Flinders Journal of Law Reform
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Flinders Journal of Law Reform |
|
TYRONE KIRCHENGAST[†]
Victim impact evidence was introduced by the Victim Rights Act 1996 (NSW) to facilitate greater victim participation in sentencing. Since then, various decisions of the New South Wales Court of Criminal Appeal have read down these provisions, now contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). Most recently, R v Slack [2004] NSWCCA 128 (‘Slack’) ruled that impact evidence is unlikely to influence sentence because facts in aggravation of an offender’s sentence need to be established beyond reasonable doubt. Following Slack, the bulk of submissions contained in a victim impact statement may now be rejected, against the intent of Parliament providing for their tenure in the first instance. This article explores the consequences of Slack and the ways in which this decision will further limit the justiciable and therapeutic outcomes intended by the 1996 reforms.
Since the introduction of the power to tender a victim impact statement, the New South Wales Court of Criminal Appeal (‘NSWCCA’) has restrictively interpreted the enabling legislation,[1] limiting the role victim impact evidence plays in sentencing proceedings. A victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of sentence.[2] R v Previtera (‘Previtera’)[3] provided the initial obstacle for family victims holding that family statements cannot be taken into account where the primary victim dies as a result of the offence.[4] This, as Hunt CJ at Common Law reasoned, was due to the fact that death is the ultimate harm, not to be surmounted by statements as to the value of the victim or their loss as felt by others.[5] This decision has been subsequently upheld by the NSWCCA in R v Bollen[6] and R v Dang[7].
Slack[8] maintains this line of restrictive interpretation by holding that substantial weight cannot be given to an account of harm in a victim impact statement unless that account is established pursuant to the persuasive burden of criminal law, beyond reasonable doubt.[9] In New South Wales, there is no requirement that an impact statement be sworn under the Crimes (Sentencing Procedure) Act 1999 (NSW) ss 26–30A. Nor are statements sworn as a matter of routine practice. As a court is required to be satisfied of the facts tendered against the defendant beyond reasonable doubt, Slack provides that the weight accorded to the account of harm stated by the victim be read in accordance with its lack of reliability under the law of evidence.[10] Harm, where constitutive of an element of the offence charged, is always relevant to the determination of sentence.[11] Where harm is peripheral to the elements of an offence, or is otherwise unfamiliar to the sentencing judge, even where it is adduced into evidence, it will be likely accorded less weight unless the consequences of such harm are made obvious to a court. This may be seen with the sentencing of sexual and indecent assault, where courts have not always been sensitive to the full impact of the ongoing harms that such offences occasion to victims.[12] Alternatively, a victim may be particularly forgiving, seeking to mitigate sentence where their offender has since redressed the harm originally occasioned, or where the offence was minor, trivial or without specific intent. It is with regard to these unknown or less obvious forms of harm that impact statements play a particularly significant role for the victim, by allowing the victim to raise before the court the consequences of harms not accounted for, or emphasised in, the prosecution case.
Following Slack, an account of harm to the victim will be accorded little weight save that harm already established in evidence at trial beyond reasonable doubt. The risk to victims is that significant aspects of a victim impact statement would be of lesser salience to the sentencing court. At best such information may be ‘unlikely to be able to contribute significantly to the finding of facts adverse to an accused’.[13] The problem for victims will be that a court may be unwilling to draw information from their impact statements, one of the few opportunities affording victims some contribution to the sentencing of their offender, unless the information presented has previously been adduced under the law of evidence.[14] As such, aspects of the harm occasioned during an offence may now be excluded as being of little significance to an assessment of facts adverse to an accused, despite being of significance to the victim. This consequence is exacerbated where the victim impact statement tells of harms not specifically at issue at trial.
The NSWCCA’s ruling in Slack can be viewed as particularly restrictive for two reasons. First, Slack applies to all victim impact statements. Unlike the Previtera rule, which only applies to family statements in homicide cases, Slack limits the inferences which may be drawn from any impact statement tendered before any New South Wales sentencing court. Secondly, as far as sentencing is concerned, evidence or information tendered before a sentencing court is usually adduced without being subject to the law of evidence. Thus, unless an order is made to the contrary, all evidence before a sentencing court may be considered. The bulk of submissions on an appropriate sentence or documents tendered throughout the sentencing process may be considered by the sentencing court in its discretion. This would normally include mitigating evidence adduced by the defence.[15] However, where the victim seeks to adduce information as to the nature of the offence by way of impact statement, drafted either personally or with the assistance of a psychologist, social worker, counsellor or medical specialist,[16] any claim adverse to the accused may now be disregarded unless tested under the law of evidence, or directly supported by evidence formally adduced at trial, again under the law of evidence. Slack therefore applies the sentencing principle that facts adverse to the defendant need to be proved beyond reasonable doubt.[17] Facts in favour of the defence need only be established on the balance of probabilities. Thus, a sentencing court must now treat victim impact material conditional upon its consistency with factual material proven beyond reasonable doubt. Any claims not supported in this way may be a priori disregarded.
Varying practices exist as to the signing, swearing or examination of victim impact statements across the States and Territories of Australia. In Victoria, a victim impact statement must be made in writing by statutory declaration, or given orally as evidence taken on oath.[18] In Western Australia, victim impact statements may be tendered on such basis as the court thinks fit, including the possibility that such evidence be sworn.[19] Western Australia does not prescribe that impact statements be signed or subject to potential cross examination, though a court may rule as inadmissible the whole or any part of a victim impact statement. The Australian Capital Territory requires that a victim impact statement be signed.[20] Northern Territory practice requires that impact statements are also signed.[21] However, the person signing the impact statement as tendered, or presenting the information to the court orally, may, with the leave of the court, be subject to cross-examination.[22] South Australia[23] and Tasmania[24] each require that victim impact statements be furnished in accordance with the rules of court, but would be otherwise unsworn. Although South Australian provisions do not require that an impact statement be sworn they will usually be signed by the victim. Section 81 of the Tasmanian legislation allows a sentencing court to receive any document, not being bound by the rules of evidence. New South Wales[25] and Queensland[26] do not require that victim impact statements be sworn or otherwise declared. Although Queensland provisions do not require a statement be sworn, statements will ordinarily be signed and the victim informed that they may be required to attend court to answer questions, should the defence take issue with their statement.[27] The Crimes (Sentencing Procedure) Regulation 1999 (NSW) reg 10(2) provides that a statement must be signed and dated by its author, who may be the victim.
Internationally, United Kingdom provisions allow victims to make a personal statement to the police at the time of reporting an offence.[28] Victims are informed that their statement will become part of the case file to be disseminated to all parties involved in the matter, including the Crown Prosecution Service, DPP, defendant and courts. The Home Office, in their 2006 advice to victims of crime, indicate that a victim should be ready to answer questions on the content of their personal statement.[29] Questions may flow from the police investigating the offence, or the defendant or judicial officer hearing the matter, should charges be laid and prosecuted. Canada similarly affords victims the right to tender a victim impact statement under s 722 of the Canadian Criminal Code, albeit the procedure for tendering such documents varies between each province and territory. It is generally taken that victims are informed that they may be examined on the content of their impact statement when preparing the document.[30] By contrast, New Zealand provides for the signing of victim impact statements by the victim under s 19(3) of the Victims’ Rights Act 2002 (NZ) after the prosecutor has made the victim aware that the information they give must be indeed true. Under s 19(4) the prosecutor may be required to add her signature to the impact statement certifying that the victim was required to ensure that the information provided was true. The New Zealand provisions differ from those requiring the victim to submit to cross examination by shifting the duty to present impact evidence both accurately and truthfully onto the prosecutor, prior to the tenure of the statement.
The standing of victim impact evidence on the basis that statements be declared on oath, or subject to cross examination, addresses concerns as to the tenacity of such material, as raised in Slack. The issue for New South Wales is whether, in light of any specific provision requiring the swearing of impact evidence, that any of the provisions in place in other jurisdictions ought to be adopted. Further, the desirability of availing victims to the more confronting modes of examination, such as cross examination in open court, also begs consideration, as such examination may well undermine the other important, therapeutic aspects of the tenure of victim impact evidence in the first place.
By connecting the use and application of victim impact statements to traditional principles of sentencing, specifically the principle that facts in aggravation need to be established beyond reasonable doubt, the NSWCCA is tending towards a position that such instruments are of little justiciable value to a sentencing court. The consequence for the victim is that the therapeutic benefits of the tendering of victim impact statements, widely recognised in the victim’s literature,[31] will be available to fewer victims. This is because the purpose of a victim impact statement, of which many victims take advantage,[32] is to inform the sentencing court inter alia of the impacts of the harms or injuries that may not have arisen, or been peripheral, at trial —- issues that may ultimately link to and help explain aggravating circumstances and afford victims some access to justice. Slack now limits the very consideration of such material, and may further seek to vitiate the therapeutic outcomes of victim rights in New South Wales by dissuading victims from tendering relevant information before a sentencing court, something long encouraged of other participants in the sentencing process. Recommendations for the examination of impact evidence, prominent in other jurisdictions, needs to be considered against the notion that such processes may stand against the free expression of the impact of the offence upon the victim, as put by the victim.
Slack involves two sexual assaults committed by the appellant against the victim, who at the time of the offence was under the age of 16 years. The offence of aggravated sexual assault, prescribed under the Crimes Act 1900 (NSW) s 61J, provides a maximum penalty of 20 years imprisonment. The appellant plead not guilty to on both counts and was tried in the District Court of New South Wales before a jury, who returned a verdict of guilty on both counts. The trial judge sentenced the appellant to five years imprisonment, with a non-parole period of three years.
The sexual assaults were alleged to have occurred during the same evening, some time between 12 September and 31 October 2000. The victim was a friend of the daughter of the appellant. The assaults occurred when the victim was invited to sleep at the appellant’s house. The victim gave evidence to the effect that she had slept over the appellant’s house on three or four occasions, and that when she did so she slept in a double bed with the appellant’s daughter. The victim gave further evidence that after she had gone to bed and the appellant’s daughter had apparently fallen asleep, the appellant entered the room, knelt beside the bed, put his hands under the bedcovers, placed two fingers in the victim’s vagina and moved his fingers around for about two to three minutes. The appellant then stopped and left the room but came back again shortly afterwards, and again knelt beside the bed, put his hands under the covers, and placed two fingers in her vagina for about one minute. The next day, the victim was driven home. Several days later, the victim sought assistance from the Kids Helpline, a free 24 hour telephone counselling service for children from five to 18 years of age across Australia. The victim informed her mother of the sexual assault sometime around March 2001, who then brought the matter to the attention of the police.
The Crown case against the appellant consisted of testimony from two counsellors from the Kids Helpline. At trial, dispute arose as to the exact date of the sexual assault, discrepancies in the victim’s evidence as to the nature of the assault, specifically whether penetration had actually occurred, and whether the sexual assault was physically possible given testimony as to the positioning of the bed against a wall.
The appeal was brought before the NSWCCA on two grounds. The first ground, that the ‘appellant appeals against his conviction on the ground that the jury’s verdicts were unreasonable and cannot be supported on the evidence’, failed on the basis that the jury could reasonably have been satisfied of the appellant’s guilt notwithstanding the above discrepancies and deficiencies.[33] The second ground, that the severity of the penalty imposed was manifestly excessive, led to the consideration of the victim impact evidence before the sentencing court.
The NSWCCA was comprised of Grove, Simpson and Sperling JJ. Sperling J, giving the lead judgement with which Grove and Simpson JJ agreed, ruled that the sentencing judge did not give weight to the victim impact statement ‘beyond a finding that the offence was not without some trauma to the complainant’.[34] During the course of the sentencing hearing defence counsel submitted that the ‘actual penetration was to the slightest degree and was not accompanied by physical discomfort, damage or trauma’.[35] This is the point upon which Sperling’s J decision rests, that the sentencing judge used the victim impact evidence, adduced before the sentencing court but not in accordance with the law of evidence, to reject counsel’s submission that the sexual assault was not without some trauma to the victim.
Sperling J went on to establish the way in which the victim impact statement was used as the basis for rejecting the defendant’s submission requesting that a nominal view be taken of the particular harms occasioned to the victim. His Honour noted that the statement told of how, subsequent to the offence, the victim became withdrawn and easily upset. It also told of how the victim became anxious about male figures in her life, including her father, and of how the victim vomited after meals and became argumentative with friends and teachers. The victim had fifteen sessions of counselling at fortnightly intervals, but found reliving the experience upsetting. Further, the statement told of how the victim had attempted to harm herself, once with Panadol and twice by cutting her wrist, which she indicated was the only way to stop the mental trauma. Sperling J took the sentencing court’s reference to this statement, however, as indicating the offence caused some emotional harm to the victim. Importantly, his Honour ruled that the sentencing court’s reference to the victim impact statement did not indicate ‘a finding as to the nature and extent of such harm in any particular respect’.[36]
With this in mind, Sperling J drew a more general conclusion as to the use of victim impact evidence in sentencing proceedings. His Honour ruled that, with regard to victim impact evidence, that substantial weight cannot be given to an account of harm in an unsworn statement. Although harm to the victim of an offence is a relevant consideration,[37] it is best classed as a factor in aggravation. As such, the court must be satisfied as to the facts beyond reasonable doubt out of fairness to the defendant. Put differently, where information or evidence comes before the sentencing court, the court must be satisfied to the requisite criminal standard of proof before it allows such information or evidence to impact negatively on the sentence of the defendant.
Sperling J ruled:
Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s 28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime’s effect.
The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.[38] (Emphasis added).
And with regard to the submission on behalf of the defendant that the sexual assault was to ‘slightest degree’,[39] Grove J commented:
The balance of the submission was rejectable by consideration of the facts of the offences. However, her Honour approached her rejection of the submission that there was on trauma associated with the offence "having regard to the Victim Impact Statement". As Sperling J has pointed out, such a statement may be given weight in determining the appropriate punishment, but such unsworn and untested material is unlikely to be able to contribute significantly to the finding of facts adverse to an accused which are required to be sustained by proof to the criminal standard.[40]
Information presented in sentencing hearings is generally not subject to the law of evidence. Contrary to this assumption, however, sentencing courts are under a general obligation to establish aggravating circumstances beyond reasonable doubt. This rule is of general application under the common law, unless modified by statute.[41] No current provisions in New South Wales sentencing legislation seek to modify this rule. However, despite acknowledging that victim impact statements still have a place within sentencing courts, Slack limits the significance of victim impact evidence by ruling that it is less reliable by virtue of it being unsworn. The consequence of this rule is to lessen the significance of victim impact evidence, particularly where such evidence may go towards expanding the consequences of actual harms from the perspective of the victim. It is arguable that this is in direct contradiction with the intent of Parliament availing such statements as potentially impacting an offender’s sentence.[42]
The ambit of the 1996 reforms providing for an expanded role for the victim of crime were threefold. The Victim Rights Act 1996 (NSW) was the key vehicle through which these reforms were prescribed. This Act introduced a Charter of Victim Rights and various government bodies advising the government on the status of policies and administrative arrangements for the regulation of victim issues, such as victims’ compensation, and for the promotion of victim assistance services within the community. The Victim Rights Act 1996 (NSW) also introduced the power to tender a victim impact statement before the District and Supreme Courts of New South Wales. The Victim Rights Act 1996 (NSW) also inserted the current provisions concerning victim impact statements into the Criminal Procedure Act 1986 (NSW) Pt 6A (ss 23A–23E). These sections were later transferred to the Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 Div 2. The third of the developments, the Victims Compensation Act 1996 (NSW), now retitled the Victims Support and Rehabilitation Act 1996 (NSW), repealed the Victims Compensation Act 1987 (NSW), re-enacting this legislation by prescribing a table of personal injuries for which compensation is payable, including the standard amount to be paid for each injury. The basis for such widespread change for the introduction of a comprehensive network of rules, laws and policies for the management of victim rights and interests at law can be found in an increased need to recognise victim harm.[43] These reforms, however, were actioned against a political background of an increasing awareness of law and order issues, particularly increasing individual awareness as to the impacts of crime on the community and individuals, and the under-representation of the victim in the criminal justice system generally. Increased victim power, however, was met with scepticism by the courts. This can be seen through decisions such as Slack. However, other decisions affirm the important role the victim plays in the actualisation of harm as a factor relevant to sentence. It is against this vexed background that the common law interpretation of the power to tender an impact statement must be read.
Recognising the significance of the harm to the victim, it was held in R v Mansour (‘Mansour’)[44] that it was appropriate that a trial judge recognise the impact of crime on victims and their families by giving public acknowledgement to the harm that has been suffered as a result of an offence. However, on appeal, it was held that
[i]t is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims.[45]
The submission in Mansour, leading to the discussion of the relevance of the impact of crime on victims, concerned the sentencing judge’s reference to the ‘immeasurable grief’ of the family of the deceased. The NSWCCA ruled, however, that the sentencing judge did not consider irrelevant material, and that a court is always entitled to consider the plight of the victim when assessing the general culpability of the offender and seriousness of the offence. What is of particular interest is the way in which the offence impacts on a victim, including her recovery and the injuries she sustained.
However, a sentencing court is not to be concerned with the role of the victim in the justice system, or the loss of an individual as considered by others. These latter considerations are characterised as private, subjective views, which if allowed to influence sentence, may result in the handing down of a disproportionate sentence on the basis that private views miscarried the objectivity of the court.[46] Mansour therefore stands as authority for the notion that the impact of crime upon victims is materially relevant to the sentencing court so long as the impact is constrained to the resultant injury sustained from the offence. Personal perspectives on the offence, the offender, or reflections of the loss suffered by the victim as characterised by others, are deemed irrelevant.
The common law has long allowed for the consideration of victim harm as a matter of sentencing discretion.[47] A statutory basis for the consideration of victim interests was inserted into the Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A in 2002.[48] However, accounts of the type of harm suffered by victims have been limited by the courts in accordance with their duty to construct an objectively proportionate sentence based on the overall seriousness of the offence.[49] The questionable basis of the personal reflection of victims in New South Wales is generally made on the basis that victims tend to construe the harm occasioned against them subjectively and in terms of vengeance, emotion or other personal sentiment. It is on this basis that R v RKB (‘RKB’) held that an objective assessment of the effect of the crime is required; something not to be expected from the victim.[50]
Subsequent applications of the decision of Slack suggest that sentencing courts are unlikely to accept victim impact evidence as tenable where information is taken from a statement, supporting an aggravated view of facts in issue. The case of R v Maisey[51] demonstrates that on review before the NSWCCA, a sentence will be open to reconsideration where weight has been given to evidence provided by the victim, and in particular where no other source of evidence acts to corroborate its legitimacy, beyond reasonable doubt:
It would have been better if the Crown had placed an up to date medical report with the assistance of up to date x-rays. They, of course, may have been far from conclusive. With complaints of pain a court and the doctors largely depend on the veracity and resilience of the person suffering the injuries.
In R v Slack [2004] NSWCCA 128 at [58] Sperling J said:
Harm to the victim of an offence is a relevant consideration: Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [95], Hall (NSWCCA 28 Sep 95, unrep). It is a factor in aggravation. As such the court must be satisfied as to the facts beyond reasonable doubt.[52]
Victim impact evidence was similarly considered in R v Wilson (‘Wilson’).[53] In this instance, the court ruled that:
Notwithstanding a plea of guilty, it is always open to an offender to challenge the factual bases of the case advanced by the Crown. Witnesses may be called for cross-examination to enable determination of disputed issues of fact. This may happen, particularly, where the Crown seeks to establish circumstances aggravating the offence. However, although there appears to be nothing in Part 3, Division 2 of the Sentencing Procedure Act to prevent it, it has not been customary for cross-examination to take place in relation to the contents of victim impact statements. S30A of the Sentencing Procedure Act permits a victim, or a member of the immediate family of the victim, or some other representative of the victim, to read out the whole or any part of a victim impact statement to the court after it has been duly received. The section does not appear to envisage that cross-examination on the content of the statement would be permitted.
It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded.[54]
As indicated in Wilson, provisions for the testing of evidence while they apply to evidence adduced at trial do not apply to victim impact statements. This is because the purpose of a victim impact statement is rather different from that of evidence going towards facts in issue adduced at trial. An impact statement, as indicated below, provides opportunities that would not otherwise be available to victims of crime. Certainly problems exist as to the need to coalesce the law of evidence with the power to tender an impact statement. However, in each of the recent cases applying Slack, the tendency has been to treat as suspicious material coming from the victim advocating their injury, trauma or other aspect of their victim status. Authority suggests that strong grounds exist for the limitation of such information as impacting unfairly on the defendant, especially if suggestion exists of the victim impact statement being exaggerated, misleading or false, or alternatively telling of forgiveness or empathy on the part of the victim. Whatever their content, the introduction of victim impact statements sought to help ameliorate the harm caused by the offence to the victim, especially harm that may be aggravated by virtue of a trial process otherwise ignorant of the voice of the victim. Given the legitimate purpose of impact statements, a question need then be asked of the current status of such statements, and in particular, their future use as a tool of therapeutic jurisprudence. As suggested in Wilson, cross-examination of statements is possible under New South Wales provisions, though not specifically envisaged. Their purpose as tools of therapeutic jurisprudence, if required to be made pursuant to the law of evidence, needs to be considered.
Victim impact statements were introduced into sentencing courts to meet various ends. In a justiciable sense, impact statements play a role informing the sentencing judge of the actual harms that the victim (or their family) have experience, or suffered as a result of the offence. Given that the sentencing court will be specifically concerned with an assessment as to the objective seriousness of the harm occasioned, any comments distracting from such an analysis will be generally excluded from impacting on the final sentence. Actual harms from the perspective of the victim are prone to being characterised as manifestly private, and as matters of speculation derogating from the doctrine of proportionality emphasising an objective evaluation of the facts.[55] Such material is likely to be deemed irrelevant, prejudicial, vengeful, or alternatively sympathetic or forgiving; information not conducive of the requisite objective assessment that current sentencing law requires. As Slack indicates, the significance of victim impact statements may now be reduced given tensions between the persuasive burden and their aggravating content. As Wilson suggests, a judge may refuse to accept a victim impact statement, attribute it less weight, or potentially require it to be sworn. This line of authority raises the real risk that victims will be further marginalised within the criminal justice system. This is particularly so if victims cease tendering impact evidence on the basis that the court will likely dismiss it when formulating a sentence. However, despite their current status within sentencing courts, victim impact statements also provide an invaluable service to crime victims not found elsewhere in the criminal justice process.
Putting the justiciable issues of statement reliability aside for a moment, various authors have noted significant therapeutic benefits accompanying the victim impact statement movement.[56] Therapeutic benefits may be identified as anything that ameliorates a victim’s suffering and increases a victim’s overall satisfaction with court proceedings, and their experiences with the justice system as a whole. Providing the victim increased voice and representation in judicial proceedings, or in the final sentence imposed on their offender, has been found to lead to higher levels of satisfaction amongst victims due to the recognition accorded to their status as a constituent of the criminal action.[57]
Edna Erez,[58] for example, has documented various therapeutic outcomes for victims where given the option to tender an impact statement in court. Erez classifies these benefits into three broad categories. The first includes procedural justice concerns, including the opportunity to be heard and involved in key justice proceedings related to their case. Second, where the court has examined the content of the impact statement with a view to the sentence of the offender, and made this known in the sentencing decision of the court. And finally, where the impact statement addresses an offender’s admission of guilt in cases where a guilty plea has been entered. In these instances, Erez notes that the outcomes for victims choosing to tender an impact statement are likely to be beneficial, allowing victims an opportunity to air their grievances in a way that accords with judicial processes for the determination of an appropriate sentence.
However, Erez also notes that key to the therapeutic benefits of victim impact statements is that the victim must understand and believe that their statement is being taken seriously and, most importantly, is believed by the sentencing judge. Where a statement is merely tendered, read but then rejected as irrelevant to sentence, the therapeutic outcomes would be marginal. Clearly, in certain circumstances, where impact statements contain irrelevant, prejudicial or vengeful sentiments then exclusion is warranted. Impact statements do not provide victims a vehicle through which any comment can be made on the offence or offender. For this reason statements indicating an appropriate sentence or level of punishment are usually rejected. However, statements which highlight the shock or loss felt by victims as directly related to the harm occasioned by the offence should be of benefit to the court. These benefits include the fact that impact statements are likely to inform the court about the suffering of the victim — something that would be unlikely to be entered into evidence at trial. It is not that courts disregard the nature of the harm occasioned, but that a victim’s perspective on their personal suffering is something that may not emerge until an opportunity is made available, and space provided in which the victim can assert their own views on the nature of the offence. Unfettered by rules of evidence as to relevance, or technical categories of harm in which testimony flows from medical or other experts, victims, via an impact statement, are free to express to the court the actual consequences of the offence upon them.
A question needs to be asked, then, of the extent to which Slack seeks to exclude information presented in an impact statement. At its best, Slack seeks to exclude any statement that may aggravate or be seen to aggravate the seriousness of the offence, or culpability of the offender. Thus, even the most generic statement that talks of the harm felt by the victim or the difficulty the victim is experiencing getting on with their life following the offence can be objected to by the defence as an aggravating statement prohibited under Slack. Thus, with perhaps the exception of benign material concerning the victim’s age, occupation, and family or relationship status, little impact material would be allowed to influence sentence. For the most part, the entire impact statement would be struck out.
Given that the purpose of victim impact statements are twofold — as an instrument through which an appropriate sentence can be informed, and as a medium through which a victim can play an active role in sentencing proceedings intimately connected with them — any decision to lessen the relevance of victim impact statements will impede the broader therapeutic outcomes identified herein. This means that the position taken in Slack may see a direct decline in the therapeutic benefits available to victims, where information in a statement may be excluded because it is not directly supported by evidence. The issue therefore is the way in which the current provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically the therapeutic outcomes available to victims, be coalesced with regard to the requirement that facts in aggravation be established beyond reasonable doubt.
The viability of the victim impact movement is dependent upon the validity of victim impact statements in two key interrelated ways. The first includes the use of impact evidence as a source of justiciable concern, through which sentencing courts may make more informed decisions as to offence seriousness and offender culpability. The second includes the therapeutic benefits that come with participation. Through the ability to influence the sentence of the offender, in a matter that directly impacts upon the well-being of the victim, the victim is able to mete out accounts of the actual harms they have suffered in a way that may otherwise go unexpressed or unheard.
Certain authors have argued for the viability of the second outcome despite the limitation of the first. Booth, for example, has argued that the tendering of impact evidence has definitive therapeutic outcomes despite the fact that courts are inclined to reject their content.[59] The fact that victims are able to tender a document they feel is relevant to the court is therefore a meritorious process in itself, and something which Booth argues is an outcome generally appreciated by victims. However, surely victims would be inclined to feel differently if they knew the sentencing court merely took receipt of their statement only to give it little or no regard.
The latest authority from the NSWCCA in Slack provides a grim outlook for victims already battling to maintain a presence in the New South Wales justice system. As various authorities of the court have shown, the role of the victim is certain only in its broadest functions — as the site of harm and criminal injury. Some judges are reluctant to even admit that the victim has experienced undue suffering as a result of the offence, opting instead for the sterile objectivity required in order to bring about a proportionate sentence. Following Slack, anything more than mere reference to the injury sustained, or the suffering of the victim as constituted objectively against community standards, is likely to be read down as unsubstantiated comments tending towards an aggravated reading of the offence upon the victim.
Taking into account the principles of sentencing raised in Slack, that the seriousness of the offence be construed objectively, and that facts against the accused ought not to be taken as aggravated by reference to unsworn evidence moving from the victim, then a compromise must be reached whereby all victim impact evidence is able to be presented as tenable to a sentencing court. As is the current case in Victoria, impact statements are required to be drafted by way of statutory declaration, or presented orally on oath. Similar provisions to those in Victoria would allow victims to present material that could be taken as adverse to facts in issue without the problem of such information being excluded as unreliable. Given that, where desirable, impact statements should be prepared as a matter of therapeutic jurisprudence, and that such statements ought to be considered where information is presented going to facts in issue, or where information is presented that relevantly extends on such facts in issues, it is preferable that the Crimes (Sentencing Procedure) Act 1999 (NSW) be amended to allow for the receipt of sworn statements, either by statutory declaration or orally on oath. Alternatively, or in addition to such amendments, impact evidence may be adduced so long as it is open to cross-examination, as suggested in Wilson. Recent policy changes within the New South Wales Attorney-General’s Department indicate that availing victims to possible cross-examination may now be the preferred route, raising victim impact testimony to the relevant evidential standard.[60] However, given the various protections in New South Wales court procedure for the limitation of the cross-examination of the victim this, at least as a means for procuring sworn evidence at first instance, may not appear ideal.[61] This is especially so in light of an acceptable, less adversarial, alternative in the form of sworn statements. It appears, however, that merely signing a victim impact statement would not be enough to overcome the constraints put in place by Slack.
It is clear from the case of Slack, and from its precedent value as demonstrated in the more recent cases, that the issue of victim participation within the criminal justice system must be revisited in order to resolve current tensions between the law of evidence, and respect for the status of victims as integral and valuable to the resolution of crime-related harm. Given that victim impact statements are rationalised inter alia as tools of therapeutic justice, and so long as this therapeutic purpose can be accepted as a matter of some import in the justice system, then compromise must be reached over the role of impact evidence and the nature of its standing. The answer lies in the further amendment of sentencing legislation to allow for the swearing of victim impact evidence, or perhaps the cross-examination of such evidence, if required. Although bringing victim impact statements to the relevant evidential standard in accordance with all other forms of evidence may solve issues as to admissibility, this may well detract from the purpose of the instrument in the first instance — broader participation by victims in a way that supports their restoration following a criminal offence. As indicated by Erez, victim impact statements have a purpose beyond sentencing law. Any movement towards a position that limits or discourages victim input, or constricts such input in accordance with strict standards of criminal proof, may well see a decline in the restorative benefits of such statements. This is particularly so where all or part of a victim’s story, their perspective on the actual harms they have suffered, though legitimate, falls just short of the standard of proof acceptable to the sentencing court. The answer to the problems presented by Slack must, however, begin with a broader appreciation of the utility of the victim in the criminal justice system, and that the criminal process may serve ends aside those of the determination of guilt, innocence or objective seriousness, on the part of the accused. A requirement that victim impact statements be sworn, or adduced by way of statutory declaration in New South Wales, would go some distance towards meeting the restrictions currently imposed by Slack. For the sake of maintaining the therapeutic outcomes supported by the current scheme, it is important that any amendment seek to encourage, and not limit, the telling of actual harms, albeit in an objective, fair, and ultimately tenable way.
[†] BA (Hons), LLB (Hons), GradDipLegPrac, PhD. Solicitor and Barrister (NSW). Associate Lecturer, Division of Law, Macquarie University, New South Wales. Email: Tyrone.Kirchengast@law.mq.edu.au.
[1] The Victim Rights Act 1996 (NSW) inserted the current provisions concerning victim impact statements into the Criminal Procedure Act 1986 (NSW) Pt 6A (ss 23A–23E). These sections were later transferred to the Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 Div 2. The original provisions were contained in the Crimes (Sentencing) Amendment Act 1987 (NSW), inserting s 447C into the Crimes Act 1900 (NSW). However, this provision never commenced, and was later repealed by the Victim Rights Act 1996 (NSW), to be transferred and re-enacted in the Criminal Procedure Act 1986 (NSW).
[2] A victim impact statement is a written statement compiled by the victim of an offence, or their representative, after conviction but before sentence. The impact statement is usually tendered by the prosecution during the sentencing hearing. Certain jurisdictions allow the impact statement to be read aloud to the court. See Crimes (Sentencing Procedure) Act 1999 (NSW) ss 26–30A.
[4] A primary victim is defined, in relation to an offence, as ‘(a) a person against whom the offence was committed, or; (b) a person who was a witness to the act of actual or threatened violence, the death or the infliction of the physical bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence.’ A family victim ‘in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.’ See Crimes (Sentencing Procedure) Act 1999 (NSW) s 26.
[5] Tyrone Kirchengast, The Victim in Criminal Law and Justice (2006) 192–94.
[9] As to the centrality of the criminal standard of proof, beyond reasonable doubt, see Woolmington v DPP [1935] UKHL 1; [1935] AC 462.
[10] As to the problem of framing an objective assessment of the offence with regard to a victim impact statement, see R v Blackwell [1996] NSWCCA (Unreported, Gleeson CJ, 27 June 1996).
[11] Crimes (Sentencing Procedure) Act 1999 (NSW) s21A; R v Geddes (1936) 36 (NSW) SR 554; R v Dodd (1991) 57 A Crim R 349; R v Veen [No 1] [1979] HCA 7; (1979) 143 CLR 458; R v Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465. See also Andrew Von Hirsch, Doing Justice: The Choice of Punishments (1976) 79.
[12] In such instances courts may use impact statements to inform themselves of the ongoing or consequential harms flowing from the sexualised nature of the assault, not considered at trial: see R v Pellew [2004] NSWCCA 434, [4, 21–24].
[13] Slack [2004] NSWCCA 128, [8] per Grove J.
[14] Ibid.
[15] Such evidence is admitted on the balance of probabilities.
[16] See Crimes (Sentencing Procedure) Regulation 2000 (NSW) reg 9. A victim impact statement may be drafted by any ‘qualified person’, which includes any person who is ‘qualified by training, study or experience to provide the particulars required for inclusion in a victim impact statement’. A victim impact statement may also be amended by the prosecutor with the consent of the author of the statement prior to it being tendered.
[17] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281; R v Storey (1997) 89 A Crim R 519. As to the particular problem of impact statements not being signed, see R v Nichols (1991) 53 A Crim R 455, 458–59 per Olsson J.
[18] Sentencing Act 1991 (Vic) s 95A(2).
[19] Sentencing Act 1995 (WA) s 26.
[20] Crimes Act 1900 (ACT) s 343.
[21] Sentencing Act (NT) s 106B(7).
[22] Sentencing Act (NT) s 106B(9).
[23] Criminal Law (Sentencing) Act 1988 (SA) s 7A.
[24] Sentencing Act 1997 (Tas) s 81A.
[25] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28.
[26] Criminal Offences Victims Act 1995 (Qld) s 14.
[27] Department of Justice and Attorney-General (Qld), Making a Victim Impact Statement (2005) 2.
[28] In the United Kingdom, ‘victim impact statements’ are commonly known as ‘victim personal statements’.
[29] Home Office United Kingdom, Making a Victim Personal Statement (2006) 8.
[30] Department of Justice (Canada), A Crime Victim’s Guide to the Criminal Justice System (2002) 16.
[31] See, for example, Edna Erez, ‘Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings’ (2004) 40 Criminal Law Bulletin 5, 483, 491–98; Tracy Booth, ‘The Dead Victim, the Family Victim and Victim Impact Statements in New South Wales’ (2000) 11 Current Issues in Criminal Justice 3, 292, 296.
[32] Ian Edwards, ‘The Place of Victims’ Preferences in the Sentencing of ‘Their’ Offenders’ (2002) Criminal Law Review 689.
[33] Slack [2004] NSWCCA 128 [16].
[34] Ibid [56].
[35] Ibid [55].
[36] Ibid [63].
[37] Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 [95]; Hall [1995] NSWCCA (Unreported, 28 September 1995). See also Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21A(2).
[38] Slack [2004] NSWCCA 128 [61–62].
[39] Ibid [8].
[40] Ibid.
[41] See, for example, Evidence Act 1995 (NSW) s 141(1).
[42] New South Wales Parliament, Parliamentary Debates, Legislative Assembly, 27 November 1997, 6697 (Paul Whelan, Minister for Police).
[43] Fiona Manning and Gareth Griffith, ‘Victims Rights and Victims Compensation: Commentary on the Legislative Reform Package 1996’ (Briefing Paper 12/96, New South Wales Parliament, 1996).
[45] Ibid [7] per Spiegelman CJ.
[46] See RKB [1992] NSWCCA (Unreported, 30 June 1992) as to the requirement that harm be construed objectively. Also see Slack [2004] NSWCCA 128, [61].
[47] Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656.
[48] Section 3A commenced on 1 February 2003.
[49] Previtera (1997) 94 A Crim R 76.
[50] [1992] NSWSC (Unreported, Badgery-Parker J, 30 June 1992).
[52] Ibid [57], [58] (emphasis in original).
[54] Ibid [27], [28].
[55] See, for example, the obiter of Hunt CJ at CL in Previtera (1997) 94 A Crim R 76, 86 and Bollen (1997) 99 A Crim R 510, 529–30.
[56] J V Roberts and Edna Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223. The idea that the tendering victim impact evidence may have therapeutic outcomes for victims is well documented in the literature. As to anecdotal arguments aligning therapeutic outcomes with the sentencing process see Ian Edwards ‘Victim Participation in Sentencing: The Problems of Incoherence’ (2001) 40 The Howard Journal of Criminal Justice 1, 43. As to recent research on therapeutic outcomes see above n 31. Erez (2004) and Roberts and Erez (2004) suggest that victim impact statements provide the victim of crime an opportunity to express a perspective on harms that may not otherwise be before the court. Realising that this information is acceptable to the court is key to any beneficial or therapeutic outcome. For a contrary view on the utility of victim impact statements, see Martin Hinton, ‘Expectations Dashed: Victim Impact Statements and the Common Law Approach to Sentencing in South Australia’ (1995) 14 University of Tasmania Law Review 1, 81–99.
[57] See, for example, the continental experience such as the one implemented in Germany. Here, victims are provided a role alongside the prosecutor as adhesive prosecutor, albeit this role is available only to those victims of serious offences. See Erez, above n 31, 483.
[58] Ibid, 483, 491–98.
[59] Tracy Booth, ‘Homicide, Family Victims and Sentencing: Continuing the Debate about Victim Impact Statements’ (2004) 15 Contemporary Issues in Criminal Justice 3, 253.
[60] Attorney-General’s Department (NSW) Victim Impact Statements: Information Package (2006) 5. The recommendation that victims be subject to possible cross-examination is not currently supported by any change to NSW sentencing legislation.
[61] Criminal Procedure Act 1986 (NSW) ss 93,294A.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FlinJlLawRfm/2007/5.html