See para 11.24. See also D G Kilpatrick, R P Tidwell and E Walker, Final Report on Victims Rights and Services in South Carolina: The Dream, the Law and the Reality (Crime Victims Research and Treatment Centre, Medical University of South Carolina, 1989) at 24.
123. R Douglas and K Laster, “Systematising Police Summaries in the Mention Court: Victim Impact Statements Through the Back-Door” (School of Law and Legal Studies, La Trobe University, unpublished paper, 1994) at 14-18. The paper is summarised in “Victims of Efficiency? Restoring Lost Victim Information in the Summary Court” (1994) 6 Quarterly Journal of the Australian Institute of Criminology 18 at 19.
124. R v Bielaczek (NSW SC, CD70212/90, 19 March 1992, Badgery-Parker J, unreported) at 8.
125. See Victims of Crime Act 1994 (WA) s 4(1).
126. Erez, Roeger and Morgan at 39.
127. Crimes Act 1900 (ACT) s 429AB(4) (“‘offence’ means an indictable offence for which the maximum penalty is a term of imprisonment for a term of at least 5 years (whether or not any other penalty, including a fine, may be imposed”).
128. See para 11.20.
129. Criminal Law (Sentencing) Act 1988 (SA) s 7(1).
130. Erez, Roeger and Morgan at vii, 40-41.
131. See Crimes Act 1900 (NSW) s 447C(6)(“victim”) (this section has not been proclaimed: see para 11.29); Victims of Crimes Act 1994 (ACT) s 3 (“victim” (c)).
132. Acts Revision (Victims of Crime) Act 1994 (ACT) s 4 (“victim” (a)(ii)); Victims of Crimes Act 1994 (ACT) s 3 (“victim” (a)(ii)).
133. UN Declaration para 1; Sentencing (Victim Impact Statement) Act 1994 (Vic) s 4 (“victim”).
134. UN Declaration para 2; Acts Revision (Victims of Crime) Act 1994 (ACT) s 4 (“victim” (b)); Victims of Crimes Act 1994 (ACT) s 3 (“victim” (b)); Sentencing Act 1995 (WA) s 13(b); Victims of Offences Act 1987 (NZ) s 2. See also New South Wales, Charter of Victims’ Rights (“Who is a victim?”); Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 3 s 447C(2)A.
135. See 11.51.
136. Compare Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 3 proposed s 447C(2A).
137. See 11.51.
138. Crimes Act 1900 (ACT) s 429AB(2)(a); Criminal Law (Sentencing) Act 1988 (SA) s 7(2).
139. The judge can demand a VIS from the prosecution in New Zealand: see Victims of Offences Act 1987 (NZ) s 8(3) (inserted by s 2 of Victims of Offences Amendment Act 1994).
140. Crimes Act 1900 (ACT) s 429AB(1)(b); Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 3 s 447C(4A).
141. See para 11.21.
142. See Booth v Maryland (1987) 482 US 496 at 506 n 8 per Powell, Brennan, Marshall, Blackmun and Stevens JJ: “We are troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Of course, our system of justice does not tolerate such distinctions”.
143. See Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 3 s 447(1A).
144. See para 11.11.
145. See R v Nicholls (1991) A Crim R 455 at 458.
146. Tasmania, Department of Justice, Report of the Inter-Departmental Committee on Victims of Crime (Hobart, December 1989) at 33.
147. See New South Wales, Director of Public Prosecutions, Prosecution Policy (Sydney, December 1995) at 1 (“The Role of the Prosecutor”).
148. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 191.
149. See Sentencing Act 1995 (WA) s 25(3). Compare Sentencing Act 1991 (Vic) s 95E.
150. See Sentencing Act 1995 (WA) s 25(2). And consider D J Hall, “Victims’ Voices in Criminal Court: The Need for Restraint” (1991) 28 American Criminal Law Review 233.
151. We note that, in South Australia, VIS are seldom inflammatory, prejudicial or otherwise objectionable: see Erez, Roeger and Morgan at 40.
152. See Sentencing Act 1991 (Vic) s 95B(2).
153. See Crimes Act 1900 (ACT) s 429AB(3); Sentencing Act 1991 (Vic) s 95D(2).
154. Indeed, a “victim oriented” court probably assumes something other than the adversarial system: see N Christie, “Conflicts as Property” (1977) 17 British Journal of Criminology 1.
155. Consultation with representatives of Homicide Victims Support Group and Enough is Enough, Sydney, 13 November 1995.
156. Erez, Roeger and Morgan at 41, 70.
157. See Sentencing Act 1989 (NSW) s 13A(9)(b).
158. See para 1.10.
159. It follows that the Commission has reservations about Schedule 2 of the Sentencing Legislation (Amendment) Bill 1994 (NSW) which envisaged amendments to the Prisons Act 1952 (NSW) which would require the Serious Offenders Review Council to consider the public interest when advising the Commissioner of Corrective Services about the classification, placement and programs for serious offenders. SORC would have to take into account, amongst other matters, “the position of and consequences to the victim, including the victim’s family”. The Review Council would also be required to provide an opportunity for victims or their representatives to make written submissions and consider those before recommending any change to the security classification of the offender which would make the offender eligible for consideration for temporary leave from prison.
160. Sentencing Act 1989 s 17(1)(a). See paras 7.41-7.44.
161. Sentencing Act 1989 s 17(1).
162. See para 11.42.
163. See paras 7.59-7.61.
