The Role of Victims of Crime in the Criminal Trial Process: Consultation Paper

9. The role of victims in sentencing

Introduction

9.1 Once an accused has been found guilty by jury verdict or has pleaded guilty, his or her matter must proceed to a sentencing hearing.^[1]

9.2 Of the 89 criminal matters finalised in the Supreme Court in 2013–14, 55 resolved as a guilty plea and 34 went to a jury verdict.^[2]

9.3 In the County Court, 1684 criminal matters resolved as a guilty plea, including 255 matters that were listed for trial but resolved before a jury was empanelled.^[3] Only 358 trials went to jury verdict.^[4]

9.4 As these statistics highlight, a significant proportion of matters resolve by way of a plea of guilty and proceed to a sentence hearing. This is true of most common law jurisdictions.

9.5 This chapter begins with an examination of sentencing hearings in Victoria, with a particular focus on victim impact statements. This is followed by consideration of different approaches in the victim impact statement schemes of other Australian jurisdictions, alternative processes and procedures in other countries, and the use of restorative justice processes. Finally, some key issues and reform proposals are discussed, and a number of questions are posed.

The current system in Victoria

9.6 Sentencing hearings in Victoria’s superior courts have the following general structure:

• Unless the judge orders otherwise, sentencing hearings are conducted in open court. The victim and any of their support people may be present, as may support people for the offender, members of the public and the media.

• If the offender is pleading guilty, the charge(s) are read out to the accused (seated at the back of the court, in the dock), who enters a plea of guilty to each charge and then becomes known as the ‘offender’ or ‘prisoner’. If the offender has been found guilty by a jury, this step does not occur.

• If the offender has any prior convictions, they are presented to the court.

• For cases that have resolved in a plea without a trial, the prosecutor reads out an opening, which contains the agreed facts upon which the plea of guilty is based. If the sentencing hearing follows a guilty verdict after a trial, there may be some discussion between the judge, the prosecutor and the offender’s lawyer about what facts the jury must have found in order to return the guilty verdict.

• The prosecutor informs the court of the maximum sentence for the offence(s), any relevant sentencing laws, and whether there are any related orders to be made, such as for restitution, compensation and forfeiture.

• If the victim has prepared a victim impact statement, it is presented to the court.

• The offender’s lawyer then makes submissions, and may call evidence about:

 the personal circumstances of the offender, including any psychiatric, psychological, medical or other issues

 the offender’s history and antecedents

 any factors that mitigate or explain the offending

 any personal, character, family and work referees willing to speak for the offender

 any matters that may go to the purposes of sentencing (set out below)

 the applicable law.

• The offender is not required to give evidence at the sentencing hearing, but may do so. If the offender does give evidence, the prosecutor has the right to cross-examine the offender, and any other witness called at the sentencing hearing.

• The judge may deliver his or her sentence and provide reasons immediately following the sentencing hearing, or may adjourn to consider. If further reports are required, or if the judge is contemplating imposing a sentence which includes a rehabilitative or community-based component, the sentencing hearing may be adjourned for such reports to be obtained.

9.7 The Sentencing Act 1991 (Vic) sets out the purposes of sentencing as punishment, deterrence, rehabilitation, denunciation and the protection of the community.^[5] Notably absent from the purposes of sentencing is the restoration of, and reparations to, the victim of the offending.^[6]

9.8 Although absent from the purposes of sentencing, victims are relevant to the sentencing process. Specifically, in imposing a sentence, a court must have regard to a range of factors including:

• the impact of the offending on any victim

• the personal circumstances of any victim

• any injury, loss or damage resulting directly from the offence.^[7]

9.9 A victim is defined in the Sentencing Act as:

a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.^[8]

9.10 The family and friends of a person who is the immediate victim of a crime (including a homicide victim) are also victims where they suffer injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the crime.

9.11 Witnesses to an offence may be victims if they have suffered injury, loss or damage as a direct result of the offence.^[9] Similarly, the local community may be a victim.^[10]

9.12 Any direct consequences of an offender’s criminal conduct can be held against him or her in sentencing, even if the offender could not reasonably have foreseen those consequences.^[11]

Victim impact statements

9.13 In Victoria, victims can participate in the sentencing hearing through the provision of a victim impact statement. Victim impact statements can be provided in relation to all offences.

9.14 A victim impact statement is a sworn statement to the court, made by statutory declaration, that outlines ‘the impact of the offence on the victim and … any injury, loss or damage suffered by the victim as a direct result of the offence’.^[12]

Form and presentation

9.15 Victims are able to include photographs, drawings, poems, or any other material that relates to injury, loss or damage in their victim impact statement.^[13] This includes a medical report and related documents.^[14]

9.16 At the sentencing hearing, the victim can choose how the victim impact statement is presented to the court. The victim may read it aloud, or may request that it be read by another person, or by the prosecutor. Photographs or drawings may be displayed during the sentencing hearing.^[15] Alternative arrangements may be made for the presentation of the victim impact statement, including the use of remote witness facilities and allowing a support person for the victim.^[16] If the victim wishes, they may also give sworn evidence at the sentencing hearing.^[17]

9.17 The content of victim impact statements can be tested. The prosecution or the offender can request the judge to order that the victim give evidence and be cross-examined about the content of their statement.^[18] This also applies to any person who made a victim impact statement on behalf of the victim, or any medical expert whose report is attached to the victim impact statement.^[19]

9.18 Victims can also call witnesses to provide evidence in support of information contained in a victim impact statement.^[20] These witnesses can be cross-examined by the prosecutor or the offender.

9.19 Victim impact statements and any attached documents must, within a reasonable time before the sentencing hearing, be filed with the court, and provided to the offender (and their lawyer) and the prosecution.^[21] In most cases, victim impact statements thus become part of the court’s public record.

9.20 In some circumstances, the details of a victim impact statement can be kept private. Specifically, if the publication of a victim impact statement will cause ‘undue distress or embarrassment’ to a child victim, or to a victim in proceedings involving a sexual offence or family violence, orders can be made to prohibit or restrict the publication of information contained in a victim impact statement.^[22] Applications may be made on the initiative of the judge, the prosecutor, the offender or ‘any other person considered by the court or tribunal to have a sufficient interest’ in the order being made.^[23]

9.21 The court may also, on its own initiative, close the court to the public for all or part of the proceedings, in order to avoid causing undue distress and embarrassment to a child victim or the victim of a sexual or family violence offence.^[24]

Admissibility, content and purposes

9.22 The court has the power to rule inadmissible any part of a victim impact statement, including part of a medical report.^[25] The court can also restrict the parts of the victim impact statement read aloud to those parts which are ‘appropriate and relevant to sentencing’.^[26]

9.23 Matters which are inadmissible include:

• information about the effects of the crime on people other than the person making the statement

• information about the offender or the circumstances of the offender

• opinions or arguments about what kind of sentence should be imposed or the length of any sentence.^[27]

9.24 The policy of the Director of Public Prosecutions (DPP) states that it is the responsibility of victims to prepare the victim impact statement and that prosecutors have no formal role in the process, except to provide information and referrals.^[28] Conversely, where a prosecutor identifies clearly inadmissible content, the DPP’s policy requires that the prosecutor ‘bring it to the attention of the court to prevent sentencing error’.^[29]

9.25 In determining what is admissible, Victorian courts have encouraged a flexible approach, balanced against the need to ensure fairness to the offender.^[30] Even taking a flexible approach, however, Victorian courts have emphasised that judges must ensure that only admissible parts of the victim impact statement are taken into account, in particular when they are read aloud.^[31] Information that is not directly relevant to the offence, even if useful for background and context, is not permitted.^[32]

9.26 The Victorian Court of Appeal has held that the purpose of victim impact statements is to ensure that the courts are aware of the impact of the crime on the victim and to ‘involve victims in the workings of the criminal justice system’.^[33]

9.27 While victim impact statements should not make representations about the sentence the offender should receive, the Victorian Court of Appeal has acknowledged that, just as information contained in a statement may ‘justify a more severe sentence’, expressions of forgiveness and support may have weight in moderating the sentence.^[34] Nonetheless, while the victim’s attitude towards the offender is relevant, it should not ‘govern’ the judge’s approach to sentencing.^[35]

9.28 The Victorian Court of Appeal recently ruled that while ‘the admissibility of victim impact statements should be approached with a degree of flexibility, nonetheless such statements must be relevant in the manner contemplated by s 8L(1) of the Act in order to be admissible’. ^[36] While the judge should ensure that only admissible portions of victim impact statements are read out in court, a failure of the offender’s lawyer to object to inadmissible or irrelevant material will have consequences if an appeal is subsequently pursued. On appeal the offender will need to show that ‘the judge in fact relied upon that inadmissible material’^[37] and in a manner that ‘wrongly infected the sentencing process’.^[38]

9.29 An evaluation of victim impact statement reforms, conducted by the Victorian Department of Justice in 2014, concluded that it remains a challenge to ensure that victim impact statements contain only admissible material.^[39]

Alternative processes and procedures

Australian jurisdictions

9.30 Generally speaking, the victim impact statement schemes of all other Australian jurisdictions contain similar elements and operate in similar ways.

9.31 The purpose of this section is to consider aspects of victim impact statement schemes in other Australian jurisdictions that are distinctly different to or more broad in application than the measures in place in Victoria.

Types of offence

9.32 Some jurisdictions limit the provision of victim impact statements to certain offences. In New South Wales, victim impact statements can only be provided for offences that have resulted in the death of a person or physical injury, or which involved actual or threatened violence or sexual violence.^[40] In Tasmania, victim impact statements are limited to victims of indictable offences.^[41]

Who can provide victim impact statements

9.33 There is some variation between jurisdictions with respect to who should be able to provide a victim impact statement.

9.34 In Tasmania, for cases involving a death, only the immediate family members of the deceased can provide a victim impact statement.^[42]

9.35 In New South Wales, until recently, the family of deceased victims were not permitted to make a victim impact statement.^[43] However, an amendment in 2014 to the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the judge to receive a victim impact statement from a family victim.^[44] On application from the prosecutor, the judge may take the family victim’s statement into account in determining punishment:

on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.^[45]

Provision of victim impact statement to parties

9.36 The 2014 Department of Justice review noted that victims have a range of privacy-related concerns about the content of their victim impact statements being disclosed to the offender or otherwise becoming part of the public record.^[46]

9.37 Victoria is the only jurisdiction that requires victim impact statements to be disclosed to the prosecution and defence within a ‘reasonable time’ before the sentencing hearing.^[47]

9.38 In New South Wales and Western Australia, the judge retains a discretion about whether to make a victim impact statement available to the prosecutor and the offender.^[48]

Cross-examination and sworn statements

9.39 Unlike in Victoria, victim impact statements in Queensland and New South Wales are not sworn statements,^[49] and there is no provision in the legislation in either state for victims to be examined or cross-examined about the content.

Contents of the victim impact statement

9.40 Like Victoria, most jurisdictions permit victim impact statements to address the physical, mental and financial harm caused to the victim as a result of the offence.

9.41 South Australia and the Northern Territory allow victims to make representations in their victim impact statement about the sentence that should be imposed on the offender.^[50]

9.42 This is in distinct contrast to other Australian jurisdictions, including Victoria, which specifically prohibit victims from including suggestions about the sentence that should be imposed on the offender.

9.43 Whether victims should be able to provide input into an offender’s sentence and how this input is taken into account by a sentencing court is particularly contentious. As outlined in Chapter 1, the Commission is not considering the quantum of sentencing in its review of the role of victims. However, the Commission acknowledges that the question of whether or not victims should be permitted to make representations about what sentence they believe the offender should receive is relevant to the consideration of the victim’s role in sentencing hearings.

9.44 In Queensland, the prosecutor is to decide ‘what (if any) details are appropriate to be given to the sentencing court’.^[51] In deciding what details are not appropriate, the prosecutor may have regard to the victim’s wishes.^[52] This is not the responsibility of the Victorian prosecutor.

Community impact statements

9.45 In South Australia, community impact statements may be provided. A prosecutor or the Commissioner for Victims’ Rights may submit a community impact statement to the court.^[53] Any person may make a submission to the Commissioner for Victims’ Rights if they wish to provide information to the Commissioner from which a community impact statement may be compiled.^[54] A community impact statement may be:

• a neighbourhood impact statement, which details the ‘effect of the offence, or of offences of the same kind, on people living or working in the location in which the offence was committed’^[55]

• a social impact statement, which details the ‘effect of the offence, or of offences of the same kind, on the community generally or on any particular sections of the community’.^[56]

9.46 South Australia is the only jurisdiction in Australia in which a community impact statement may be heard in a sentencing hearing. It appears that a community impact statement has only been made once, as a social impact statement in the context of a family violence-related homicide. The intention of the social impact statement was said to be to highlight the complexity of the issue and the serious consequences for society, and not to affect the ultimate sentence.^[57]

Other common law jurisdictions

New Zealand

9.47 New Zealand’s scheme for victim impact statements differs from the Victorian scheme in two key respects: the distribution and publication of victim impact statements; and the role of the prosecutor.

9.48 In New Zealand, offenders are explicitly prohibited from keeping a copy of the victim impact statement.^[58] While offenders are generally entitled to view the statement, an order can be made by the sentencing judge (on his or her own initiative, or the prosecutor’s application) to prohibit the offender or his or her lawyer from seeing part of it.^[59] Any part of the victim impact statement the offender is prohibited from seeing cannot be taken into account in sentencing.^[60]

9.49 A sentencing judge may also, on his or her own initiative or following an application from the prosecutor, impose conditions on the disclosure or distribution of a victim impact statement, including that its contents not be published.^[61]

9.50 The role of the prosecutor in preparing victim impact statements is recognised explicitly in New Zealand’s legislative scheme. The prosecutor is obliged to:

• ‘make all reasonable efforts’ to ascertain from the victim the information necessary to prepare a victim impact statement,^[62] and ensure that the victim is first informed that the information is being gathered for the victim impact statement and that any information given must be true;^[63] and

• advise the victim about the disclosure and distribution of the victim impact statement and find out the victim’s views in relation to any orders to prohibit publication generally or disclosure to the offender.^[64]

Canada

9.51 The Canadian Criminal Code mandates sentencing judges to take into account the contents of any victim impact statement when determining a sentence.^[65] Recent amendments to the Canadian Criminal Code allow for the provision of community impact statements.^[66]

9.52 Under these amendments, the judge:

shall consider any statement made by an individual on a community’s behalf … describing the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.^[67]

9.53 While the details of the processes for providing a community impact statement are left to Canada’s provinces, the amendments include a statutory pro forma which asks for information about the emotional, economic and physical impact of an offence on the community, as well as any resulting safety or security fears arising from the offence.^[68] This form also prohibits the following information from being included:

• statements that are not related to the harm suffered by the community

• unproven allegations

• comments about offences that the offender has not been convicted of

• complaints about individuals involved in the investigation or prosecution

• an opinion or recommendation about the sentence ‘except with the court’s approval’.^[69]

9.54 Community impact statements may be submitted in writing, read out, including with a support person or behind a screen, or ‘presented in any other manner that the court considers appropriate’.^[70]

United States

9.55 Under the federal Crime Victims’ Rights Act (CVRA) victims have a right to ‘be reasonably heard’ at a public proceeding relating to sentencing.^[71] This system mirrors the system in Victoria in that victims can make a statement at the sentencing hearing and may choose to do so orally.

9.56 The distinguishing feature of the CVRA is that it provides victims with access to relief if they believe their right to be heard has been violated. Specifically, if during a sentencing hearing a victim is denied the right to be heard, the victim can apply to the Court of Appeals for a review and seek to have a sentence re-opened.^[72]

9.57 In Kenna v United States District Court^[73], the Ninth Circuit of the Court of Appeals found that a victim had not been reasonably heard at the sentencing hearing for one of two co-offenders. The Court of Appeals considered that the only way to give effect to the victim’s right to be heard would be to vacate the sentence already handed down and conduct a new sentencing hearing.^[74]

9.58 In contrast, in Victoria, if a court refuses to admit some or all of a victim impact statement, or to permit a victim to deliver their victim impact statement orally in court, the victim is not able to seek a review of the court’s decision on this point. The Director of Public Prosecutions may appeal the sentence handed down if it is considered that the failure to take into account the contents of the victim impact statement resulted in an error of law such that the sentence imposed was manifestly inadequate. However, the victim has no role in the prosecutor’s decision to seek an appeal in these circumstances.

Jurisdictions with inquisitorial criminal trial processes

9.59 There are some fundamental differences between civil and common law systems that make direct comparison of the role of victims in sentencing difficult.

9.60 First, in inquisitorial trial processes, the trial and the sentencing proceedings run concurrently. Information is placed before the court during the trial that is relevant to sentencing.^[75]

9.61 This has implications for the role that victims play in sentencing. As outlined in Chapters 3, 8 and 10, victims can introduce information and make submissions during the inquisitorial trial in their capacities as either civil parties, auxiliary prosecutors or as legally represented victim-witnesses. Sometimes, this information will have a bearing on the sentence. In particular, victims appearing as civil parties can introduce evidence pertaining to the financial impact of the crime.^[76]

9.62 Beyond their roles as civil parties, auxiliary prosecutors or legally represented victim-witnesses, victims rarely have a role in the sentencing aspect of the proceedings. No civil law jurisdiction permits victims to make recommendations about the type or level of sentencing.^[77]

9.63 In addition, only a small number of civil law jurisdictions permit victims to make a victim impact statement. In her academic work, Kerstin Braun suggests that the general absence of victim impact statements is due to the belief that, as the roles of civil party or auxiliary prosecutor afford victims relatively robust mechanisms for participation in the criminal process, victims have no need to subsequently make victim impact statements.^[78]

9.64 The Netherlands has allowed victims to make impact statements since 2004.^[79] As in Victoria, victims in the Netherlands can present their victim impact statements orally or in writing. Also similar to Victoria, victims may be questioned by the defence about the content of their victim impact statement, although this rarely occurs.^[80]

9.65 However, due to the nature of inquisitorial proceedings, the victim impact scheme differs from Victoria’s. Victim impact statements are placed on the case file before the trial.^[81] This means that, unlike in adversarial trials, the judge has access to the victim impact statement before a finding of guilt has been made. Oral victim impact statements are delivered before the prosecutor’s closing address.^[82] Finally, victims can only be questioned about the content of their victim impact statement with the permission of the judge.^[83] Judges will not permit questioning that risks re-traumatising the victim.^[84]

9.66 In 2014, there was debate in the Netherlands about extending victim impact statements to allow victims to express their opinion about the strength of the evidence and what the sentence should be.^[85] The proposal contemplated that a victim’s representations could influence the outcome of the trial and the sentence imposed on the accused.^[86] The Commission understands that those proposals have not been adopted.^[87]

Restorative justice

9.67 Restorative justice procedures see ‘all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’.^[88] In appropriate circumstances, restorative justice has the potential to address many of the justice needs of victims that are not catered for by traditional sentencing procedures. Restorative justice procedures are widely used across Australia for less serious crimes, as outlined below.

9.68 When part of the sentencing process, restorative justice usually takes one of two main forms. Sometimes a restorative justice process, such as a mediation or a conference, occurs separately to the formal sentencing hearing, and a report of its outcome is taken into account when determining a sentence. In other cases, the sentencing process itself incorporates restorative justice principles.

Restorative justice procedures for adult offenders in Australia

Victoria

9.69 The only restorative justice procedure for adult offenders in Victoria’s superior jurisdictions is the Koori Court Division of the County Court, which is designed specifically for sentencing Indigenous offenders.^[89]

9.70 The sentence is determined through a flexible, culturally sensitive ‘sentencing conversation’ between the offender, Koori Elders (one of whom is often known to the offender or his or her family), the judge and the County Court Koori Officer.^[90]

9.71 While victims can participate in the process,^[91] a 2011 evaluation noted that since the Koori Court was established in 2008, only one victim had participated in a sentencing procedure.^[92]

9.72 Restorative justice processes are also available as part of summary proceedings in the Neighbourhood Justice Division of the Magistrates’ Court. An explicit aim of the Neighbourhood Justice Court is to increase the participation of the community, including victims, in the administration of justice.^[93] The Neighbourhood Justice Court has less prescriptive and formal procedures, and the presiding magistrate is expected to have experience in, and use, restorative justice techniques.^[94]

Other Australian jurisdictions

9.73 Restorative justice procedures are generally available in the lower courts of other Australian jurisdictions.

9.74 New South Wales has a process known as ‘forum sentencing’, in which magistrates can refer eligible matters to a restorative justice conference before imposing sentence.^[95] More serious violent offences are excluded.

9.75 Forum sentencing has a victim focus. The purposes of forum sentencing include increasing the victim’s satisfaction with the justice process, and providing offenders, victims and other members of the community with an opportunity to participate in the criminal justice system.^[96] Forum sentencing is also guided by the principle that it ‘should enhance the rights and place of victims in the justice process and have due regard to their interests’.^[97]

9.76 During a forum the offender and victim meet face to face, in the presence of a facilitator, support persons and police officers. An intervention plan is prepared, which is then considered by the referring court for approval.^[98] The terms of the intervention plan either form part of the sentence, or the plan’s successful completion is taken into account at sentencing.^[99] If the offender fails to complete the intervention plan, he or she is ‘returned to court for the court to deal with the offender’.^[100]

9.77 Queensland’s restorative justice scheme, described as ‘justice mediation’, involves a mediator assisting the victim and the offender to reach a written agreement. Justice mediation is only available in the Magistrates’ Court and is typically used for less serious offences such as theft, minor assaults, minor property damage and unlawful use of a motor vehicle, although it may be available for more serious offences.^[101] The police, prosecution or a magistrate may refer a matter to justice mediation. The outcome of the mediation may be that the offender is diverted from the criminal justice system or, if the court makes the referral, the agreement may be placed before the court to be taken into account during sentencing. ^[102]

9.78 In Western Australia and Tasmania, victim–offender mediation may be ordered by the court as part of the sentencing process.^[103] In Western Australia, this process is available for a range of offences including robbery, assault, burglary, property damage and fraud, but not for murder, sexual offences or offences involving family violence.^[104] Mediation outcomes may include an apology, the return of goods, or compensation. The mediator’s report is taken into account by the court when determining the sentence.^[105]

New Zealand

9.79 Restorative justice plays a much greater role in New Zealand’s criminal justice system when compared to Australia. In New Zealand, restorative justice can be used for all offences that are heard in the District Court, which includes sexual offences and cases involving family violence.^[106]

9.80 The Sentencing Act 2002 (NZ) has recently been amended to stipulate that in all District Court cases where an offender pleads guilty, a restorative justice process has not taken place, and the judge is aware that an appropriate restorative justice process is available, the judge must adjourn the sentencing proceedings for an assessment of suitability for restorative justice, ‘taking into account the wishes of the victims’.^[107] Assessments are conducted by ‘specialist restorative justice teams’, which may include a facilitator, a ‘victim-survivor specialist’, an ‘offender specialist’ and a psychologist.^[108]

9.81 If a conference does occur prior to sentencing,^[109] a report of the outcomes is prepared by the facilitator, which the judge takes into account in sentencing. Such outcomes may include:

• whether there has been any offer by the offender to make amends

• any agreement reached about how the offender can make amends

• any efforts made to compensate the victim and to apologise

• any other remedial action.^[110]

9.82 The facilitator also keeps the victim informed of what sentence the offender received, and the offender’s progress with respect to any agreed outcomes.^[111]

Discussion and options for reform

9.83 Victim impact statements represent a participating-witness mechanism already in existence in Victoria for victims at the sentencing stage of the criminal trial process. This section therefore focuses on options for changing different aspects of the victim impact statement process. It then discusses alternative and complementary forums for victim participation after an offender has been found guilty.

Victim impact statements

9.84 Victim impact statements are often described as having the following advantages:

• They allow victims to be involved in the criminal justice process, which may lead to therapeutic, emotional or psychological benefits for victims and improve their satisfaction with the criminal justice system.

• They afford victims dignity and respect by providing a form of official acknowledgment and recognising them as having a legitimate interest in the criminal trial process.

• They ensure sentences take into account the effect of the crime on the victim, and reflect community expectations.

• They provide a mechanism to confront offenders with the consequences of their conduct, thereby promoting deterrence and rehabilitation.^[112]

9.85 Not all victims report therapeutic or positive experiences in relation to victim impact statements. Rather, some victims report feeling confused about the role the victim impact statement plays in sentencing and feel that their statement should have been given greater weight by the judge.^[113] The Commission notes that empirical evidence is not conclusive about whether providing a victim impact statement increases victims’ satisfaction or leads to therapeutic or psychological benefits for victims.^[114]

9.86 While there remain some objections to victim impact statements, the practice is now well entrenched in Victoria and across the common law world. ^[115]

Who can make a victim impact statement

9.87 Reforms could expand the availability of victim impact statements to a broader group of non-immediate victims, or introduce community impact statements. Such reforms raise questions about equality and proportionality in sentencing and the matters which are relevant to determining a sentence. Victims who have strong community ties may be more able to show that the crime caused harm to their community than a victim without close connections to their community. This may result in a more severe sentence for those who offend against ‘much-loved’ victims, which in turn risks undermining equality in sentencing.

The content of victim impact statements

9.88 A potential change to the current Victorian scheme is to grant victims greater influence on the sentencing outcome, by allowing them to make submissions about the type and duration of sentence which they believe should be imposed. This would represent a shift in the role of the victim, from providing information about the impact of the crime to having a say in the resolution of the case. This gives rise to some important considerations, including:

• whether a victim’s opinion about what punishment an offender should receive is relevant to the sentencing decision

• whether victims might be influenced by non-objective considerations when making submissions about sentencing, and therefore urge that a sentence be too harsh or too lenient

• whether this might mean recognising victims as parties to the sentencing proceedings, contrary to the two-party structure of Victoria’s adversarial system.

Privacy

9.89 Victims have raised concerns about the implications for their privacy when their victim impact statement forms part of the court’s public record, is read aloud in court or given to the offender. As noted above, some protections exist for child victims or victims of sexual offences. One option is to expand these existing protections to other victims.

9.90 Another option is to adopt broader provisions restricting the publication of victim impact statements as part of the court’s public record and/or disclosure to the offender, similar to New Zealand’s scheme. In line with principles of fairness and open justice, any reform proposal that restricts an offender’s access to a victim impact statement would need to consider the implications of the sentencing judge taking into account information that the offender has not seen.

Representation for victims during sentencing proceedings.

9.91 One proposal which may address some concerns raised by victims is to allow a victim to be represented by their own lawyer during the sentencing hearing. An evaluation of victim impact statement reforms in Victoria by the Department of Justice in 2014 noted that:

Considering some of the difficulties faced by prosecutors in advancing the interests of both the State and of the victim, and the associated tensions that have arisen with respect to [victim impact statements] and victims’ expectations that prosecutors would ‘advocate’ for their rights, it might be timely to explore the role of victim advocates or victim representatives at the sentencing phase of the criminal trial …^[116]

9.92 The victim’s lawyer could carry out a range of functions, including:

• assisting in the preparation of the victim impact statement to ensure its contents are admissible

• providing legal advice to victims to help them understand the role and use (and limits) of victim impact statements

• making submissions during the sentencing hearing to explain or supplement the material contained in the victim impact statement

• calling any witnesses the victim wishes to call and leading the victim through the evidence they may give

• cross-examining any witnesses called as part of the offender’s plea (potentially limited to the evidence of those witnesses that is relevant to the victim).

9.93 Giving victims a legal advocate during sentencing is arguably less contentious than legal representation during the pre-trial and trial phases of the criminal trial process because the guilt of the offender and the ‘victimhood’ of the victim has been proved.

9.94 Victim impact statements sometimes contain material that is not admissible in the sentencing hearing. Victims reported distress at having their statements edited by the prosecutor, the offender’s lawyer or the judge, sometimes in open court. The process of editing victim impact statements, whether before or during the sentencing hearing, also highlights a tension between the victim and the prosecutor. The DPP’s policy states that prosecutors have no formal role in preparing the victim impact statement and requires the prosecutor to bring any clearly inadmissible material to the judge’s attention.^[117] Prosecutors may find it difficult to balance the interests of the victim against the need to ensure only admissible material is taken into account at the sentencing hearing.^[118] If the victim has a separate lawyer, this tension may be resolved, while ensuring that a victim receives legal advice about admissibility.

9.95 Nevertheless, the introduction of victims’ representatives in the sentencing phase still encroaches on the two-party structure of the adversarial criminal trial process. The introduction of a third participant in this way may undermine the ‘equality of arms’ between the defence and the prosecution.

9.96 The Commission notes that any reform proposals to enhance victim participation should take into account the consequences of raising victims’ expectations about the therapeutic benefits or impact of participation and then not meeting those expectations, which may further traumatise or disillusion victims.^[119]

Restorative justice sentencing procedures

9.97 Restorative justice procedures, such as those already used in magistrates’ courts across Australia, present an alternative or complementary sentencing path to the traditional sentencing hearing. The adoption of restorative justice procedures in domestic and international jurisdictions^[120] reflects mounting evidence that restorative justice practices can be effective in meeting the needs and interests of victims.

9.98 In New Zealand, the use of restorative justice for offences involving sexual or family violence has been particularly contentious.^[121] Among other concerns, detractors highlight the risks that restorative justice can reinforce gendered power imbalances and that confronting an offender can leave vulnerable victims more traumatised. More general concerns relate to whether the processes and sentencing outcomes from restorative justice conferences understate the seriousness of offending, limit public scrutiny of the criminal justice system, or lead to inadequate punishment.^[122]

9.99 The 2014 report of the Centre for Innovative Justice (CIJ) recommended that restorative justice could be used at the sentencing phase in sexual offence matters.^[123] As part of its recommendation, the CIJ outlined a robust referral scheme (aimed at addressing the above-mentioned concerns), which includes two separate assessments to ensure that only appropriate cases reach a conference. It also recommended a requirement that all restorative justice conferences be facilitated by multidisciplinary teams of trained specialists.

9.100 Consideration could therefore be given to legislative reforms that integrate restorative justice into sentencing in Victoria. If such reforms were adopted, careful consideration should be given to the institutional structures, protocols and procedures necessary to protect and empower victims and preserve the integrity of the sentencing process. These include:

• whether there are offences or victims inherently unsuitable for restorative justice

• how to assess the circumstances of the offender and the offender’s suitability for restorative justice

• whether there should be limits on the content and types of agreements that victims and offenders could reach as part of the restorative justice process

• whether the sentencing hearing should incorporate restorative justice principles, or whether the restorative justice process should be separate to, although taken into account at, the formal sentencing hearing

• how the outcomes of any conference or mediation (including any agreement) might influence or be taken into account in sentencing

• what training of facilitators, accreditation, oversight and membership of professional bodies is necessary.

Questions

The victim’s role in sentencing and the purposes of sentencing

35 Should the victim have a greater role in sentencing? If so, what should that role be?

36 Should the purposes of sentencing explicitly include the needs and interests of victims?

Victim impact statements

37 Should further limits be placed on the publication and distribution of victim impact statements?

38 Should a broader group of victims be permitted to make victim impact statements?

39 Should community impact statements be introduced?

40 Should victims be permitted to make submissions in relation to sentencing?

41 What should be the role of the prosecutor in preparing victim impact statements?

Restorative justice sentencing procedures

42 Should restorative justice procedures be available as either an alternative or supplementary part of the sentencing process? If not, why not? If so, in what circumstances?

1. Sometimes also referred to as a plea hearing. For consistency, the phrase ‘sentencing hearing’ will be used throughout this chapter.

   ↑

2. Supreme Court of Victoria, Annual Report 2013–14 (2015) 45.

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3. County Court of Victoria, Annual Report 2013–2014 (2015) 4.

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4. Ibid 4, 10–11.

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5. Sentencing Act 1991 (Vic) s 5.

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6. The purposes of the Sentencing Act 1991(Vic) include ‘to ensure that victims of crime receive adequate restitution and compensation’: s (1)(i). Restitution and compensation are considered in Chapter 10.

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7. Sentencing Act 1991 (Vic) s 5(2)(daa)–(db).

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8. Ibid s 3.

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9. Berichon v The Queen; Houssein v The Queen [2013] VSCA 319 [19] (Redlich JA and Robson AJA); R v Silver [2006] VSC 154.

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10. R v Miller [1995] 2 VR 348 (Southwell, Ormiston and MacDonald JJ) (effect on regional community of notorious murder).

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11. SD v The Queen [2013] VSCA 133 [17]; Eade v R [2012] VSCA 142 [31].

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12. Sentencing Act 1991 (Vic) s 8L(1).

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13. Ibid s 8L(2).

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14. Ibid s 8M.

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15. Ibid s 8Q.

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16. Ibid s 8R.

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17. Ibid s 8K(2)(b).

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18. Ibid s 8O.

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19. Ibid. Alternative arrangements may be used for this evidence, including remote witness facilities: s 8S.

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20. Ibid s 8P.

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21. Ibid s 8N.

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22. Open Courts Act 2013 (Vic) s 18(1)(d)–(e).

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23. Ibid s 19(1).

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24. Ibid s 30(2)(d)–(e) (closed court orders). See also Judicial Proceedings Report Act 1958 (Vic) s 4(1A); Children, Youth and Families Act 2005 (Vic) s 534(2).

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25. Sentencing Act 1991 (Vic) s 8L(3).

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26. Ibid s 8Q(2)–(3).

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27. DPP v QPX [2014] VSC 133.

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28. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [47].

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29. Ibid [48].

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30. R v Dowlan [1998] 1 VR 123. See also York (a Pseudonym) v The Queen [2014] VSCA 224 (recognising the need for flexibility).

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31. York (a Pseudonym) v The Queen [2014] VSCA 224 [25].

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32. Ibid [26].

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33. R v Dowlan [1998] 1 VR 123 [140].

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34. R v Skura [2004] VSCA 53 [13]. The moderating effect arises from the link between victim support and forgiveness and the remorse and rehabilitation of the offender.

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35. Ibid.

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36. York (a Pseudonym) v The Queen [2014] VSCA 224 [25], where the sentencing judge took a victim impact statement which referred to matters not related to the offence for which the judge was passing sentence, into account as providing ‘background and setting a context’ when imposing sentence. The Court of Appeal found this to be an error of law and set aside the sentence that had been imposed. See also Mok v R [2011] VSCA 38 [12].

    ↑

37. Luciano v The Queen [2015] VSCA 173 [14].

    ↑

38. Ibid [13]. The Court of Appeal stated ‘[e]ven if the judge did take into account inadmissible material, which we doubt, there was ample admissible evidence and material introduced on the plea … that led inexorably to the conclusion.’

    ↑

39. Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 5–6, 20, 44, 62–4.

    ↑

40. Crimes (Sentencing Procedure) Act 1999 (NSW) s 27. South Australia also limits the offences for which a victim impact statement may be submitted by a victim to indictable offences and summary offences in which the victim died, suffered total incapacity or serious harm. See Criminal Law (Sentencing) Act 1988 (SA) s 7A.

    ↑

41. Sentencing Act 1997 (Tas) s 81A(2)

    ↑

42. Defined to mean spouse, partner, parent, guardian, step-parent, child, step-child, brother, step-brother, sister or step-sister: Sentencing Act 1997 (Tas) s 81A(1).

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43. R v Previtera (1997) 94 A Crim R 76 (Hunt CJ).

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44. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(3). A family victim is defined as including spouse, partner, fiancé(e), parent, grandparent, child and siblings: s 26.

    ↑

45. Ibid s 28(4).

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46. Victorian Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 75.

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47. Sentencing Act 1991 (Vic) s 8N. See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, 2006) [14.30].

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48. Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(5); Sentencing Act 1995 (WA) s 26(1).

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49. Victims of Crime Assistance Act 2009 (Qld) s 15A(9); Crimes (Sentencing Procedure) Act 1999 (NSW) s 30 and Crimes (Sentencing Procedure) Regulation 2010 (NSW) s 10.

    ↑

50. Criminal Law (Sentencing) Act 1988 (SA) s 7C(2): ‘Nothing prevents a statement being furnished to a court under section 7A or 7B from containing recommendations relating to the sentence to be determined by the court’); Sentencing Act (NT) s 106B (5A): ‘A victim impact statement … may contain a statement as to the victim’s wishes in respect of the order that the court may make in relation to the offence…’.

    ↑

51. Victims of Crime Assistance Act 2009 (Qld) s 15(3).

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52. Ibid s 15(4).

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53. Criminal Law (Sentencing) Act 1988 (SA) s 7B.

    ↑

54. Ibid s 7B(1).

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55. Ibid s 7B(2)(a).

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56. Ibid s 7B(2)(b).

    ↑

57. Loukas Founten, ‘Lana Towers Murder: Impact of Domestic Violence Extends to Community, Court Told’, ABC News (online), 7 November 2014 <http://www.abc.net.au/news/2014-11-07/victims-of-crime-commissioner-social-impact-statement/5874916>.

    ↑

58. Victims’ Rights Act 2002 (NZ) s 23.

    ↑

59. Ibid s 25.

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60. Ibid s 26.

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61. Ibid s 27.

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62. Ibid s 17.

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63. Ibid ss 17, 18(a). The prosecutor must also inform the victim that the information given has to be recorded and may be verified through one of two procedures outlined in s 19.

    ↑

64. Ibid s 18(b)–(c).

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65. Canadian Criminal Code s 722(1). In Canada, criminal law is a federal matter but the processes related to victim impact statements are a matter for each province. The Commission has not conducted an exhaustive review of how each province administers its victim impact statement scheme.

    ↑

66. See An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) 24 [26] (comes into force 90 days after the date of assent).

    ↑

67. Ibid [26].

    ↑

68. Ibid 33, Form 34.3.

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69. Ibid 33, Form 34.3.

    ↑

70. Ibid 25, [26].

    ↑

71. 18 USC § 3771(a)(4).

    ↑

72. 18 USC §§ 3771(d)(3), (d)(5). The application for review must occur within 10 days.

    ↑

73. 435 F 3d 1011 (9th Cir, 2006).

    ↑

74. Ibid [1017]. Note that the Court of Appeals considered that the application to have the sentence re-opened needed to first be considered by the District Court, but stated that the District Court needed to be ‘cognizant that the only way to give effect to Kenna’s right to speak … is to vacate the sentence and hold a new sentencing hearing’.

    ↑

75. Thomas Weigend, ‘Sentencing and Punishment in Germany’, in Michael Tonry and Richard Fraser (eds), Sentencing and Sanctions in Western Countries (Oxford University Press, 2005) 188.

    ↑

76. Jo-Anne Wemmers, ‘Victim Policy Transfer: Learning From Each Other’ (2005) 11(1) European Journal on Criminal Policy and Research 121, 125.

    ↑

77. Ibid 125–6. See also Susanne Walther, ‘Victims’ Rights: Procedural and Constitutional Principles for Victim Participation in Germany’ in Edna Erez, Michael Kilchling and Jo-Anne Wemmers (eds), Therapeutic Jurisprudence and Victim Participation in Justice (Carolina Academic Press, 2012) 97, 104–5.

    ↑

78. Kerstin Braun, ‘Giving Victims a Voice: On the Problems of Introducing Victim Impact Statements in German Criminal Procedure’ (2013) 14 German Law Journal, 1889, 1891.

    ↑

79. Renée Kool and Georgianna Verhage, ‘The (Political) Pursuit of Victim Voice: (Comparative) Observations on the Dutch Draft of the Adviesrecht’ (2014) 10(4) Utrecht Law Review 86, 90.

    ↑

80. Ibid.

    ↑

81. Ibid.

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82. Ibid 91.

    ↑

83. Ibid 90.

    ↑

84. Ibid.

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85. Ibid 91.

    ↑

86. Ibid 91–2.

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87. Government of the Netherlands, Teeven Elects Unrestricted Rights for Victims to be Heard (13 November 2014) <http://www.government.nl/news/2014/11/13/teeven-elects-unrestricted-rights-for-victims-to-to-be-heard.html>.

    ↑

88. T Marshall, ‘The Evolution of Restorative Justice in Britain (1996) 4(4) European Journal on Criminal Policy and Research 21, 37 cited in Jacqueline Larsen, Restorative Justice in the Australian Criminal Justice System (Australian Institute of Criminology Reports Research and Public Policy Series, 2014) vi, and described as ‘widely accepted’. See Chapter 3 of this paper for discussion of restorative justice principles.

    ↑

89. Koori courts operate at both the Magistrates’ Court and County Court.

    ↑

90. Note that the Koori Court ‘imprisons offenders at about the same rate and for the same length of time as other cases in the general criminal jurisdiction’. County Court of Victoria, Annual Report 2013–2014 (2015) 13.

    ↑

91. The Australian Institute for Criminology and the Centre for Innovative Justice both note that while Indigenous courts employ restorative practices, their purposes focus on ensuring culturally relevant sentencing processes for Indigenous offenders, and are not necessarily focused on restoring the victim: see Jacqueline Larsen, Restorative Justice in the Australian Criminal Justice System (Australian Institute of Criminology Reports Research and Public Policy Series, 2014) 15; Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (May 2014) 26.

    ↑

92. County Court of Victoria and Department of Justice, County Koori Court: Final Evaluation Report (September 2011) 35. Victims are not included in the description of the ‘sentencing conversation’ of Judge Smallwood in ‘Report of the Judge in Charge of the County Koori Court’, in County Court of Victoria, Annual Report 2013–2014 (2015), 13.

    ↑

93. Neighbourhood Justice Centre, Evaluating the Neighbourhood Justice Centre in Yarra: 2007–2009 (Victorian Government Department of Justice, 2010), 2. The Neighbourhood Justice Division sits in Collingwood only and deals with criminal matters in the summary procedures jurisdiction of the Magistrates’ Court.

    ↑

94. Richard Fox, Victorian Criminal Procedure (Federation Press, 2015) 95–6.

    ↑

95. Meredith Rossner et al, The Process and Dynamics of Restorative Justice: Research on Forum Sentencing (University of Western Sydney, 2013) 7. Offences not eligible include serious offences involving violence, murder, manslaughter, offences involving family violence and offences involving a weapon: Criminal Procedure Regulation 2010 (NSW) regs 63(2)–(4).

    ↑

96. Criminal Procedure Regulation 2010 (NSW) regs 61(a), (d).

    ↑

97. Ibid reg 62(a)

    ↑

98. Ibid regs 58(1)(i)–(j). See regulation 58(1) generally for ‘summary of process for participation in program’.

    ↑

99. Jacqueline Larsen, Restorative Justice in the Australian Criminal Justice System (Australian Institute of Criminology Reports Research and Public Policy Series, 2014) 7.

    ↑

100. Criminal Procedure Regulation 2010 (NSW) reg 58(1)(l).

     ↑

101. Queensland Government, Justice Mediation <https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/setting-disputes-out-of-court/justice-mediation/>.

     ↑

102. Ibid.

     ↑

103. Sentencing Act 1997 (Tas) ss 84–86; Sentencing Act 1995 (WA) ss 16(1)(d), 27–30.

     ↑

104. Jacqueline Larsen, Restorative Justice in the Australian Criminal Justice System (Australian Institute of Criminology Reports Research and Public Policy Series, 2014) 20.

     ↑

105. Ibid. See also Sentencing Act 1995 (WA) s 28.

     ↑

106. For discussion, see generally Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (May 2014) 30–1.

     ↑

107. Sentencing Act 2002 (NZ) s 24A. These amendments were introduced by the Sentencing Amendment Act 2014 (NZ).

     ↑

108. Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (May 2014) 31–2.

     ↑

109. Sentencing Act 2002 (NZ) s 24A(2)(b).

     ↑

110. Ibid s 10(1).

     ↑

111. Ministry of Justice New Zealand, Pre-sentence Restorative Justice Court Process <http://www.justice.govt.nz/policy/criminal-justice/restorative-justice/restorative-justice-process-pre-sentence>.

     ↑

112. For commentary, see Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, (Report No 103, 2006) [14.9]; Edna Erez and Julian V Roberts, ‘Victim Input at Sentencing’ in G Bruinsma and D Wesiburd (eds), Encyclopedia of Criminology and Criminal Justice (Springer, 2014) 5425, 5428; Jonathan Doak et al, ‘Victims and the Sentencing Process: Developing Participatory Rights?’ (2009) 29(4) Legal Studies 651.

     ↑

113. Jonathan Doak et al, ‘Victims and the Sentencing Process: Developing Participatory Rights?’ (2009) 29(4) Legal Studies 651, 672–3.

     ↑

114. See, eg, Edna Erez et al, Victim Impact Statements in South Australia (Australian Institute of Criminology, 1996) 213. This study found that half of the survey participants stated that providing victim impact statement material made no difference, while a small number of participants said it ‘upset or disturbed’ them.

     ↑

115. A review of the use of victim impact statements conducted by the Victorian Department of Justice in 2014 describes the current system of victim impact statements in Victoria as ‘important in enabling victims to have a greater voice at sentencing’: Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 80.

     ↑

116. Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 72.

     ↑

117. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [47]–[48].

     ↑

118. Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 70.

     ↑

119. Christine Englebrecht, ‘The Struggle for ‘‘Ownership of Conflict’’: An Exploration of Victim Participation and Voice in the Criminal Justice System’ (2011) 36(2) Criminal Justice Review 129.

     ↑

120. For a domestic example, see the Sentencing Act 2002 (NZ) ss 10, 24A–31; for an international example, see the International Criminal Court (discussed in detail in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 3: The International Criminal Court: a Case Study of Victim Participation in an Adversarial Trial Process (May 2015)).

     ↑

121. Michael King et al, Non-Adversarial Justice (Federation Press, 2009), 50–2.

     ↑

122. Ibid.

     ↑

123. Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims,
     Offenders and the Community (May 2014). The proposals from this report are also considered in Chapters 5 and 7.

     ↑