The use of Victim Impact Statements in a NSW homicide trial

| April 4, 2014

The NSW Opposition Leader John Robertson has proposed changes to legislation that forces courts to consider Victim Impact Statements when sentencing violent offenders. Amber McKinley argues that this raises questions about the value of one life compared to another.

The Issue:

The use of Victim Impact Statements (VIS) in a homicide trial is designed to fully recognise the impact of the harm done to the victim and to the community by the death of the deceased. Although there will be procedural safeguards to ensure that no inferences are drawn if the family of the deceased does not wish to present a VIS, it suggests that there will have to be a standard basis for minimum/maximum sentencing.

But what of those deceased who are not represented by family members, either because they had no family, or unfortunately will not be missed? What of the deceased victim who had an unfortunate life and made lifestyle decisions that impacted his or her value to the community?

There is also the chance that in the eyes of some a difference will develop when recognising the harm done to the community and the harm done to the family of the deceased when someone is murdered. There is a difference, and how is that measured? Prominence? Is it ‘worth’ more when looking at a sentence to murder someone who is very prominent in the community and whose work will be sorely missed by many, versus the life who will be sorely missed by the family? I think that an argument could be made for community loss versus family loss.

The Ramifications:

Should the deceased’s contributions to the community be factored in sentencing? I do not believe that human loss should be measured in this way.

The proposed legislation will be at pains to ensure that such interpretations are not evident, but from a social perspective it can be argued that the media and the legislative arms of power (either then or now) are responding to articulate families who lost their loved one in horrific and senseless circumstances.

These victims were not complaining about the lack of credibility their VIS held in the eyes of the court, but about the weak sentencing from the court. To somehow accentuate an implied ‘power’ that some families may have through a VIS to increase a sentence for murder or manslaughter is intolerable. Sentences for all cases of murder and manslaughter should be more severe than they are now, but changing the status of a VIS is not the way to do this.

Consider this: If the information given by a victim’s family in the VIS could go to increasing the offender’s sentence, then that member will be cross-examined by defence and, potentially, the deceased’s life will be on trial.

Editing the VIS is very frustrating and arduous, as family members want everyone to hear what they have to say (admissible or not). It should not be the family’s role to present facts themselves that may impact upon the sentence – they are not emotionally equipped to handle this, and there could come a time when plea negotiations (murder to manslaughter) won’t happen until the defence see the VIS. Therefore, in future the choice of whether to present a VIS or not will become a moot point, because the community will believe that a VIS will go towards term of sentence, which will compel them to advocate far beyond their role of representation of the deceased.

The Criticism:

It could be seen that there will be a two tiered system of sentencing – those where someone ‘important’ is a homicide victim and those cases where unfortunately there will be no recognised impact in the form of a VIS. I believe that the proposed amendments to the legislation are haphazard and do not reflect the intention that is being ‘sold’.

It is really too early in the life of the bill to make a lot of valuable comments, but there is still no guidance on how a court will take the VIS into account (despite what John Robertson says). As it moves through debate we will get a better idea, although it looks as though it wouldn’t be any more than a discretion that the judge has and then the appellate courts will interpret it as narrowly as they can.

However, even in John Robertson’s reading speech he mentions the Thomas Kelly case in the sense that if the court took the VIS into account, the sentence would be harsher. So it seems clear so far that the intention of the introduced bill is to increase sentence on some par with the value of the loss that is ascribed in the VIS – but that’s not what the proposed amendments do.

From the introductory speech the bill attempts to go some way to seek to address the imbalance between considerations of mitigation for the accused and the objective seriousness of the offence. Unfortunately in our view the proposed amendments to the crimes sentencing and procedure act do not go far enough to address this imbalance, so there will have to be amendments made to the actual legislation to ensure that there is a better balance between the objective circumstances, aggravating circumstances and the subjective circumstances of the accused in mitigating factors under the sentencing sections (21A).

I do not see the bill in the present form giving a clear and consistent structure for the consideration of VIS in sentencing. It is noted:

“The bill proposes four powerful changes to the sentencing laws of this State. First, it will require a judge to consider a victim impact statement when determining a sentence. Secondly, it explicitly clarifies that the purpose of a victim impact statement is to assist the court in determining a sentence. Thirdly, it will overturn existing laws that prohibit courts from considering victim impact statements from family members in homicide cases. In fact, it makes it mandatory for such statements to be considered as part of the sentencing process”

There is no guidance in the proposed amendments. In fact it simply compels a VIS to be received and to be ‘taken into account’. If it is intended to be a reflection in the absolute sentencing, it should be noted as a separate section to 21A (An easy way would be to amend 21A (1)(c) to specifically speak of VIS in homicide matters).

Change needs to occur and amendments made via 21A but this must be done under strict guidance. Our fear is that it will go through in the form it is currently in and it will make no difference in the end, as 21A has not been amended and the sentencing judges and the appellate courts will make sure it is interpreted narrowly.

In the meantime many people will be lead to believe that there is a value on life that can be different for different circumstances.