Academic journal article International Journal of Punishment and Sentencing

Victim Impact Statements in Homicide Cases: Should 'Recognising the Harm Done ... to the Community' Signify a New Direction?

Academic journal article International Journal of Punishment and Sentencing

Victim Impact Statements in Homicide Cases: Should 'Recognising the Harm Done ... to the Community' Signify a New Direction?

Article excerpt

Abstract: Victim impact statements have played an active role in voicing the harm caused to victims in a variety of criminal cases for the past 8 years in New South Wales. However their role in determining sentence in homicide cases has been limited by Parliament and strictly prohibited by the Criminal Court of Appeal since the year they were introduced. In light of a political climate which is demanding that communities play a larger role in the criminal justice system amendments have been made to the Crimes (Sentencing Procedure) Act 1999 (NSW). One such amendment has been the creation of a new purpose of sentencing. The Act now states under section 3A(g) that the court must 'recognise the harm done to the victim and to the community'. This has led to suggestion in some recent cases in the Criminal Court of Appeal that it may be time to re-evaluate the leading decision in Previtera which prohibits the court from using victim impact statements made by family members when determining the relevant sentence in homicide cases. This article will evaluate the current position of victim impact statements in homicide cases and examine whether 'recognising community harm' should now involve family members of homicide victims. Further, this will involve a discussion on other implications that interpreting 'harm done to the community' may have on the criminal justice system. Could it lead to other community members making statements to aid the court in their determination of sentence and will this be appropriate?

Introduction

Since the introduction of victim impact statements in 1997 in New South Wales (1) many have discussed the role they play in the criminal justice system and the impact they have on the sentencing process. (2) Whether such victim participation works within a historically offender-based system is subject to debate, which centres on the objectivity of the criminal law, the application of sentencing principles and victims' rights. (3) What is certain, however, is that they are popular with governments across the common law world and are therefore here to stay. (4)

One area in which the use of victim impact statements has remained contentious is in homicide cases. In fact, their use in NSW as part of determining the relevant punishment of the offender is prohibited. (5) Yet, an amendment to the Crimes (Sentencing Procedures) Act 1999 (6) has lead to suggestions, in various recent Criminal Court of Appeal cases, that the Court should re-evaluate its position on this. This article will specifically examine the current law relating to victim impact statements in homicide cases and whether they should be used when determining the sentence for defendants convicted of murder or manslaughter in light of the amendments made to the sentencing purposes under the Act. Section 3A(g) now requires courts to take 'community harm' into consideration. Yet to be explored in any detail by the courts this article will examine the broader question of what 'community' means within the criminal justice system context. This will involve discussion of community as a victim, what community harm is and whether community harm can be quantified. (7)

Generally, the Act provides that a victim of crime can submit a VIS into the court (8), and that this statement may be used to determine punishment. (9) However, the approach taken with respect to cases of homicide is much more narrow.

Section 28(3) of the Act starts by providing a mandatory requirement that a court must 'receive' a victim impact statement (if one has been prepared) from a family victim when the primary victim has died. The court 'must receive and acknowledge its receipt and may make comment on it that the court considers appropriate'. However, the Act goes on to prescribe, under section 28(4), that it '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. …

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