Alcohol Violence: Should there be Reconsideration of Victim Impact Statements' Effect on Sentencing?
Wednesday 26 February 2014 @ 11.13 a.m. | Crime | Judiciary, Legal Profession & Procedure
Prior to its election, the now NSW coalition government announced (on 23 February 2011) that, if it was elected it would legislate: "to specifically provide that Courts in NSW may consider Victim Impact Statements by family victims in homicide cases when determining an offender's sentence".
After its election in May 2011, the Attorney General released a policy paper on the implementation of this proposal. After six months of consultation, the NSW government did not proceed with legislation because it found that there was no support in the submissions it received for its proposal and that the lack of support was even reflected in some submissions from representatives of homicide victims’ families.
With the whole debate around alcohol fueled violence, the recent deaths resulting from it and the government's move to control it and provide deterrence, the question of the treatment of Victim Impact Statements in homicide cases (cases involving death) and their relevance to sentencing in the courts has arisen again and is the subject of debate as the NSW government moves to change sentencing laws.
The Current Legislation
A Victim Impact Statement refers to a written statement containing particulars of:
- in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence;
- in the case of a family victim, the impact of the primary victim's death on the members of the primary victim's immediate family.
See Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) section 26.
Section 28 of the Act deals with receipt and consideration of the Statement by a court, with section 28(1) providing that if the court "considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender".
Sections 28(3) and (4) are also important, with subsection (3) providing that "if a primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate" while subsection (4) provides that "a court must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so".
NSW is currently the only Australian jurisdiction that will not take account of Victim Impact Statements in sentencing homicide offenders.
Why are Victim Impact Statements Currently Treated Differently in NSW?
The existing Victim Impact Statement legislation allows the courts to consider Victim Impact Statements by family members of homicide victims when sentencing. However, the NSW Supreme Court has held that it is not appropriate for the courts to take such victim impact statements into account, arguing that to do so in a homicide case would mean that a court could impose a higher sentence in a case where the victim has a loving and grieving family than where the victim does not and thus one life would be valued as greater than another.
This was a view that was the reason for the introduction of subsections 28(3) and (4) and reflects the earlier NSW Law Reform Commission's 1996 report on sentencing (at para 2.22), where it recommended that Victim Impact Statements should be inadmissible in death cases. The Commission in that report stated that, in such cases, a Victim Impact Statement:
"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; or the provision of a forum for the victim’s family and friends to assist in their healing processes".
In a report in The Conversation Professor Tracey Booth Senior Lecturer in Law at UTS points out that even when the NSW government conducted its initial inquiry in 2011 the:
"submissions it received expressed concern that the proposed legislation might 'undermine the therapeutic benefits for family victims'. Victims might feel compelled to submit an impact statement because offenders might receive lighter sentences if they did not. This could mean that victims who don’t want to or feel able to submit a statement would be forced to do so".
Thus rather than being a positive for victims such an approach might actually add to and increase the stress upon victims making a difficult time even worse.
A further complication pointed out by Professor Booth in her report is that while impact statements are currently scrutinised and edited, where the position was one of increased scrutiny and editing because it might effect of the penalty handed out in a case, then such would also act to increase pressure and stress on the victims.
Should Victim Impact Statements Continue to be Treated Differently?
The role of the courts is to act dispassionately and objectively, to find their way to the right outcome in terms of sentencing by considered and measured understanding of the facts. This process should not be obstructed or made more difficult by having to consider, as part of the process, matters which in the end prove to be only extraneous and stressful for the victims themselves. As Professor Booth points out, in homicide cases, a sentencing court is dealing with:
"the aftermath of violent crime. Impact statements give family victims the opportunity to speak about the impact of the crime and the deceased and to be heard by the court, the offender and the community. It is not a good use of law to taint this opportunity with uncertainty, frustration and further distress".
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