108. A judge involved in sentencing has many matters to take into account. The effect of the crime upon the victim is but one of them, albeit a very important one. At common law, the effect of a crime on a victim may be considered during the sentencing process. This usually means that the seriousness of a crime, which is presumed to (and may) reflect the seriousness of the hurt to the victim, affects the seriousness of punishment.
109. Chief Justice King in [1]The Queen v. Hodby stated:
The learned sentencing judge properly took into account in determining the sentence the effects of the crimes upon the victims and in particular that they had been deprived of the whole or part of their savings.
110. Justice O'Bryan in R. v Mallinder[2] said:
The consequences of a crime for the victim are a relevant circumstance to be taken into consideration when sentencing the offender.
111. The Crimes Act 1914 (Cwth), in sections 16A(2)(d) and (e), requires a sentencer to have regard to the personal circumstances of any victim of an offence, and any injury, loss or damage resulting from an offence respectively.
112. In a discussion on victim impact statements in the Victorian Law Institute Journal for July 1988, reference is made to an article by George E. Burns, who commented that:
[On] one level the impact of the crime on the victim has always been a factor. The specific facts of the crime determine both what charges are brought and what sentence is imposed. Thus, a robbery is not just a 'robbery' - it may range from a relatively minor purse snatching to a brutal assault and the sentence imposed should reflect the particular effect of the crime.
114. It is said that the use of these statements might undermine the sentencing Court's freedom from public pressure and could lead to a possible increase in sentencing disparity.
115. It is also argued that an offender must be given the right to challenge material put forth in a victim impact statement and this would expose the victim to unpleasant cross-examination. Some people argue that the idea of a victim impact statement reverts to times past and revives an ancient notion of revenge contrary to current moves towards a more enlightened sentencing philosophy.
116. Some argue that victims are not in a good position to give a reasoned view of the impact of the crime on them and that really they are seeking revenge. Punishment, they continue, is the reaction of the community through the courts and the community has a wider interest than the victim's revenge.
117. It is also asserted that a victim impact statement would add very little information to that already available to the court and that there would be a danger to a victim's health or welfare in giving such a statement because its presentation might arouse expectations which could not be met or might force the victim to relive the experience with cost of further harm to him or her.
118. The Tasmanian Inter-Departmental Committee on Victims of Crime, which reported in 1989, enumerated the arguments against victim impact statements as follows:
- To allow the victim to become involved in the sentencing process would undermine the fundamental principle of the criminal justice system that the processes of prosecution and punishment are the province of the State acting in the public interest.
- There is concern about the possible effects the introduction of victim impact statements might have upon established sentencing principles. The use of victim impact statements might result in the court according too much weight to the effect upon the victim and thus neglecting other considerations such as the rehabilitation of the offender.
- The most significant objection against victim impact statements is that they would give rise to immense procedural difficulties. It is argued that if such statements are to be placed before the court as evidence upon which it might rely in determining an appropriate sentence, an offender must be afforded an opportunity to challenge material which they contain. In some cases this would involve further cross-examination of the victim and of medical practitioners and psychologists. Not only would this involve additional trauma for the victim, but it would considerably lengthen criminal trials and increase delays in an already over-burdened system.[3]
119. As will become evident from the discussion that follows, the Committee considers that many of these criticisms of victim impact statements have been demonstrated as unfounded by schemes established in jurisdictions in Australia and overseas. The establishment of a suitable scheme in the ACT should minimise potential problems that might otherwise result from the adoption of victim impact statements.
121. VOCAL supported the presentation of a victim impact statement which would ensure that a sentencing judge or magistrate is informed about any physical or emotional harm, or any loss of or damage to property suffered by the victim through or by means of the offence, and any other effects of the offence on the victim.
122. The ACT Adult Corrective Services supported the use of the victim impact statement for a limited group of more serious crimes so long as they contain no victim's statement as to a proper sentence. They considered that it should be voluntary, should not be prepared by the police, should deal with the financial, physical and emotional impact of the crime if the victim wished to address all these issues, must be under the control of the victim as much as possible and must reflect the views of the victim.
123. On the other hand, the Domestic Violence Crisis Service, the Doris Women's Refuge, the Canberra Rape Crisis Centre and Ms Katja Mikhailovich opposed the adoption of victim impact statements, particularly for crimes of rape, incest and domestic violence.
125. In the judgement of the Full Court, the judge at first instance was quoted at some length concerning the course of events before him. The accused had pleaded guilty to the offences. The trial Judge said,
The Crown Prosecutor frankly admitted, when I questioned [her] about it, that she had requested the impact statement from the girl for the purposes of putting some sort of statement together for the use [of] this Court. In my opinion, the procurement of that sort of evidence by the prosecuting authority goes beyond that authority's role and gives the appearance, even if it not be the fact, of an endeavour to exacerbate the consequences of the offences to the detriment of the accused.
Evidence of the impact of offences is, of course, relevant. Its cogency, however, may depend on how it was obtained. I would personally discourage the prosecuting authority from doing this sort of thing, especially when the accused has pleaded guilty in the Magistrates Court and has been committed for sentence, and the evidence is obtained between committal for sentence and appearance for sentence in this Court. ...
The cogency of that sort of evidence, would, of course, be greatly increased if it came from a treating psychiatrist or other psychological expert, or from a counsellor consulted by the child or some other responsible person. I express my concern about that sort of evidence being elicited by the Crown Prosecutor, and I say now that the result of the Crown eliciting evidence in that way makes it difficult for this Court to assess the reliability of the documentary evidence as expressions of the child's emotional trauma. They simply lack cogency and they certainly lack spontaneity.
126. The Full Court said:-
There is no question that increasing public concern about the position of victims of crime in the criminal justice system has been accompanied by repeated instances of judicial recognition that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process: see R v. Webb [1971] V.R. 147, R. v. Dole [1975] V.R. 754, Salt v. Galkowski (1978) 19 S.A.S.R. 130.
However, because in our adversarial system of criminal justice the victim is not directly represented and has no more right to be heard in the sentencing process than in the trial, a difficulty arises as to how information relating to the effect on the victim is to be gathered and presented to the court. That reliable information of that nature should be presented is in the public interest, not only in the interest of the injured victim (or the accused, if the victim has escaped relatively unharmed), since a proper sentence should not be based on a misconception or ignorance of salient facts. There is not necessarily any unfairness or impropriety in the representative of the Crown assisting in this regard. The prosecutor appears in the public interest and has the role of assisting the Court in reaching a fair decision rather than exclusively advocating a particular interest: see Whitehorn v. The Queen (1983) 152 C.L.R. 657, The Queen v. Apostilides (1984) 154 C.L.R. 563.
On the other hand there are objections to the prosecution taking too active a role in the matter of injury to the victim. They are implicit in his Honour's criticism in the present case. One is that where the prosecutorial function is carried out by a Director of Public Prosecutions, the powers of the authority are limited to those conferred by statute and are perhaps not co-extensive with the broad function traditionally accepted as that of the Crown in assisting the Court in the administration of justice. The other objection is that the gathering and presentation of evidence of the effect of the crime on the victim tends to undermine the actual and perceived independence of Counsel for the prosecution by identifying Counsel with the victims. These matters are discussed in a paper by the Hon. C.J. Sumner, 'Victim Participation in the Criminal Justice System' (1987) 20 ANZJ Crim. 195
In order to overcome these difficulties, there have been proposals for and discussion of the use of victim impact statements at the sentencing stage. In this country, as we understand it, it is only in South Australia that there has been legislation requiring such statements. ...
In the absence of statutory provisions for victim impact statements in the Australian Capital Territory, we do not see any impropriety in the Director of Public Prosecutions, or the representatives of the Director, whether acting as Counsel or as solicitor, ensuring that the court has before it sufficient material of a proper kind to enable it to proceed to sentence upon a realistic assessment of the injury to or loss suffered by a victim. It is essential, however, that the material be presented in such a way that the prosecuting authority will not only not be seen to be promoting the interests of the victim at the expense of the interests of justice, but also the reality will be quite otherwise. Vengeance is not to be equated with justice. And the understandable feelings of a victim or a relative of a victim must not be allowed to move the Court beyond the way of justice. For that reason it may be appropriate for the material to be presented other than in the form of direct statements by the victim or persons closely connected with the victim. It would be better that the material be presented through the report of an independent third party, with the caution that the third party must not assume or be seen as assuming the role of an advocate either for or against the victim. In that respect the South Australian procedure whereby a victim impact statement is prepared by the same person who prepares a pre-sentence report might be an appropriate model. However, it is not for this Court, nor perhaps for the Supreme Court, to impose any procedural requirement of that kind for the reason that, apart from policy considerations, there are resource implications.
127. The court concluded that the method of collection and presentation of the material relating to the effect of the offence on the child left it open to the judge to reject that evidence for what he saw as its lack of cogency.
128. The significant features of the passage just quoted seem to the Committee to be:-
- the need for moderation in a victim impact statement;
- the need to ensure that it is not, and cannot be seen as, an attempt to seek vengeance;
- the need for victim impact statements to be balanced. (The Committee does not see this, however, as meaning that something less than the true effects of the crime upon the victim is to be put forward to the court.)
129. Given the developing practice of the DPP in tendering victim impact statements and the comments of the Full Court on this practice, the Committee sees its role as recommending how this practice might best be formalised so as to meet the concerns of the Court and encourage its use in ACT courts.
131. In formulating its recommendations, the Committee has given considerable weight to the Canadian experience. Members of the Committee familiar, at least to some degree, with Canadian culture and particularly its legal culture (and one member has very considerable experience of those cultures) consider that the Canadian and Australian cultures are comparable and that the results of the Canadian research and views expressed are of considerable value to the inquiry being undertaken by the Committee. There is, it is considered, less similarity between United States legal culture and the Australian. The Canadian research into the implementation of victim impact statements is the most comprehensive yet done. Five separate models were tested and evaluated in different Canadian jurisdictions between 1986 and 1990, the findings of those studies being reported in 1990. Descriptions of the five completed projects and of the research methodology are contained in a long extract from Volume 7 of the Final Report of the Task Force, annexed to this report at Appendix 'C'.
- provide an instrument for victims to give information regarding the physical, financial, psychological and social impacts of the offence on them and on their family;
- introduce this information to the court;
- provide direct input into the sentencing process by victims;
- assist the court to arrive at an 'appropriate' sentence by improving both the accuracy and the justice of the sentencing decision.
133. The second set, known as 'indirect purposes', were that the statements would:
- offer victims a means of direct input about the effects of the offence;
- increase victims' willingness to co-operate with the criminal justice system, especially by reporting crimes;
- increase victims' feelings of involvement in the criminal justice process; and
- increase victims' satisfaction with the sentence handed down and with the criminal justice system generally.[5]
134. The Committee believes that the more important purposes to be served by victim impact statements are the 'indirect purposes' and feels that these outcomes would have the greatest positive consequences for victims of crime. A victim reasonably expects to have his or her 'day in court' and this expectation is not satisfied simply by being called to give evidence, which may in itself be a traumatic experience, adding to the victim's sense of injustice and alienation from the criminal justice process. It seems to the Committee that the availability of such statements to the court would enable the victim to give his or her version of the effects of the crime in what would be a reasoned and moderate way. Many victims might prefer not to take the opportunity to make such a statement. However, if they feel it appropriate to do so the opportunity should be given to them unless such a statement would distort the criminal justice process and unjustly detract from the rights of an offender.
- Victims are more likely to complete victim impact statements if they are personally interviewed rather than invited to complete questionnaires sent to them by post;
- It is unlikely that all victims will be contacted in an attempt to have them submit a victim impact statement;
- The reasons victims gave for refusing to participate in the program generally came within the following list:
(a) the victim regarded the offence as too minor to warrant a statement;
(b) the victim was too busy;
(c) the victim wanted to put the incident behind him or her; or
(d) the victim experienced language problems in completing the statement.
- It would be most unlikely that victims would have multiple reasons in common. Women are more likely to complete a statement than men as are those who are better educated.[6]
136. The victims' motives for completing a victim impact statement are varied but the findings in that regard warrant quotation:
Using an open-ended questionnaire format, victims were also asked for their reasons for completing a statement, or what they expected to gain as a result of the statement. Although a variety of reasons and expectations were given, the responses were sufficiently similar to be broadly grouped into three categories. The responses captured in the first category expressed the view that victims wanted to ensure 'justice is done': between 14 per cent to 42 percent of the victims participated for this reason; they also wanted to influence the sentence given. The second category of views was more 'altruistic': between 17 per cent to 47 per cent of the victims indicated that they agreed to participate because they thought that 'it seemed like a good idea and that it was their civic duty'. In the final category, responses were 'deterrence' oriented. Victims wanted to impress upon the offender that their acts were not victimless: between 20 per cent to 35 per cent felt that they should participate because they 'wanted to communicate the impact of the crime to the offender.[7]
138. The British Columbia (Victoria) report favoured a division according to the seriousness of the offence.[8] Although there was a consensus among Crown Counsel that they were more appropriate for major offences, there was less consensus over whether specific offences (for example minor assaults, theft of amounts under $1,000) were appropriate for them. The report recommended that, in selecting victims to make a victim impact statement, it continued to be necessary to define appropriate offences. However, this definition need not exclude minor offence categories, and flexibility and discretion should be built into the selection system.
139. On the other hand, the Toronto report noted that the major criterion applied by police investigators was the impact on the victim.[9] Most of them felt that the results of the crime, not merely the type of offence, should be the overriding factor in using a victim impact statement. The term 'results of the crime' was interpreted as physical consequences or, in some cases, emotional and psychological impacts on the victim. The officers interviewed considered that these impacts must be assessed on an individual basis and that, therefore, officer discretion in the use of victim impact statements was most important. Very few police wanted to see criteria determined beforehand for the types of offences in which statements should be given to victims.
140. The Committee is of the opinion that statements would not generally be appropriate in respect of minor offences even though those minor offences might have had serious impact upon the victims. The Committee adopts this view because of the resource implications of having these statements in respect of all crimes. For example, a particularly vulnerable person, the victim of a minor offence, might suffer grossly deleterious effects from the offence which is in itself very slight as, for example, minor vandalism or trespass without intent to commit any serious offence. Yet it would seem inappropriate that the effects of that offence should be incorporated in a victim impact statement. It would seem much more desirable that the criminal justice process or administrative procedures connected with it should make provision for some suitable means of assisting such a victim. The Committee sees the matter as one for the economical use of available resources provided that use results in assistance of all victims who are in need.
141. The Committee believes that the option to prepare a victim impact statement even in respect of a serious offence, should be the victim's. A failure or refusal to adopt the option should give rise to no comment or adverse inference.
142. It seems unlikely that young children would be able to present a statement concerning the effects of a crime upon them. Yet this inability ought not to prevent the presentation to the Court of the effects of the crime on children. It would seem that the dilemma could be overcome by the evidence of experts skilled in the field who could be relied upon to give accurate evidence of the true state of mind of the child as a result of the offence. Further consideration of this matter appears later in this report.
143. Consideration was given by the Committee to offences that occur between close relations, including spousal assaults and some sexual assaults. It was said in the Toronto report that the fact of the relationship could deter many victims in such cases from giving to the court a statement detailing the results of an offence. The Committee sees no serious difficulty in this area. The victim in such cases acts a gatekeeper. Once the gate is opened and the offence is reported to the appropriate authorities, it seems to the Committee that it is a relatively small step for the victim to make a victim impact statement, which is, in any case, voluntary.
144. The Committee recommends that there should be statutory provision for the tender of a voluntary victim impact statement in all cases of indictable offences against the person, or involving violation of a person's property whether by theft, fraud, robbery or otherwise, which is punishable by imprisonment for five years. The Committee recommends that statements be voluntary and that victims may choose not to take advantage of the right to make such a statement. If experience were to demonstrate this approach to be incorrect, that problem should then be dealt with.
146. The Committee recommends that the VIS be structured so that all necessary information is obtained from the victim. All victims preparing statements should be asked 'core questions'. The South Australian document used for this purpose should form a useful precedent. The questions should not be 'leading questions' and the structure ought not inhibit the victim from providing further information about the effects of the crime.
- the program indicated to victims that the police were interested in, and concerned about, the effects of the crime on them;
- it tended to overcome the complacency that police investigators sometimes develop;
- the program also served to make police officers focus on victims' needs and helped to increase their empathy with the victims; and
- it added to the investigators' understanding of the crime.
148. The interviews suggested that there were also a number of concerns held by the officers concerning the program, outlined below.
- They were concerned that disclosure of the statements to the defence might lead to cross-examination of victims regarding their statements which would further add to the ordeal faced by the victims.
- They also expressed concern at the 10 day time interval allowed for the return of the completed victim impact statement as too short to enable inclusion of the full impact.
- They felt concern that the victim might not feel able to come to terms with the effects of the crime within the time allotted in order to complete the statement accurately.
- Some officers were under the impression that Crown prosecutors were hesitant to use the statements. For this reason they felt the desirability of having feedback on the results of providing the victim impact statements to the Court.
- Officers also were concerned that the statement could be an instrument for retaliation on the part of some victims especially as the victims were not required to verify the statement's content on oath.
149. Alternative methods used for obtaining statements from victims were:-
- mailing the statement to victims for completion and return to the collection point - this method was more likely to be used in respect of property offences;
- taking the statement from the victim over the telephone; and
- having it delivered by the police to the victim for completion at his or her home.
150. The British Columbia scheme also required police officers to prepare the VIS. The officers held interviews with the victims in order to collect the required information, a measure which found favour with most victims:
Although a strong majority of victims interviewed during the evaluation expressed a preference for personal interviews, 1 in 6 would have preferred a questionnaire. This suggests a comprehensive service might better serve the public if victims were given a choice between a mailed questionnaire and personal interview.[10]
151. The Committee agrees with the report's recommendation that an interview approach to the gathering of victim impact information is preferable, but that if a victim refused an interview he or she should be given the option of completing mail-out VIS forms.
152. It was noted in British Columbia that the success of the implementation of a police-based VIS scheme did depend on the training received by the police officers required to prepare the statements.
Analysis of the VISs and supporting documents indicates that the interviewing constables made every effort to play an objective and professional role in the interviews. There were notable differences in the abilities of the interviewers to probe victims for clarifications of items, to organise the points made by the victim, and to provide the context for many of the victims' remarks. These differences - which related strongly to the constables' previous experience and in-service training - point to the importance of adequate and specific training of VIS interviewers in future projects.[11]
153. The British Columbia report recommended that the training given to officers responsible for the preparation of victim impact statements might include elements concerning the role of victims in the justice system, contact procedures, interviewing skills, writing skills, follow-up procedures, and other issues, depending on the background of the trainees and the administrative structure of the program.
154. The report noted that three questions should be asked when deciding which agency should be responsible for preparing statements:
- Which administrative body would be most objective?
- Which administrative body would be credible to all parties?
- Would staff in this administrative body be line staff or new staff specially hired for the VIS project?[12]
155. The British Columbia report recommended that, however the VIS be prepared, the victim should be allowed to see and sign the completed statement. It said 43% of victims who prepared statements for the pilot project said they would prefer to have seen the VIS.
156. The Committee had some difficulty initially with the proposal that preparation of victim impact statements should be done by police officers. Police officers who assisted in the consideration of the many issues involved shared this difficulty. However, consideration of all the material now available, including the present attitude of the Australian Capital Territory component of the Australian Federal Police, has led to the conclusion that the initial victim impact statement should be obtained by a police officer engaged in the investigation of the offence. If his or her experience in the area is insufficient, an officer experienced in investigation of offences of the type in question and who has also had experience or sufficient training in the taking of victim impact statements should prepare the statement. The Committee now considers that the initial taking of the victim impact statements should be a police function.
158. The Committee recommends that as a general rule VIS should be taken at home, although it is not adverse to their being taken at a police station if the victim consents.
160. The Committee takes the view that the appropriate time for taking the statement would be as soon as reasonably possible after the offence, provided the victim has recovered sufficiently from the shock and injury inflicted during the crime to be able to gather his or her thoughts about the event. A follow-up statement would be made shortly before trial, or if the trial is expected to be a long one, shortly before the verdict.
In this regard it is necessary to make some reference to the victim impact statements tendered to the learned sentencing judge. As is the custom these had been prepared by a police officer. They reflected the situation prior to reimbursement and are generally expressed in terms which tend to reflect a possible lack of understanding as to the likely net impact of the offences upon the persons in question. It must be said that a serious weakness in the present system of victim impact statements is that they are not signed or even acknowledged as accurate by the victims concerned, and, at best, reflect the attitude and impression of the police officer preparing them. It would be far preferable for the future for the actual victim or victims to be required to subscribe to such documents as being an accurate reflection of their factual situation. Be that as it may those statements do graphically reveal the significant emotional impact made by the offences upon the persons concerned and, in some instances, a substantial degree of at least short-term hardship inflicted upon them by the conduct of the appellant.
162. The Committee agrees and recommends that the victim be required to sign their VIS as being an accurate reflection of his or her situation.
164. The British Columbia report noted concern regarding the disclosure of the contents of a VIS to defence Counsel. Although it was difficult to determine the extent or frequency of disclosure of statements to defence Counsel, it appeared to the authors that disclosure was not made, contrary to Ministry policy, nor was it routine or systematic. The main reason for this was that a VIS often arrived in the Crown file after routine disclosure of case particulars has been made to defence Counsel. The report noted strong concerns among judges and defence Counsel that the VIS should be disclosed to the defence. The report recommended that the disclosure to the defence Counsel of VIS be made mandatory.
165. Whether the defence should have a statement at the earliest opportunity is also a major issue in Australia. In line with the tendency in Australia to make available to defendants all the material in the hands of the prosecution, the Committee believes victim impact statements should be furnished to the prosecution and defence in the first instance as soon as is reasonably practical after the first (preliminary) VIS is prepared. It is thought that to make it so available would facilitate pre-trial negotiation, a decision as to whether bail should be opposed or not sought and possible appropriate plea-bargaining. In the second instance, the final VIS should be made available to the legal representatives of the parties as soon as a finding of guilt is made or plea of guilty entered. The Committee acknowledges that, although it is preferable that the statements be made available to the defence as soon as reasonably possible after their preparation, this may not always be feasible. In the second instance, for example, it may be that the victim does not wish it to be used, even though it has been prepared. This may come about because the prospect of its use and possible cross-examination on it might cause the victim additional suffering.
167. The British Columbia report revealed that in 66% of the cases where VISs were used by Crown Counsel, the Court was not informed that the source of information being presented was a VIS. In the remaining 34% of cases, Crown Counsel informed the Court the VIS was the source of information, but the VIS was not introduced as an exhibit. A majority of judges and defence Counsel interviewed felt that the Crown should automatically identify the existence of a VIS, although it need not be filed as an exhibit. The report recommended that more overt use be made of the VIS, rather than it being used as an unidentified piece of evidence.
168. The Committee agrees with the recommendation of the British Columbia report that the court should be notified if evidence regarding the effect of the crime on a victim is taken from a victim impact statement.
- the impact was insignificant; and
- oral evidence during the trial had already covered the same material.
170. The British Columbia report noted that during the pilot study Crown Counsel used the VISs for two different purposes. The first was during sentencing. The second, more minor, usage of the VIS was at points other than sentencing. These included use at trial (for example, for examining a victim), for consideration when negotiating with the defence and at the time of bail review. Crown Counsel mentioned the latter two uses very rarely.
171. The Committee agrees with the conclusion of the British Columbia report that the victim should be told about potential non-court uses of the VIS (for example, diversion, probation or parole) at the time of taking the VIS and that fairness to the accused should be an essential consideration at all times. The Committee is of the opinion that the prosecuting Counsel be required to tender a VIS when it is possible to do so, unless the victim no longer wishes the statement to be tendered.
173. The suggestion above at paragraph 136 that VISs might assist the court in arriving at an 'appropriate' sentence by improving both the accuracy and the justice of the sentencing decisions carries with it an implication that sentences may possibly be heavier under a new system. Obviously a court might from time to time be so influenced by the facts appearing in a VIS that it would impose a heavier sentence. It seems to the Committee that if there is any possibility that a sentence might, because of the tender of a VIS, be heavier than would have been the case had none been tendered, the defendant must have the right to cross-examine the maker of the statement.
174. The Committee recommends that the defence Counsel be given the opportunity to cross-examine a victim on his or her VIS as is done with any other material which might adversely affect the offender's interests. Given the supply of the VIS to defence Counsel prior to the hearing, the Committee expects that any difficulties defence Counsel has with the material in the VIS could be resolved prior to the VIS being presented to the court, as is frequently done now with antecedents reports. This might then make that cross-examination of the victim unnecessary. However, the victim should be given the opportunity at any time until tender of the VIS to withdraw it rather than face the possibility of cross-examination upon it.
175. It is understood that the South Australian experience has been that victims are simply not cross-examined about their statements. This is what one would expect if the statements are made and used fairly. In any event, the tariff (the range of penalties imposed in equivalent circumstances) would, in the opinion of the Committee, certainly not increase and the extent of any increase in sentence would be limited by the upper boundary of the tariff. If there were any increase, justly imposed, in a particular case because of the damage done to the victim which may not have been noted by the court but for the statement, the Committee does not see such an increase as unjust or harsh. It would simply make the sentence commensurate with the harm done to the victim and the punishment that ought be inflicted in respect of that harm.
177. The Toronto report considered (in what seems to be an unconvincing argument) that a potential burden on the criminal justice system might arise from the added time Crown prosecutors would devote to dealing with the statements while the case was being prepared. The report noted that the most frequently raised objection was that of the time lapses that could occur if statements became a requirement for sentencing. It was argued that when an offender appears shortly after the offence and pleads guilty it might be impossible to obtain a victim impact statement from the victim unless the judge held the sentencing over to another occasion. Given the backlog of cases, this could then cause a significant delay in the delivery of justice. This argument takes little if any account of the delay before sentence that usually follows arrest for a relatively serious offence for which a plea of guilty is entered.
178. In South Australia, it has been estimated that the preparation of each victim impact statement takes about 1.24 hours of police time. The introduction of statements could conceivably involve extra work for other agencies, such as VOCAL and other welfare and counselling organisations. However, the Committee does not think that the use of VISs would place too great a burden on the criminal justice system, particularly given the benefits which both the victim and the system can achieve from their use.
- the ability to talk with somebody about the offence and its effects;
- the provision of useful information about the case;
- the opportunity to explain to the court the effects of the crime; and
- the opportunity to contact someone in the event of a problem arising.
180. It is significant that in all five projects the majority of victims said that they would agree to participate in the program should the opportunity present itself again. This result also held true for those victims whose cases did not go to court.[14]
181. The level of satisfaction with the criminal justice process most frequently centred on the way the police handled the case, the treatment of the defendant (that is, whether an arrest was made or an appropriate sentence given) and the fairness and sensitivity shown the victim. Generally, victims who felt that their information needs had been met were more satisfied with the overall handling of their cases. This was true for those who made victim impact statements and those who did not. It was also found that there was a slight but consistent increase in positive attitudes toward other participants in the criminal justice system (except defence Counsel) amongst victim impact statement participants. A major difference between those who participated and those who did not was in their attitude toward the police. Those who had taken part in the statements had a more significant positive change of attitude towards the police than those who did not. Those who participated indicated that they would be more likely to report crime in the future than did those who had not participated. Involvement or non-involvement in the program tended to make no difference to the generally negative attitude of the victims towards the sentences imposed.
182. Under the heading 'Impact Issues', the British Columbia report analysed the effect of the implementation of VISs on the attitudes of victims and offenders. These results are significant enough to warrant edited quotation at some length:
The broad objectives of the evaluation were to review the effect of the introduction of the VISs on victim participation in the criminal justice system, victim satisfaction with the process, and on the administration of justice, especially on sentencing.[15]
The Report said:
[T]he differences between baseline victim and VIS victim [were] statistically significant for the following measures:
. in change of attitude towards police from before to after the case (VIS victim change was more positive than baseline victim change);
. in change in belief that the criminal justice system would show an interest in the effect of the crime on the victim (VIS victim change was more positive than baseline victim change);
. in change in belief that the Courts would punish offenders appropriately (both groups of victims expressed overall negative changes, but the VIS victim responses were significantly less negative);
. in change in willingness to report crime (VIS victim change was more positive than baseline victim change).
Furthermore we found that:
. VIS victims expressed clear satisfaction with the VIS program itself, but a significant minority of VIS victims felt that the program was not helpful re providing useful information on their case or in giving the victim someone to contact if they had questions about their case;
. there appears to be potential for offender attitudinal change in approximately one quarter of cases ;
. there were virtually no delays in court processes or extra costs borne by the system other than the immediate costs of the project itself.[16]
Considering the results [set out in the previous paragraph], it is possible to summarise the role and impact in this type VIS program within the overall criminal justice system [as follows]:
[T]he VIS does not alter the criminal justice system or the victim's attitude towards it in any fundamental way. Rather, it helps the victims feel that they have been paid attention to, that the system cares a bit more about them. It may moderate generally negative feelings about sentence, and encourage more willingness to report crime (although stated victim willingness to report their own victimisation was high in any event).[17]
183. One comment made in the report was that: 'It is also interesting to note the steady deterioration of victim knowledge about their cases as it advances through the court system'[18].
184. It is also noted that victims of personal offences (assault of various levels, sexual assaults, and robbery) had consistently higher knowledge levels than victims of property or other offences.
185. The report noted that
... the following patterns were strong across both VIS and baseline samples in the following instances:
(1) Victims who have said that they had been kept adequately informed of their case showed much higher levels of overall case satisfaction and commensurately lower levels of dissatisfaction than victims who said they had not been kept adequately informed.
(2) Victims who felt the sentence was 'about right' showed much higher levels of overall case satisfaction and commensurately lower levels of dissatisfaction than victims who felt the sentence was 'too light'. [19]
186. The report also stated
Two patterns related to victim impact statements which emerged within the VIS groups were:
(1) Victims whose purpose in giving a VIS was ' to help the program' expressed considerably more overall case satisfaction and commensurately less dissatisfaction than victims whose purpose was punitive in nature.
(2) Victims who said they had fears about participating in the VIS program also expressed lower levels of overall case satisfaction and higher levels of dissatisfaction than victims who said they had no fears.
In summary, the researchers felt that the victim impact statement did not loom large in the victim's mind as the primary factor relating to his or her overall case satisfaction. Commenting on the search for other factors they considered that it would not be surprising that the victim's sense about the 'rightness of the sentence' (not necessarily the sentence itself) appears to be strongly related to his or her overall case satisfaction. But how the victim feels about the way he or she was treated can be of major importance as well in relation to satisfaction. Although the VIS itself was not specifically mentioned as a factor in victims feeling sensitively treated, the program itself is at least designed to hear the concerns of victims.[20]
188. As has been earlier indicated in this report, consideration of at least some of the effects of a crime upon the victim has for a long time been an integral part of the sentencing process. Sentence tariffs therefore include an element to provide for the differing effects of crime on victims. The Committee thinks that even though, for example, the psychological effects of a crime on a victim may be more fully detailed than used be the case, it is not to be expected that this will be reflected in a substantial, or any, increase in sentences beyond the range of what might already be expected.
189. One might think that the court would impose heavier sentences when given evidence about the full impact of the crime on the victim. This is because a court when sentencing will not, except in exceptional circumstances, take into account unproven assertions as to the effects of a crime on a victim. The US experience, however, does not seem to bear this out. Some important observations in relation to the impact of VISs on sentencing in the United States were made by Dr Waller[22]:
In Minnesota, victims appear to have been largely ignored in the sentencing guideline system [the so-called 'grid' system], which was introduced in that State to reduce disparity of prison sentences greater than one year. [It appears that] victim impact statements seem to have influenced judges to reduce sentences but not to increase them. [This on the ground that] the severity of the offence is considered to have been taken into account in establishing the 'grid'. Victims are permitted to express an opinion as to the appropriate sentence and to speak at the hearing ...
A New York Crime Victim Board survey of other jurisdictions using victim impact statements concluded that they led to an increase in the use of restitution.
The use of victim impact statements in South Carolina seems to have increased sentences where the victims are surviving family members of slain victims and decreased them where the victim and offender know each other. The dramatic increase in prison population in that State is considered to be attributable to a harsh prosecutorial policy rather than to victim participation in sentencing.[23]
190. As has been noted, it now appears that victim impact statements are tendered fairly frequently by the Director of Public Prosecutions prior to sentencing. Generally victims have expressed themselves as satisfied with the opportunity to place their story before the court and it is not considered that there has been any demonstrable lengthening of sentences because of the tender of the statement. It should be pointed out, however, that some submissions expressed concern that the sentences imposed by the Supreme Court were too lenient.
191. Mr Justice King, Chief Justice of the Supreme Court of South Australia has expressed concern about the intrusion of vengeance:
A major problem confronting the courts in the decades ahead will be the maintenance of a dispassionate and rational attitude to the punishment of crime in the face of prejudice and pressure from sections of the public, stimulated by inflammatory treatment of the subject in the media. There is a tendency on the part of the media, when there is a sentence which is, on the face of it, lenient, to feature angry comments by the victim or members of the victim's family. In that way public feeling is inflamed against the courts and the judges. The victim of a crime is, however, the worst possible judge of what is fair and just treatment of the offender. A person can rarely be a just judge in his own cause. A judge, in passing sentence, must take all factors into account, not merely the need for punishment and deterrence, but also the need for rehabilitation and for a fair and, if appropriate, merciful treatment of those who have transgressed.[24]
192. The Committee takes the view that it would be a matter of deep concern were this report to be used as an argument for increasing sentences or to be seen as advocating in any way that sentences ought to be revised upwards. Undoubtedly there are cases where particular victims consider that the sentences are too lenient. When, however, the reasons for sentence in such cases are analysed it is generally found that the judges or magistrates in question have proceeded to exercise their discretion as to sentence in accordance with well-established principles. The basic principle is protection of the public. This is thought to be achieved by the consideration of the requirements for punishment, particular and general deterrence and rehabilitation. The Committee considers that another principle should be added, namely, that of healing. This report will develop the concept of healing as essential in the criminal law later.
193. The Canadian experience is, however, that very few victims use VISs for vengeful purposes. The British Columbia report noted that the majority of victims do not see the VIS as a tool of retribution, but more as an opportunity to explain their story and/or to achieve ancillary objects or information. Although 97% of the statements contained information on emotional or psychological impacts, only 3 out of the 84 examined contained comments that could be termed 'vengeful'. Preliminary research results from an evaluation of the Montreal pilot project showed very little evidence of revenge-seeking. Dr Irving Waller noted that in California, where victim impact statements have been prepared since 1974, studies seem to suggest that:
- victims prefer to receive restitution rather than have the offender sentenced to prison; and
- victims related to offenders tend to seek mitigated sentences.[25]
194. What one Canadian victimologist expected to result from more widespread use of victim impact statements was more orders restricting certain offenders' movements in areas frequented by their victims and more sanctions designed to make amends for the harm done by the commission of the crime.[26]
195. Even if some victims were to attempt to use VISs for vengeful purposes, the Committee thinks it unlikely that a statement would have such an effect on a judge[27] as to increase the sentence beyond what is presently considered to be an appropriate sentence. Judges are used to dealing with matters that require them to consider whether they might not be too harsh or too lenient because of factors such as the skill of the advocate appearing, the appearance of the parties, the ability of the victim or witnesses called on his or her behalf to give their evidence clearly and articulately, or the circumstances of the offender. The Committee does not think the emotional appeal of a VIS would influence a judge unduly, if at all. Although it does not see use of statements increasing sentences generally, it acknowledges that it has reached this conclusion partly from what appears to be a sound factual basis but also from intuition and experience. It considers, therefore, that the use of VISs (and their affects on sentences) should be evaluated over a period of 12 months. If that evaluation shows an aberrant result, their use should be reconsidered.
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