2.1 This Chapter deals with two important aspects of the sentencing hearing. One is the use to be made of pre-sentence reports which, although currently subject to a review by the Probation and Parole Service,1 has been the subject of comment in some submissions. The other is the question of the admissibility of victim impact statements (“VIS”), a topic which has assumed importance in the context of modern debates about the role, if any, which should be played by victims in the sentencing process.
PRE-SENTENCE REPORTS
Recommendation 2
Legislation should provide that written pre-sentence reports ordered by the court, for which sentencing has been deferred, be made available to the prosecution and defence at least the day before the sentencing hearing.
Description
2.2 Pre-sentence reports, in either oral or written form, contain information prepared for a court about an offender’s social background and other relevant matters in order to assist the court in deciding on an appropriate sentence for that offender.
2.3 In New South Wales pre-sentence reports are provided, at the request of a court, by officers of the Probation and Parole Service under the Court Advice Program. Essentially, they fall into two categories:
- those prepared during a pre-sentence adjournment, which are written and provide considerable detail;
- those produced at court at short notice, which may be either verbal or in writing and concentrate on the availability of particular sentencing options and the offender’s suitability for them.
2.4 The use of pre-sentence reports has developed in New South Wales generally without legislative backing. However, there are specific instances where they are mandated by legislation. The assessment of offender suitability for periodic detention and community service orders involves the consideration of a report by a probation and parole officer and, if necessary, the hearing of evidence from an officer.2 The Home Detention Act 1996 (NSW) requires the investigation and preparation of a report concerning the suitability of an offender for home detention,3 and also sets an open-ended list of factors to be specifically addressed in the report.4
Availability of pre-sentence reports
2.5 A pre-sentence report is usually ordered by a court when an offender’s legal representative requests one. However, the need for one will depend on the circumstances of the case. In R v Majors5 the Court of Criminal Appeal held that it is for the sentencing court to determine whether it is appropriate to defer sentencing pending the production of a pre-sentence report. The Court doubted the helpfulness of pre-sentence reports in some instances, noting that much of the information contained in pre-sentence reports should have been compiled by the offender’s legal representative before the conclusion of the trial:
It is acknowledged that there are certain matters in respect of which probation officers may be of special assistance, for example, details of previous behaviour by the offender whilst on parole, but the principle remains that except in rare cases, those representing the offender should be in a position to adduce all relevant evidence in mitigation at the conclusion of the trial. Adjournment of the sentencing process to enable the preparation of a pre-sentence report should be confined to those cases where it is apparent to the judge that there is a clear and legitimate advantage to be obtained by this course.6
The Commission agrees with this position and accordingly does not seek to compel the production of pre-sentence reports in cases where they are not already mandated by legislation and the court does not consider that they are necessary in the circumstances of the case.
Legislative base
2.6 While it is possible that the provision of pre-sentence reports can continue without a legislative base, the Commission has come to the conclusion that they should be recognised in legislation so that aspects relating to lodgement can be regulated. The Probation and Parole Officers’ Association has proposed that pre-sentence reports be included in sentencing legislation to identify their purpose, namely to assist the court in determining the appropriate penalty, and to establish procedures for the lodging of reports and the lodging of notices of intention to dispute.7 In making this recommendation, the Commission has no intention to limit or constrain the flexibility that currently exists for the provision of pre-sentence reports.8 We intend that legislation should provide only for lodgement requirements.
Accessibility and resources
2.7 Two problems have been identified which arise from the fact that pre-sentence reports are not made available a reasonable time before the sentencing hearing. The first is that both prosecution and defence do not have adequate time to consider a report and to challenge statements therein by arranging for further evidence. To remedy this situation one submission proposed that all documents that are to be presented in the sentencing hearing must be exchanged no less than one week before that hearing.9 Another noted, in commenting on the proposal that victim impact statements be admitted only where they furnish the court with particulars that are not already before the court in evidence or in a pre-sentence report, that pre-sentence reports should be made available to the prosecution and victims two weeks before the sentence hearing and that victims should be given the opportunity to correct any material errors or omissions.10 A survey of judicial officers revealed that the vast majority support the availability of pre-sentence reports to both prosecution and defence at the registry at least two to three days before the sentencing hearing.11
2.8 The second problem arising partly from the late provision of pre-sentence reports is that Probation and Parole Service officers are made available to be cross-examined on the contents of their reports whether they are required or not. This availability is threatened by increasing demands placed upon probation and parole officers.12 The Probation and Parole Officers’ Association submitted that part of the value of pre-sentence reports is that their individual authors are available in court to be examined by prosecutors, offenders’ representatives and sentencers. This allows for the provision of fuller information where necessary and also allows the opportunity for the court to make an assessment of the adequacy of the report.13 The Department of Corrective Services, in its submission, warned that the Commission’s proposal that the court should provide reasons justifying any decision to impose a sentence of imprisonment of six months duration or less might lead to more frequent calls for pre-sentence reports, leading to even greater demands on the Probation and Parole Service. The increase in availability of periodic detention, community service orders and home detention would place further demands on the Probation and Parole Service. The Probation and Parole Officers’ Association noted that proposals to establish early lodgement of pre-sentence reports, so that the parties to a case could call for an officer’s attendance only if necessary, would alleviate some of the demands on officers.14
2.9 The position in other Australian jurisdictions varies. Some jurisdictions make provisions for the distribution of pre-sentence reports to the relevant parties, but do not state the time within which this is to be done, and also allow for the challenging of pre-sentence report by cross-examination of the author.15 In Victoria a pre-sentence report should be filed no later than the time directed by the court and is made available to the prosecutor, the offender’s legal representatives and, if so ordered, the offender.16 A notice of intention to dispute the whole or any part of a pre-sentence report may also be filed.17 Western Australia and the Northern Territory, which recognise pre-sentence reports generally in legislation, do not appear to make provision for their availability before the hearing or for their challenge.18 The Victorian legislation most closely approximates the scheme envisaged by the Probation and Parole Officers’ Association.
2.10 The problem of lack of adequate notice of the contents of a pre-sentence report can be overcome by expressly providing that pre-sentence reports be made available to the prosecution and defence at least the day before the sentencing hearing. The Commission, in recommending that pre-sentence reports be made available to both prosecution and defence alone, considers that this will be sufficient to allow proper scrutiny of their contents, especially given the confidential nature of much of the information which will be included. The requirement that pre-sentence reports be made available at least the day before the sentencing hearing should be sufficient to allow reasonable consideration to be given to their contents by both prosecution and defence. In addition the Commission, recognising the utility of having the author of a pre-sentence report available to give evidence, urges that sufficient resources be made available to ensure the efficient operation of the Probation and Parole Service.
Contents of pre-sentence reports
2.11 The Commission does not recommend that legislation seek to prescribe the contents of pre-sentence reports. This approach is supported by the Probation and Parole Officers’ Association.19 In Western Australia s 21 of the Sentencing Act 1995 (WA) leaves discretion in this regard to the courts:
(1) When ordering a pre-sentence report a court may give instructions as to the issues to be addressed by the report.
(2) In the absence of specific instructions from the court that ordered it, a pre-sentence report is to set out matters about the offender that are, by reason of this Act or sentencing practice, relevant to sentencing the offender ...
2.12 Notwithstanding the presence of specific factors to be taken into account in s 10(2) of the Home Detention Act 1996 (NSW), such as any criminal record, the likelihood that the offender will re-offend and any dependency on illegal drugs, and similar general provisions in the legislation of some other jurisdictions,20 the Commission considers that it should be left to the courts to determine what they require from individual pre-sentence reports in coming to their sentencing decision.
VICTIM IMPACT STATEMENTS
Admissibility of VIS
Recommendation 3
Except in death cases, VIS should be admissible at sentencing hearings, in the discretion of the court and at the victim’s option, as an indication of the seriousness of the offence. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) should be repealed.
Recommendation 4
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 has suffered personal harm as a direct result of the offence.
Recommendation 5
The definitions of “family victim”, “member of the immediate family” and “primary victim” in s 23A of the Criminal Procedure Act 1986 (NSW) should be repealed, together with s 23B(b) of the Criminal Procedure Act 1986 (NSW).
Generally
2.13 In the last quarter of a century, much attention has been paid to the question of the role which should be played by victims in the criminal justice system.21 The 1985 United Nations’ Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides that: “Victims should be treated with compassion and respect for their dignity”.22 A State does not live up to this standard if it fails to provide victims with assistance and access to support services, or to keep them informed of the progress of “their” case or of the movement of the offender through the courts and correctional system.23 That failure alienates victims from the criminal justice system.24 The Commission, therefore, strongly supports the Government’s commitment, manifest in the Victims Rights Act 1996 (NSW), to improve the treatment of victims by the enactment of a Charter of Victims Rights (which will govern the treatment of victims in the administration of the affairs of the State),25 and by the establishment of a Victims of Crime Bureau26 and a Victims Advisory Board.27 In the Commission’s view, these measures respond to the real needs of victims.
2.14 As far as sentencing is concerned, the Commission’s task is to determine whether victims should be given the opportunity to tender victim impact statements (“VIS”) at sentencing hearings. A VIS is, broadly, “a statement containing particulars of any personal harm suffered by a victim as a result of an offence”.28 The admissibility of such statements at common law is somewhat uncertain. In New South Wales, VIS have been admitted in some sexual assault cases where they have been thought to provide the court with information (which it did not otherwise have) of the psychological injury to the victim and hence of the seriousness of the offence.29 In practice, they have sometimes been found of little use in these cases since they have not adequately addressed the impact of the crime on the victim.30 VIS have generally been held inadmissible in homicide cases.31
2.15 In DP 33, while finding the literature on the admissibility of VIS inconclusive,32 the Commission was persuaded that VIS ought, in principle, to be admissible at sentencing hearings for the purpose of providing the sentencing court with an indication (which it may not otherwise have) of the seriousness of the offence.33 We agreed with the extra-curial comments of the Chief Justice of the Australian Capital Territory that:
The assumption may be too lightly made that the sentencing court will be in 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.34
2.16 The Commission continues to favour the general admissibility of VIS for the purpose of providing an indication of the seriousness of the offence in question. Our proposal to this effect in DP 33 was supported in nearly all of the submissions on VIS.35 It is also supported by legislation in several Australian jurisdictions which now provides for the general admissibility of VIS.36 It follows that the Commission supports Part 6A of the Criminal Procedure Act 1986 (NSW)37 to the extent to which it gives the Court a general power to receive VIS in appropriate cases, and subject to the qualifications below.
2.17 In DP 33 the Commission explained and qualified its general support for the admissibility of VIS in five ways:
- first, we proposed a particular definition of victim;
- secondly, we argued that VIS ought not to be admissible in homicide cases;38
- thirdly, we proposed that the admissibility of VIS should always be subject to the discretion of the court;
- fourthly, we argued that VIS should only be admissible at the option of the victim; and
- we proposed that VIS should only be admissible where they furnish the court with particulars that are not already before the court.
The definition of “victim”
2.18 “Victim” can be defined in a number of ways.39 Most expansively, it could refer to any person who suffers loss or harm (not necessarily of a tangible nature) as a result of the criminal offence in question. Such a wide definition of victim for the purposes of VIS would jeopardise the efficiency of the criminal justice system. In DP 33,40 the Commission considered that the appropriate definition of “victim” is that in the unproclaimed s 447C(6) of the Crimes Act 1900 (NSW) which defines “victim” as a person who has suffered injury (defined as bodily harm, including pregnancy, mental shock and nervous shock) 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. The definition received some support in submissions.41 Section 23A of the Criminal Procedure Act 1986 (NSW) substantially adopts the s 447C definition, but precisely defines “primary victim” as the person against whom the offence was committed or who witnessed the offence (where it was an act of actual or threatened violence) and who suffered “personal harm” (defined as actual physical bodily harm, mental illness or nervous shock) as a direct result of the offence.42 We are of the view that the qualification “direct” is a reasonable one. It also accords with the approach to the definition of “victim of crime” in s 5 of the Victims Rights Act 1996 (NSW) for the purposes of that Act. Accordingly we recommend that this be the definition of “victim” in s 23A of the Criminal Procedure Act 1986 (NSW).
2.19 Submissions which expressly or impliedly argued for a wider definition of “victim” did so in order to enable family and friends of deceased persons (“secondary victims”) to tender VIS in death cases.43 The Victims Rights Bill 1996 as presented by the Government permitted only primary victims to tender VIS. The Bill was, however, amended in the Legislative Council to create a category of “family victim”. Such a person is a member of the immediate family of a primary victim who has died as a direct result of the offence.44 The Government accepted this amendment and Part 6A of the Criminal Procedure Act 1986 (NSW) now contains this additional class of victim. For the reasons that we outline below, we consider that this amendment is fundamentally wrong and should be repealed. Before turning to this issue, we note that there was no opposition to our proposal that provision should exist for VIS to be made on behalf of victims who are under some incapacity.45
Death cases
2.20 The Commission’s proposal that VIS should be inadmissible in death cases was supported in a substantial majority of submissions,46 but expressly opposed in others.47 The Victims Advisory Council is strongly opposed to the proposal.48
2.21 The reason behind our proposal is simple. In death cases, the consequence of the offence to the victim (ie death) is already known.49 A victim impact statement cannot, therefore, supply any information relevant to the effect of the crime on the victim of which the court may be unaware.50
2.22 In death cases, victim impact statements could only amount to:
- an attempt to persuade the court to impose a harsher sentence on the accused on the basis that, in some way, the death of person who was, say, young and surrounded by a loving family and friends is more serious than, say, the death of a person who was alone, unhappy or elderly;51 or
- the provision of a forum for the victim’s family and friends to assist in their healing processes.52
2.23 The Commission is of the view that VIS should not be admissible for either of these purposes for the following reasons:
- First, it is unacceptable for the law to express, and the courts to engage in, pure retribution. As Justices Burchett, Miles and O’Loughlin of the Federal Court have recently reminded us: “Vengeance is not to be equated with justice”.53
- Secondly, it is offensive to fundamental conceptions of equality and justice to value one life over another. This is to derogate from the worth of every life. The point is implicit in what Justices Powell, Brennan, Marshall, Blackmun and Stevens of the United States Supreme Court wrote in Booth v Maryland:
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.54
If it did, the conclusion would follow, by precisely the same reasoning, that the prisoner ought to be able to raise, in mitigation of sentence, the argument that the deceased was a worthless member of society.55
- Thirdly, a court applying dispassionate justice is simply an inappropriate forum for addressing the need of victims to express their grief or anger. The Commission is acutely aware of the necessity for the provision (by the State and others) of mechanisms for assisting victims and their families.56 But the way to do so is not to give victims procedural rights at sentencing hearings. Conferencing schemes hold far greater promise for victims in this respect.57
2.24 The Commission is disappointed that submissions from those favouring VIS in death cases failed to answer, or even to address, any of these arguments.58 And the Commission’s further attempts to find reasoned responses to our arguments in consultations were just as unsuccessful. This has reinforced our conclusion that our proposals are right in principle.
2.25 Our proposal was supported by the Victims Rights Bill 1996, as originally introduced into Parliament, which adopted, in Schedule 2, a definition of “victim” which did not extend to “secondary victims” in homicide cases.59 The Bill did not, therefore, authorise secondary victims to make VIS in respect of the harm suffered as a result of the death of the primary victim.60 As a result of amendments to the Bill proposed in the Legislative Council and accepted by the Government, s 23A of the Criminal Procedure Act 1986 (NSW) extends the definition to include “family victim”, which is the equivalent of “secondary victim”. In addition, s 23E(2) of the Criminal Procedure Act 1986 (NSW) provides that, if a victim is incapable of providing information for or objecting to a VIS, a family member or other representative of the victim may act on behalf of the victim for that purpose.61 The primary object of this clause seems to be to authorise certain persons to make VIS on behalf of victims who are under some incapacity, or who, it would seem, have died since the offence was committed and are unable to exercise rights in relation to a VIS;62 it is difficult to see how the provision can have any sensible effect in relation to deceased victims.63
The court’s discretion
2.26 In DP 33 the Commission proposed that, because the contents of VIS may be exaggerated, irrelevant or simply prejudicial, the court should have the power in all cases to rule VIS inadmissible.64 This proposal was supported in submissions.65 Our recommendation accords with s 23C(1) and (2) of the Criminal Procedure Act 1986 (NSW) as inserted by the Victims Rights Act 1996 (NSW),66 and with the court’s general discretion to exclude evidence67 - especially evidence the probative value of which is outweighed, in criminal trials, by the danger of unfair prejudice.68 However s 23C(3) of the Criminal Procedure Act 1986 (NSW) now provides also that a VIS made by a family victim must be received by the court, in stark contrast to a VIS made by the primary victim which may be received only where the court considers it appropriate to do so. This distinction does not appear to have a rational basis. Furthermore, if the victim is alive, the VIS must be limited to the “personal harm” suffered by the victim as a “direct” result of the crime, a considerably more limited subject matter than “impact” on the family victim: nor can the VIS of the primary victim contain particulars of the impact of the crime on his or her family; nor, of course, can family members of such a victim submit VIS. We can see no rational justification for these discriminatory distinctions. It is evident that the terms and effect of the amendments were given inadequate consideration. A number of further points about the legislation may be made. The possibility that as many VIS as there are immediate family members might be produced for compulsory reception is clearly open. Section 23B enables one member of the immediate family to give particulars of the impact of the death on other members of the family who may not agree with that opinion. The court is obliged to receive statements even if there are substantial doubts about their veracity or relevance. The court is directed not to consider that statement in connection with the determination of punishment “unless the court considers that it is appropriate to do so”. Since it is clear that the court would not so consider that statement in all events unless it thought it was appropriate, this prohibition adds nothing. The purpose of receiving a VIS is not stated. It is difficult to think of a case where material about the impact of the death upon a family member could be taken into account on sentence without violating the fundamental principles of equal justice to which we have earlier adverted. The implication in s 23C(3) that it might be appropriate to do so is, therefore, an indication that the Parliament does not accept the principle that all lives are of equal value. We cannot think that this was the intention of the amendment but it is difficult to draw any other inference. We are of the firm opinion that the provisions relating to death cases should be repealed.
The victim’s option
2.27 Our proposal that it is for the victim to choose whether or not he or she will make a VIS to the sentencing court69 was supported unanimously in submissions,70 as was our proposal that no inference (for example, that the offence had little or no impact on the victim) should be drawn from the victim’s failure to provide a VIS.71 Both of these proposals find support in s 23D of the Criminal Procedure Act 1986 (NSW).72
Matters otherwise before the court
2.28 The Discussion Paper, building on legislation in South Australia,73 proposed that VIS should only be admissible where they furnish the court with particulars that are not already before the court in evidence or in a pre-sentence report.74 Although this proposal was supported in some submissions,75 the Commission has decided, on reflection, not to press it. If implemented, it would, potentially, give rise to a great deal of unnecessary argument as to whether VIS (or parts of them) are admissible.76 In addition, the spirit of Part 6A of the Criminal Procedure Act 1986 (NSW) would seem to be to permit victims to make VIS irrespective of the material already before the court.77
Procedural considerations
2.29 Some legal systems accord victims procedural rights in the criminal justice system. These may include 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 the sentencing court or parole authorities; and the right to restitution from the offender.78 In our legal system, victims are not in any sense parties to the criminal proceedings.79 Nor ought they to be.80 It is the function of the State to prosecute those accused of crimes. And the State must have control over criminal proceedings.
2.30 The very nature of our legal system means that certain procedural consequences follow. First, it must be the prosecution that tenders VIS at sentencing hearings. The Commission made an express proposal to this effect in DP 33.81 That proposal was strongly supported in submissions.82 We do not, however, now make a formal recommendation to this effect since it is implicit in the very nature of our criminal justice system. Secondly, VIS must, in principle, be subject to cross-examination. We make a formal recommendation to this effect simply because the right of cross-examination is a very controversial issue in the case of VIS.83
2.31 Consideration of the nature of our system has led us to reconsider the proposal which we made in DP 33 that the victim should have the right to request the prosecutor to refrain from presenting the court with details of the injury.84 We do not persist with this proposal as we agree with the Director of Public Prosecutions85 and the Victims Advisory Council86 that the decision as to the material to be presented in relation to the injury (excluding the VIS) should be that of the prosecutor not the victim.
Form of VIS
2.32 The Commission reaffirms this proposal which was made in DP 3387 and which was strongly supported in submissions.88
Authentication of VIS
2.33 With the exception that one submission favoured giving victims the option of making oral VIS,89 this proposal in DP 3390 was, again, strongly supported in submissions.91 The Commission affirms it.
Contents of VIS
2.34 This proposal was made in DP 3392 and the Commission maintains it. It was strongly supported in submissions.93 With one exception,94 it was expressly accepted that it is not appropriate for the victim to address the sentence which ought to be imposed.95
Cross-examination
2.35 There was very strong support in submissions for the proposal in DP 3396 that VIS must be subject to cross-examination,97 the only suggested qualification being that the leave of the court should be required in order to minimise the risk of re-victimisation.98 In the Commission’s view, that risk is avoided by the court’s normal discretion to disallow questions in cross-examination which are improper.99
Confidentiality
2.36 The Director of Public Prosecutions has drawn the Commission’s attention to the fact that, on some occasions, copies of VIS have been misused.100 Clearly, the sensitive nature of material which may be included in VIS requires some provision to be made for the protection of the privacy of their authors and others. It is, therefore, important that, in appropriate cases, the court should either treat VIS as confidential exhibits or order their non-publication. To avoid any doubts, legislation should spell out the power of the courts to do this.
FOOTNOTES
1. A component of this review has been J Hickey and C Spangaro, Judicial Views About Pre-Sentence Reports (Judicial Commission of New South Wales, Sydney, 1995).
2. Periodic Detention of Prisoners Act 1981 (NSW) s 5(1)(c); Community Service Orders Act 1979 (NSW) s 6(3)(b).
3. Section 10(1).
4. Section 10(2) and (4).
5. (1991) 27 NSWLR 624.
6. Majors at 627 per Carruthers J.
7. Probation and Parole Officers’ Association of NSW, Submission (31 July 1996) at 8.
8. Concerns that flexibility might be lost are outlined in Hickey and Spangaro at 39.
9. Confidential, Submission (22 May 1996) at 2.
10. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 31.
11. Hickey and Spangaro at 37.
12. In recent years there has been a steady increase in the number of reports prepared. In the 1990/1991 financial year the Service prepared 12,700 full and short reports, and in 1994 a total of 16,400. Between 1993 and 1994 the number of reports increased by 1.7% despite a decrease, in the order of 6.4%, in the number of offenders sentenced: Hickey and Spangaro at 4.
13. Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 7.
14. Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 7.
15. Crimes Act 1900 (ACT) s 456 and 457; Criminal Law (Sentencing) Act 1988 (SA) s 8(4), (5) and (6).
16. Sentencing Act 1991 (Vic) s 98.
17. Sentencing Act 1991 (Vic) s 99.
18. Sentencing Act 1995 (NT) Part 6 Div 2; Sentencing Act 1995 (WA) s 20-22.
19. Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 8.
20. Sentencing Act 1995 (NT) s 106; Sentencing Act 1991 (Vic) s 97; Crimes Act 1900 (ACT) s 455.
21. See DP 33 at paras 11.4-11.13.
22. Art 4, adopted by General Assembly resolution 40/34, 29 November 1985, text in Centre for Human Rights Geneva, Human Rights: A Compilation of International Instruments (United Nations, New York, 1988) at 262; New South Wales, Office of the Director of Public Prosecutions, Prosecution Guidelines (Sydney, December 1995) Appendix H.
23. See eg Women for Social Justice, Submission (29 July 1996) at 4. Consider also C Sumner, M Israel, M O’Connell and R Sarre (eds), International Victimology: Selected Papers from the 8th International Symposium, Proceedings of a Symposium held in Adelaide from 21-26 August 1994 (Australian Institute of Criminology No 27, 1996) Section 4; F J Weed, Certainty of Justice: Reform in the Crime Victim Movement (Adeline de Gruyter, New York, 1995) Chapter 5.
24. D Blakemore, Submission (26 June 1996); Manning District Emergency Accommodation Inc, Submission (22 July 1996); R Cotterell-Jones, Submission (30 July 1996).
25. Victims Rights Act 1996 (NSW) Part 2. But note that nothing in Part 2 itself creates legal rights: s 8.
26. Victims Rights Act 1996 (NSW) Part 3.
27. Victims Rights Act 1996 (NSW) Part 4.
28. Victims Rights Bill 1996 Sch 2 [1], proposed s 23B Criminal Procedure Act 1986 (NSW) as originally introduced into Parliament on 15 May 1996 before being amended by the Legislative Council to add that it must be as a “direct” result. See now s 23B Criminal Procedure Act 1986 (NSW) as inserted by the Victims Rights Act 1996 (NSW) Sch 2 [1].
29. 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 60363/88, 15 February 1990, unreported); R v Nichols (1991) 57 A Crim R 391 (NSW CCA); R v PJP (NSW CCA, No 60025/92, 9 July 1992, unreported); R v Jones (1993) 70 A Crim R 449.
30. See R v Muldoon (NSW CCA, No 60513/90, 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: Preliminary Submission (7 August 1995).
31. R v De Souza (NSW SC, No 70105/94, 10 November 1995, Dunford J, unreported); R v Penn (1994) 19 MVR 367 at 370 (Vic CCA). Compare two earlier unreported NSW cases which Dunford J distinguishes in De Souza at 3 and the approach in a recent Queensland case 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.
32. DP 33 at paras 11.32-11.37.
33. DP 33 at paras 11.38-11.43. Some submissions also suggest that sentencing courts can be unaware of the impact of the crime on the victim: see D Blakemore, Submission (26 June 1996) at 23-25.
34. 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.
35. Confidential, Submission (22 May 1996) at 40; N R Cowdery, Submission (17 June 1996) at 6 (Summary), 16-17 (Response); M Dodson, Submission (26 June 1996) at 4 (but with reservations about the value of VIS); NSW Council for Civil Liberties, Submission (28 June 1996) at 6; Justice Action, Submission (2 July 1996) at 2; J L Swanson, Submission (1 July 1996) at 2; Victims Advisory Council, Submission (10 July 1996) at 1; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 11; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 31 (“planned introduction”); W D T Ward, Submission (25 July 1996) at 20; K Marslew, Consultation (12 September 1996) (VIS make judges “feel the pain” of victims before sentencing). But see M L Sides and Bar Association, Submission (24 June 1996) at 75-76; D Blakemore, Submission (26 June 1996) at 20-21.
36. Crimes Act 1900 (ACT) Part 12 Div 1 (inserted by Acts Revision (Victims of Crime) Act 1994 (ACT)); Criminal Law (Sentencing) Act 1988 (SA) s 7; Sentencing Act 1991 (Vic) Part 6 Div 1A (inserted by Sentencing (Victim Impact Statement) Act 1994 (Vic)); Sentencing Act 1995 (WA) s 13 and 24-26. Consider also Sentencing Act 1995 (NT) s 104(1). The legislation is reviewed in DP 33 at paras 11.22-11.30.
37. Inserted by the Victims Rights Act 1996 (NSW) Sch 2 [1]. The Commission does not support s 23C(3).
38. See DP 33 at paras 11.51-11.52. The use of “homicide” in DP 33 was not intended in any technical or limiting sense. To avoid any confusion, we refer in this Report simply to “death cases”.
39. See DP 33 at para 11.48.
40. DP 33 at para 11.49.
41. Confidential, Submission (22 May 1996) at 41; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 11; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 31-32; W D T Ward, Submission (25 July 1996) at 21.
42. Criminal Procedure Act 1986 (NSW) s 23A (“primary victim”) inserted by the Victims Rights Act 1996 (NSW) Sch 2 [1].
43. N R Cowdery, Submission (17 June 1996) at 6, 7 (Summary), 17-18 (Response); D Blakemore, Submission (26 June 1996) at 21-22.
44. Criminal Procedure Act 1986 (NSW) s 23A (“family victim”) and s 23C(3) inserted by the Victims Rights Act 1996 (NSW) Sch 2 [1].
45. Criminal Procedure Act 1986 (NSW) s 23E(2) inserted by Victims Rights Act 1996 (NSW) Sch 2 [1]) is partly directed to this situation. Compare para 2.25. See also Confidential, Submission (22 May 1996) at 41.
46. Confidential, Submission (22 May 1996) at 42; NSW Council for Civil Liberties, Submission (28 June 1996) at 6; Justice Action, Submission (2 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 11; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32-33; District Court, Criminal Law Committee, Submission (6 August 1996) at 1.
47. N R Cowdery, Submission (17 June 1996) at 7 (Summary), 18 (Response); D Blakemore, Submission (26 June 1996) at 21-28.
48. Victims Advisory Council, Submission (10 July 1996) at 3; Victims Advisory Council, Consultation 1 (8 May 1996); Victims Advisory Council, Consultation 2 (31 July 1996).
49. DP 33 at paras 11.51-11.52.
50. Compare DP 33 at para 11.38.
51. The argument put by the Homicide Victims’ Support Group, Submission (14 June 1996) at 1, that there is, in this context, a difference between measuring the value of a person’s life and the impact of the crime. (“Don’t measure the value - measure the impact”) is specious.
52. Argued as one of the purposes of VIS in such cases in Victims Advisory Council, Consultation 1 (8 May 1996).
53. R v P (1992) 39 FCR 276 at 281 (FC).
54. (1987) 482 US 496 at 506 n 8 (holding that admissibility of a VIS at sentencing in a capital murder case violated the constitutional principle prohibiting cruel and unusual punishments). The Supreme Court reaffirmed Booth v Maryland in South Carolina v Gathers (1989) 490 US 805, before overruling it in Payne v Tennessee (1991) 501 US 808. For a criticism of the approach in Payne, see R Coyne, “Inflicting Payne on Oklahoma: The Use of Victim Impact Evidence During the Sentencing Phase of Capital Cases” (1992) 45 Oklahoma Law Review 589. For a defence, see B Douglass, “Oklahoma’s Victim Impact Legislation: A New Voice for Victims and Their Families: A Response to Professor Coyne” (1993) 46 Oklahoma Law Review 283.
55. Consider Payne v Tennessee (1991) 501 US 808 at 859 per Stevens J dissenting (the victim’s character, whether good or bad, cannot constitute either an aggravating or mitigating circumstance because the victim is not on trial).
56. See para 2.13. Some submissions are eloquent testimony of this need: see especially D Blakemore, Submission (26 June 1996).
57. See also M L Sides, Submission (24 June 1996) at 75. On conferencing, see Chapter 12.
58. See eg Victims Advisory Council, Submission (10 July 1996) at 3 and K Marslew, Submission (31 July 1996) at 1, both of which simply assert that the Commission’s proposal to exclude VIS in death cases would put NSW out of step with changes occurring elsewhere. The Commission has, of course, carefully considered developments elsewhere: see DP 33 at paras 11.4-11.30.
59. Inserted by Victims Rights Bill 1996 Sch 2 [1].
60. See also N R Cowdery, Submission (17 June 1996) at 16 (Response).
61. Inserted by Victims Rights Act 1996 (NSW) Sch 2 [1].
62. See para 2.19.
63. Note also the potential for conflict between family members with opposing views: see Law Society of NSW, Submission (19 July 1996) at 46. See also New South Wales, Parliamentary Debates (Hansard) Legislative Council, 15 May 1996 at 972 and 980.
64. DP 33 at para 11.59.
65. Confidential, Submission (22 May 1996) at 42; N R Cowdery, Submission (17 June 1996) at 19 (Response); NSW Council for Civil Liberties, Submission (28 June 1996) at 6;. Justice Action, Submission (2 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32; W D T Ward, Submission (25 July 1996) at 20.
66. Sch 2 [1]. Section 23E(3) permits a court to receive and consider a VIS only if it complies with the requirements prescribed by or under Part 6 of the Criminal Procedure Act 1986 (NSW).
67. Evidence Act 1995 (Cth and NSW) s 135 (although, in view of s 4, this provision does not apply as a matter of course at a sentencing hearing).
68. Evidence Act 1995 (Cth and NSW) s 136 (although, in view of s 4, this provision does not apply as a matter of course at a sentencing hearing).
69. DP 33 at para 11.50. For some of the difficulties which arise where victim participation in the criminal justice system is mandatory, see C Hanna, “No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions” (1996) 109 Harvard Law Review 1850.
70. N R Cowdery, Submission (17 June 1996) at 7 (Summary), 18 (Response); NSW Council for Civil Liberties, Submission (28 June 1996) at 6; D Blakemore, Submission (26 June 1996) at 22; Justice Action, Submission (2 July 1996) at 2; Victims Advisory Council, Submission (10 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 11; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 31; W D T Ward, Submission (25 July 1996) at 20.
71. N R Cowdery, Submission (17 June 1996) at 7 (Summary), 18 (Response); NSW Council for Civil Liberties, Submission (28 June 1996) at 6; Justice Action, Submission (2 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 11. See also M L Sides, Submission (24 June 1996) at 75-76.
72. Inserted by Victims Rights Act 1996 (NSW) Sch 2 [1].
73. Criminal Law (Sentencing) Act 1988 (SA) s 7(1).
74. DP 33 at paras 11.45-11.47.
75. Confidential, Submission (22 May 1996) at 41; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 10; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 31.
76. See W D T Ward, Submission (25 July 1996) at 21.
77. N R Cowdery, Submission (17 June 1996) at 6 (Summary), 17 (Response). See also D Blakemore, Submission (26 June 1996) at 25.
78. See C J Sumner, “Victim Participation in the Criminal Justice System” (1987) 20 Australia and New Zealand Journal of Criminology 195.
79. DP 33 at paras 11.1-11.3.
80. See N R Cowdery, Submission (17 June 1996) at 19.
81. DP 33 at paras 11.55-11.56.
82. Confidential, Submission (22 May 1996) at 41; N R Cowdery, Submission (17 June 1996) at 7 (Summary), 18 (Response); Victims Advisory Council, Submission (10 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32; W D T Ward, Submission (25 July 1996) at 21.
83. See para 2.35.
84. DP 33 at para 11.50.
85. N R Cowdery, Submission (17 June 1996) at 18 (Response).
86. Victims Advisory Council, Submission (10 July 1996) at 2.
87. DP 33 at para 11.54.
88. N R Cowdery, Submission (17 June 1996) at 19 (Response) (with the qualification that VIS should always be signed); Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32; W D T Ward, Submission (25 July 1996) at 20; District Court, Criminal Law Committee, Submission (6 August 1996) at 1.
89. D Blakemore, Submission (26 June 1996) at 23. Victims Advisory Council, Submission (10 July 1996) at 2 left open the possibility that a victim should be able to read in court a written VIS.
90. DP 33 at paras 11.55-11.56.
91. Confidential, Submission (22 May 1996) at 41; N R Cowdery, Submission (17 June 1996) at 19 (Response); NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32; W D T Ward, Submission (25 July 1996) at 20; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12.
92. DP 33 at paras 11.57-11.58.
93. N R Cowdery, Submission (17 June 1996) at 19 (Response) (but with qualifications in homicide cases); Victims Advisory Council, Submission (10 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32; District Court, Criminal Law Committee, Submission (6 August 1996) at 1.
94. W D T Ward, Submission (25 July 1996) at 21.
95. D Blakemore, Submission (26 June 1996) at 25.
96. DP 33 at para 11.60.
97. Confidential, Submission (22 May 1996) at 42; N R Cowdery, Submission (17 June 1996) at 7 (Summary), 19 (Response); NSW Council for Civil Liberties, Submission (28 June 1996) at 6; D Blakemore, Submission (26 June 1996) at 26-27 (with some reservations); Justice Action, Submission (2 July 1996) at 2; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 32 (who would extend the right to cross-examine any experts whose opinion forms an annexure to the VIS); Law Society of NSW, Submission (19 July 1996) at 46; W D T Ward, Submission (25 July 1996) at 20.
98. J L Swanson, Submission (1 July 1996) at 2; Victims Advisory Council, Submission (10 July 1996) at 3.
99. See Evidence Act 1995 (Cth and NSW) s 41. See also s 42 (disallowance of leading questions).
100. N R Cowdery, Submission (17 June 1996) at 19.
