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University of Technology Sydney Law Research Series |
Last Updated: 16 May 2017
*Pre-publication version – final version published in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts and Local Experiences, Palgrave Macmillan, 2015
VICTIM IMPACT STATEMENTS, SENTENCING AND CONTEMPORARY STANDARDS OF FAIRNESS IN THE COURTROOM
ABSTRACT
Changes to the traditional adversarial sentencing hearing to include victim impact statements (VISs) reflect current community sensibilities and expectations of fairness. Incorporation of the victim in this manner however lacks precedent in the modern adversarial trial and unfair treatment of victims could compromise the integrity of the law and its institutions as well as undermine public confidence in criminal justice (Shapland 2010). Drawing on the findings of a recent qualitative study of victim participation in sentencing hearings in the NSW Supreme Court, this chapter explores the challenges generated by victim participation for sentencing judges who are charged with the conduct of a fair hearing and maintaining the integrity of the process. This chapter concludes with suggested modifications to legal processes in order to assist sentencing courts in common law jurisdictions to provide appropriate space and support for victims as they present their VISs and to ensure that victims are afforded dignity and respect.
INTRODUCTION
The participation of crime victims in sentencing proceedings through victim impact statements (VISs) is a prominent and contentious feature of criminal justice policy in most common law jurisdictions where the legal proceedings are of an adversarial nature. [1] While of course no one is ‘anti-victim’, incorporating a subjective victim voice in the legal proceedings, particularly through VISs read aloud to the court by victims (oral VISs) has proved controversial for many commentators and legal practitioners (Henderson 1985; Hall 1991; Ashworth 1993; Bandes 1996; Sarat 1997; Hoyle et al 1998; Erez 2000; Sanders, et al 2001; Edwards 2004; Kirchengast 2010; Booth 2007; Booth 2012; Logan 2008; Rock 2010; Erez et al 2014).
It seems obvious that incorporating victims and oral VISs in the sentencing process will be challenging for sentencing judges trained in adversarial traditions in common law jurisdictions. Victims are both physically and practically excluded from the adversarial sentencing hearing. Only the prosecution and the defendant are parties to the legal proceedings and party status gives these participants power to identify the issues, present and test the evidence and make submissions as to penalty. An independent and impartial judge manages the proceedings and determines the penalty. Victims are not parties; they are not represented; they are confined to the rear of the courtroom in the public gallery as bystanders, and they have no power in the sentencing hearing.
Legislation has introduced VISs to this established model and their role is far from clear. The functions of VISs are generally articulated in instrumental and/or expressive terms (NSW LRC 1996; Cassell 2009; Erez; Roberts and Manikis 2010; Garland 2001). From an instrumental perspective, VISs are said to be useful sentencing tools that provide information to assist judges to formulate more proportionate and accurate sentences. But many commentators are concerned that using the highly subjective and emotional VISs for this purpose could be inconsistent with the legal goals of sentencing and the values of objectivity and formality that underpin law and the legal proceedings (Ashworth 1993; Henderson 1985; Booth 2007).
In addition or alternatively, the role of VISs is said to be expressive or communicative. Through VISs victims can recount their experiences and express their feelings about the crime to the court, the offender and the wider community (Cassell 2009; Roberts and Erez 2004; Roberts and Erez 2011; Szmania and Gracyalny 2006). According to Erez, the expressive function of VISs is designed to redress the exclusion and marginalisation of victims in the sentencing hearing as well as improve their courtroom experiences (Erez 2004). Opponents argue that the inclusion of VISs in the proceedings, especially oral VISs, is likely to generate inappropriate emotional displays, embarrassment and confrontation in legal proceedings; present an onerous management task for the sentencing judge; and be detrimental to the offender’s entitlement to a fair hearing and the integrity of the proceedings more generally (Schuster and Propen 2010; Rock 2010; Bandes 1996, 2009; Abromovsky 1992; Sarat 1997, Gewitz 1996; Arrigo and Williams 2003).
Shifts in community sensibilities however have generated changes to community standards and expectations of fairness in the courtroom (Spigelman 2004; R v Dietrich [1992] HCA 57; (1992) 177 CLR 292). Shapland argues that failure to accommodate the interests and concerns of victims in a manner that maintains public confidence in the administration of justice can threaten the integrity of the legal proceedings (Shapland 2010; see also Shapland and Hall 2010 and Garkawe 1994). A significant factor said to be undermining public confidence in the current criminal justice system is the poor treatment of victims and their exclusion from criminal justice processes (Shapland and Hall 2010, p. 188). In the context of sentencing, poor treatment of victims could compromise the legitimacy of the process and generate public disorder (Shapland 2010, p. 365). Research indicates that the way victims are treated in the courtroom and especially their experience of presenting their VISs to the court has a significant bearing on the perceived fairness of the proceedings and victim satisfaction with the VISs more generally (Meredith and Paquette 2001; Victim Support Agency 2009; Rock 2010).
The Victorian case of Borthwick [2010] VSC 613 illustrates these tensions (Iaria 2010; ABC Radio National 2011; Booth 2011). Borthwick was convicted of manslaughter. At the sentencing hearing, the defence objected to VISs submitted by members of the deceased’s family on the basis that much of the content was highly prejudicial, inflammatory and inadmissible. According to media reports, the court then spent some 90 minutes reviewing these objections, editing and deleting ‘inadmissible’ material in the VISs in open court. The family victims silent during this process were furious and distressed when they were given amended versions of their statements to read to the court. The deceased’s sister tore her VIS in two and ‘stormed out of the courtroom in tears’ (Iara 2010); later family members gave extensive media interviews describing their distress and anger at the perceived unfairness of their treatment in the courtroom (ABC Radio National 2011; Booth 2011).
Garland argues that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide” and our sense of how things work needs to be clarified (2001, p. 4-5). In this chapter I draw from my recent study of victim participation in the sentencing of homicide offenders in the NSW Supreme Court (Booth 2012) to consider how sentencing judges in common law jurisdictions can respond to victim interests in the courtroom in a manner designed to enhance the fairness of the proceedings for victims while not jeopardising the offender’s entitlement to a fair hearing. This chapter is divided into three parts. Part I provides an overview of the task of the sentencing judge in a contemporary context. It will outline shifts in approaches to judging from the traditional legalistic model to emerging restorative and therapeutic approaches. The requirement of fairness is a core component of contemporary criminal justice and this part will also explore what contemporary standards of fairness require in relation to the treatment of victims in the courtroom. Analysis of key findings of my study is the subject of part II and provides the foundation for the proposals put forward in the next section. In part III, I suggest ways in which sentencing judges in common law jurisdictions can enhance the treatment of victims in courtroom processes associated with oral VISs. These suggestions are designed to create more sensitive space in which victims present their statements as well as promote a more inclusive approach to managing victim participation.
PART I: JUDGING IN A CONTEMPORARY CONTEXT
Approaches to Judging
Judges are responsible for upholding public confidence in the administration of justice and are charged with conducting a fair hearing from the perspective of not only the parties involved but also the wider community (Spigelman 2004). Common law principles and ethical guidelines guide judicial conduct (Roach Anleu and Mack 2005). In accordance with adversarial traditions, courtroom interaction in superior courts has been structured by formality, rituals, technical legal rules and the concepts of rationality and reason (McBarnett 1981; Tait 2001). ‘Courts experience constant transformation’ however and as a consequence the administration of justice ‘at any given historical moment’ is ‘dependent on the societal context’. (Jeffries 2002, p. 1; see also Doak 2008 and Kirchengast 2011) So as to maintain public confidence in the administration of justice it is important that courts sustain connection with social change and societal expectations. In response to widespread dissatisfaction with the justice system, recent changes in approaches to “law and lawyering” (Daicoff 2006, p. 1) have been well documented and according to Freiberg depicting our current justice system as ‘adversarial’ is ‘becoming less accurate descriptively and less desirable normatively.’ (Freiberg 2007, p. 207)
During the last two to three decades, shifts to more therapeutic and restorative approaches to the law and its institutions have emerged (Daicoff 2006; King et al 2009). Therapeutic justice is not so much a theory as a perspective or lens through which to observe the operation and impact of the law (King 2003, Wexler and Winick 1996, King et al 2009). Broadly, a therapeutic approach is one that is concerned with the impact of laws, legal procedures, legal actors and legal institutions on the physical and psychological well-being of those who are involved in legal processes. Related research has generally focused on improving the operation of the law and the legal environment to maximise the law’s therapeutic value and generate law reform (Wexler and Winick 1996; Goldberg 2005; King et al 2009). Although much of the work in this area has revolved around the impact of the law on the well-being of the defendant in the context of problem-solving courts or tribunals and/or dealing with the causes of crime (Goldberg 2005), the core values of therapeutic justice – voice, validation, respect and self-determination – are universal to all who are affected by the law, including victims (King 2008).
Therapeutic justice has had a significant impact on the judicial landscape. A therapeutic approach to judging does not require judges to act as therapists; rather it requires judges to be aware of and seek to reduce the potential anti-therapeutic or detrimental effects of legal proceedings on participants. Canadian Judge Susan Goldberg argues that following such an approach, judges are interested rather than dispassionate; engage in open communication where stories are heard rather than limiting communication; engage in direct dialogue with parties rather than through the lawyers; are perceptive rather than impervious to emotional nuances; and conduct proceedings with less emphasis on formality and more focus on the concept of ‘inclusiveness’ (Goldberg 2005, p. 4). As such, ‘though it is not social work, therapeutic judging requires a greater commitment of emotional energy than traditional judging’ (Frieberg 2007, p.217). While it is said that this shift to a more therapeutic approach has led judges to consider how they can better treat those in the courtroom ‘with courtesy, respect and dignity’ (King 2003, p.172) some judges and legal practitioners are cautious about the inherent challenge to the traditional passive role of the judge in the courtroom and concerned about the lack of appropriate training (Frieberg 2007, p. 217).
Restorative justice has also had a significant impact on law and legal processes. While a precise definition of restorative justice is elusive (Stang and Braithwaite 2001, p.2), for the purposes of this research it is conceived broadly in terms of process, values, aims and outcomes, an umbrella under which a variety of practices and processes sit (Braithwaite and Strang 2001; Strang 2002; Shapland et al 2006; Dignan 2007; Walklate 2007b; Hoyle 2010). The essence of restorative justice is the recognition that the key stakeholders in a criminal matter are the offender, the victim and the community. A restorative justice initiative focuses on healing and responsibility in the aftermath of the offence. Restorative values include: fairness, restoration/healing, inclusivity, collaboration, respect, dignity, support, safety, democracy, empowerment, accountability, responsibility and reparation (Strang 2002; Dignan 2007; Hoyle 2010). In the context of the sentencing hearing, victim impact statements reflect restorative values and aims.
Alongside these reflective changes to ‘law and lawyering’, more prosaic considerations of managerial justice and the impact of consumerism have transformed the justice system into a ‘service to be measured and consumed’ (Ryan 2003, p. 131). In such a ‘market-driven’ atmosphere, Jeffries argues that the public has been able to make ‘increasing demands of the court’ and that the role of the court is ‘being increasingly judged in terms of service quality and its responsiveness to the news and expectations of those involved in the proceedings as well as the wider community’ (Jeffries 2002, p. 9-10). Consequently, courts have been obliged to address consumer needs and as a result, better court buildings have been built, facilities improved, more information made available to court users and training provided for front line staff (Jeffries 2002, p. 10).
Although the degree to which these shifts have been embraced in the judging landscape varies, at the very least, such changes in thinking have led to a greater awareness of the impact of law and legal processes on all who become involved in the courtroom processes (King 2003; King 2008).
The requirement of Fairness
Much of the reform of substantive criminal laws and procedure over the past 150 years has been a function of the elevation of ‘fairness’ as a core principle of the modern criminal trial and a reflection of its dynamic nature (Spigelman 2004). In the criminal justice context, issues of fairness have generally been addressed in terms of the defendant’s entitlements and a fundamental element of our current criminal justice system is ‘that a person should not be convicted of an offence save after a fair trial according to law’ (Gaudron J in Dietrich [1992] HCA 57; (1992) 177 CLR 292, 362). With regard to sentencing, particular legal principles have emerged to protect the interests of the offender during the hearing including entitlements to legal representation, to address the court, to challenge the case against him/her, to be sentenced justly and according to law and be judged by an independent and impartial tribunal (Edwards 2009, p. 299). Together with these specific safeguards, there is also a more general requirement that the sentencing hearing be conducted according to the ‘requirement of fairness’.
The trial is a dynamic institution of social power that is adaptive to changing social needs and conditions (Doak 2008; Kirchengast 2011). Consequently, laws and court procedures adapt to and reflect changing community standards and contemporary expectations of fairness (Spigelman 2004; R v Dietrich [1992] HCA 57; (1992) 177 CLR 292). Legislative changes to established sentencing practices through the introduction of VISs, particularly oral VISs, reflect such changing sensibilities and expectations of victim involvement in sentencing processes. As originally instituted, VISs were written statements submitted to the sentencing court thereby allowing victims to express their feelings to the sentencing judge; in most jurisdictions, these statements were not read aloud to the court. In the last decade however several common law legislatures including Australian jurisdictions, New Zealand, the UK and Canada, have extended victims’ entitlements to allow victims, or their representatives, to read their statements aloud to the court. By such oral VISs, victims are made visible in the sentencing hearing and they have the opportunity to communicate to not only the judge but also the offender and the wider community.
Garkawe argues that in exercising their legal entitlement to submit VISs, victims have acquired interests in the proceedings that could be ‘substantially affected’ by the handling of their statements in the courtroom (1994, p. 603). Media reports of angry, distressed victims who perceive unfair treatment and re-victimisation by the law and its agents in the courtroom such as occurred in Borthwick are the stuff of political nightmare.
Victim participation through VISs is novel in the modern sentencing hearing and a major concern is that being responsive to the interests of victims in the sentencing hearing will occur at the expense of the offender’s entitlements. Particularly problematic from the offender’s perspective is the threat to the impartiality of the sentencing judge, the questionable probative value of VISs that contain material prejudicial or inflammatory to the interests of the offender and the practical difficulties inherent in challenging VISs (Bandes 1996; Edwards 2009; Logan 2008).
Thus an issue for contemporary sentencing judges is to determine how to be responsive to contemporary standards of fairness in relation to the interests of the victim without detracting from the offender’s entitlements. Drawing from the findings of my study discussed further in the next section, it is argued that ‘procedural justice’ provides the key. Essentially, procedural justice is about fairness and research has shown that participants in decision-making processes are more affected by the quality of procedures by which decisions are made than the outcomes (Lind and Tyler 1988; Tyler 2003; Mack and Roach Anleu 2010). The procedural fairness of a given decision-making process can be assessed according to both the quality of the decision-making procedure and the quality of the inter-personal treatment during that procedure (Tyler 2003). A fair decision-making procedure involves the use of objective information, consistent, neutral decision-making and provision for those involved to present their case i.e. have a voice in the hearing (Tyler 2003, p. 298). The quality of inter-personal treatment reflects a person’s standing and status and is measured according to the degree to which people are treated with dignity and respect and the extent to which their rights and concerns acknowledged (Tyler 2003, p. 298).
Lind and Tyler argue that the opportunity to speak and put forward one’s views is a significant feature of the fairness of the decision making procedure. Having an opportunity to submit a VIS in the sentencing hearing and thus be heard as to how they have been affected by the crime can be regarded as ‘a potent factor in the experience of procedural justice’ (Lind and Tyler 1988, p. 101). Nonetheless, while a legislative right to submit a VIS might create an image of a procedurally fair process, it is contended that the treatment of the victim in the courtroom is also crucial to that victim’s assessment of the fairness of the procedure and also to that victim’s experience of fairness in the legal proceedings (Wemmers 1998, p. 74). Fair procedures can indicate respect and value for the victims whereas unfair procedures indicate marginalisation or exclusion from the hearing (Murphy and Tyler 2008, p. 653). Recent research has indicated that perceptions of procedural injustice can lead a person to experience negative emotions and affect the degree to which they comply with the decisions and directions of the court (Murphy and Tyler 2008).
PART II: THE STUDY
My study was designed to explore the participation of a discrete group of crime victims - the family of the deceased victim, or ‘family victims’ - in the sentencing of homicide (murder or manslaughter) offenders in the NSW Supreme Court. Like other common law jurisdictions, family victims in NSW are entitled under legislation (the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA)), to submit a written VIS to the sentencing hearing and also read their statements aloud to the sentencing court. There is no prescribed VIS form and nor is there an agency designated to prepare VISs on behalf of the deceased’s family. Section 26 of the CSPA limits the content of the statement to the impact of the deceased’s death on the family. In contrast to other common law jurisdictions however, when sentencing homicide offenders (Kirchengast 2011; Roberts and Manikis 2010) although a NSW sentencing court must receive a VIS properly submitted by a family victim, the court must not take account of that VIS in the determination of penalty “unless it considers it appropriate to do so”.[2] The NSW Supreme Court has taken the view that it is not appropriate to take account of VISs from family victims because the resulting penalty might reflect not the culpability of the offender but instead the value and worthiness of the deceased person. The more valuable and worthy the deceased, the greater the impact of the death on the deceased’s family, the greater the harm caused by the offence and, the greater the penalty imposed; such a result would be inconsistent with fairness and equality before the law (R v Previtera (1997) 94 A Crim R 76).
A key object of this study was to produce a rich and rounded picture of victim participation in the sentencing of homicide offenders and in doing so, investigate the presentation of VISs in the courtroom. Data was gathered through the observation of 18 sentencing hearings of homicide offenders in the NSW Supreme Court and semi-structured interviews with 14 family victims; a grounded theory model using a constant, comparative approach was adopted as a basis for analysis of this data. (Charmaz 2006). To further enrich the picture of what was ‘told’ in the VISs and the ‘telling’ of those statements in the courtroom, I analysed the content and performance of 24 VISs read aloud using narrative analysis techniques (Reissman 2008; Gubrium and Hostein 2009). The aim of this analysis was to gain greater insight into the presentation of oral VISs and explore in detail the ‘ritual’ and impact of the performance in the courtroom with particular reference to interactional ground rules and behaviour norms.
The hearings were observed in the NSW Supreme Court between July 2007 and
December 2008. Of the 18 hearings, seven offenders had been
convicted of murder,
10 offenders had been convicted of manslaughter and one offender had been
convicted of being an accessory after
the fact to murder. A total of 38 VISs
were received by the courts in these hearings of which 30 were read aloud. The
remaining VISs
were submitted in writing only in six matters; in three of those
cases the judge took the time to read the written VISs while sitting
on the
bench while in the remaining matters, the VISs were put to one side with the
rest of the written material that had been tendered
presumably to be read later
when the judge was off the bench. Observations were recorded in field notes and
transcribed within a
few hours of the hearing. These notes were supplemented
with digital copies of the transcripts of 16 of the 18 hearings and 24 of
the 30
VISs read aloud in those hearings.
Fourteen family victims from 14 discrete
cases were interviewed between April 2007 and October 2008. Twelve of the 14
interview participants
were recruited through the Homicide Victims Support Group
(HVSG). The NSW Police and HVSG have a memorandum of understanding whereby,
in
the case of homicide, the deceased’s family members are put in touch with
the HVSG and provided with support and assistance
as required. Although there
is bias inherent in becoming a member of a victim support group, given the
memorandum of understanding
with the NSW police, the HVSG was the first port of
call for most family victims in NSW and it maintains a large membership with
whom it keeps in regular contact. Furthermore, in at least six cases observed,
the families were supported by counsellors from the
HVSG. Thus, a recruitment
strategy through the HVSG promised to reach a wide range of family victims. Of
the remaining two participants,
one contacted me after reading my article about
family victim participation in the sentencing process published in the NSW
Law Society Journal (Booth 2007b) and the other was recruited through
another victim support group, Homicide Survivors Support after Murder.
An important caveat is that as a small in-depth study of victim participation in homicide sentencing in the NSW Supreme Court, the extent to which the results can be considered to be of more general application is limited. The study however is not intended to be representative of victim participation in the sentencing of homicide offenders more generally; rather it is designed to illuminate the nature and dynamics of participation of family victims in select sentencing hearings. The findings from this group of victims nevertheless highlight issues that are relevant to sentencing in all common law jurisdictions.
Findings and Analysis
Important findings related to the impact of oral VISs on legal proceedings and the manner in which the court responded to the interests of victims in particular situations. In light of the concerns outlined above, perhaps the most striking finding was that although the subjective and emotional nature of the VISs and the distress and/or anger expressed by victims as they read their statements undoubtedly increased the emotional tension in the courtrooms, the hearings were not disrupted (Booth 2012) even in two matters where the defence successfully objected to VISs. Indeed all but one hearing proceeded with dignity and formality. In this exceptional matter, brothers of the deceased cried and raised their voices at times as they read their VISs. Later when they were seated in the public gallery, two of the brothers shouted at the offender several times as he was giving evidence and they were ejected from the courtroom by police officers. This ’flooding out’ of emotions by the family victims did create a disturbance but the judge maintained control and the proceedings continued in an orderly manner. While many victims did express anger towards the offender and the crime as well as legal constraints on what could be said in their statements, no victims were observed to express anger at their treatment in the legal proceedings nor am I aware of evidence of later complaints to the media.
As I have argued elsewhere (Booth 2012) family victims were ‘cooled out’ by various processes before, during and after the hearing so as to manage and contain the emotional tension in the courtroom as well as help victims present their VISs. Before the hearing, the prosecution prepared victims for the sentencing hearing and worked with them to ensure that the VISs complied with legal requirements and so prevent or reduce the rejection of VISs in the courtroom. Under NSW law, VISs should not contain ‘offensive, threatening, intimidating or harassing’ material (reg 10(6) Crimes (Sentencing Procedure) Regulation 2010) and the content of the statements is limited to the impact of the deceased’s death on the deceased’s family. During the hearing, aside from two cases discussed further below, there was no legal debate regarding the admissibility of the VISs; judges also afforded victims dignity and respect as they presented their statements through a range of strategies including demonstrations of empathy and providing explanations of various stages of the process. After the hearing, judges used their sentencing judgments to comment on the VISs thereby acknowledging and validating the experiences of family victims.
The events in Borthwick provide an example of what might occur if victims are not successfully ‘cooled out’. In that case, the prosecution had not ‘vetted’ the VISs before the hearing and the statements tendered in court contained inadmissible material including highly prejudicial allegations that the offender had engaged in criminal conduct with which he had not been charged. During later interviews, the family victims said that they did not know that the offender could object to their VISs and/or that the court could reject or amend their statements. Furthermore, at no stage did the judge explain what was happening to their statements (Booth 2011).
Given the perceived disjuncture between the legal process and family victims, the sentencing hearing is a setting in which cooling out processes can assist victims to cope with their distress, defuse or reduce victims’ anger and/or resentment, and help them exercise their entitlement to present their VIS (Booth 2012). Negative emotions associated with grief, disappointment and resentment could ‘flood out’, impede the orderly process of the legal proceedings, threaten the dignity and fairness of the hearing and undermine public confidence in the administration of criminal justice. An important component of the management of victim participation in the hearings observed was the quality of the inter-personal treatment of victims by many of the sentencing judges that revealed sensitivity to particular interests and concerns of the victims, a feature lacking in Borthwick (Booth 2012). Particular features of this treatment will be discussed further in making recommendations in the next section.
The observation fieldwork also raised issues associated with the integration of victims and the VISs in the sentencing hearing more generally. Joh’s description of VISs as “occupying a strange and awkward presence in a sentencing proceeding” (2000, p. 37) seemed especially apt as ‘space’ for victims in the process - whether it be the place from where they read their statements or the stage in the hearing where the statements were presented - was marked by some ambiguity (Edwards 2004). An important task for the sentencing judge is to ensure that victims have appropriate ‘space’ in which to exercise their entitlement to subject VISs but in the hearings observed, there appeared to be no designated place in the courtroom from which a family victim was to read their statement and judicial practices varied. Most victims read their statements from a seated position but in that case where there was some disturbance described above, the victims were made to stand beside the bar table to read their VISs to the court.
Victim participation in the hearings was kept quite separate from the remainder of the proceedings. Victim impact statements were dealt with first before moving to the substantive issues regarding sentence. The content of the statements was unrelated to matters that were discussed otherwise during the proceedings and, in most cases, were not referred to again in the hearing. It was my impression that the court, in dealing with VISs first, endeavoured to get the VISs ‘out of the way’ so that the real, legal, business of the hearing could proceed. In fact, on most occasions, immediately the victim had finished reading his or her statement and often even before the victim had resumed his or her seat in the public gallery, the court continued with the hearing straightaway. Another striking feature was that despite the evident distress of other people in the public gallery, on almost all occasions no time was provided for those distressed to ‘re-group’ and recover their composure .
In following part, I suggest modifications to processes in the courtroom that could enhance the fairness of the proceedings from the perspective of the victim without detracting from the offender’s entitlements or the integrity of the hearing more generally.
PART III: RECOMMENDATIONS
The inclusion of victims and their VISs in sentencing modifies the adversarial sentencing hearing and reflects shifts in community sensibilities and expectations of fairness in legal proceedings. Fairness to victims in this context however is more than the entitlement to submit a VIS; fairness involves meeting a range of procedural conditions, including being: treated with dignity; kept informed and consulted where appropriate; and being an engaged participant with due recognition by the court.
If a victim elects to submit a VIS the task of the judge is to provide the:
forum in which [they] can make a public statement in words of their own
choosing, in order to have the emotional catharsis of ensuring
that their grief
and loss have not been either ignored altogether, or expressed in what they see
as an inadequate way (Sully J in R v FD; R v JD (2006) 160 A Crim
R 392414).
Creating such a forum represents a therapeutic shift
for the sentencing judge although judges are not required to act as therapists;
the law is not designed to assist victims to achieve particular emotional
states. Rather a therapeutic approach in this context is
one that requires a
judge to be aware of, and responsive to, the potential anti-therapeutic effects
of legal processes on victims
in the courtroom. The aim of the recommendations
below is two-fold: to heighten judicial awareness of the potential
anti-therapeutic
effects of particular processes on victims’ experiences
presenting their VISs and to enhance dignity and respect afforded to
victims in
the courtroom more generally. Not only will victims’ experience of
procedural justice be improved but conflict and
tension arising from victim
participation could be reduced.
The recommendations that follow are
categorised under two broad headings. The first, integrating oral VISs in the
hearing, relates
to issues of space and time. ‘Space’ refers to the
position from which the victim reads their statement and also support
that might
be provided to the victim to enable them to use this space. The issue of
‘time’ refers to the period allocated
to VISs in the hearing. The
second category, dealing with challenges to VISs considers issues relating to
objections and amendment
of VISs by the court.
Integrating oral victim
impact statements in the proceedings
Two significant aspects of space
are relevant to the interests of the victim – the place in the courtroom
from which victims
read their statement and protections and/or support provided
to victims to help them take advantage of their entitlement. As already
noted,
my study found that there was no designated space in the courtroom from which
the family victim was to read his or her statement.
Most victims were directed
to read their VISs to the court from a seated position in either the witness box
or the jury space; from
either position they could look out into the court and
the public gallery, access water and tissues as needed and be moderately
comfortable
while they read their statement. In two matters however, the judge
directed the victims to stand near the bar table facing the judge;
these victims
stood with their backs to the public gallery (and other family members and/or
supporters), without access to support
such as water and/or tissues and no place
to lay their statements. The presentation of their VISs in these circumstances
was clearly
difficult for these two victims.
The provision of a
comfortable space for victims in the body of the court as they read their
statements does not detract from the
offender’s entitlement to a fair
hearing. Victims should be given the option to be seated while they read their
statement to
the court. Not surprisingly; in the matters observed most victims
cried as they spoke, used tissues and drank water. For those victims
who stood
while they read their statements, it was difficult for them to hold their
statements steady and also wipe their tears or
access water. Given the nature of
a VIS, being forced to stand makes a difficult task that much more arduous and
adds an unnecessary
burden to the victim.
Another issue for the judge to
consider in choosing the appropriate space is whether that position enables
victims to look out into
the courtroom. An important feature of a VIS is said to
be its potential communicative capacity (Erez and Roberts 2004; Erez and
Roberts
2010). Through their statements, victims have the opportunity to talk about
their experiences and speak to the judge, the
court, the offender and/or the
wider community if they wish (Erez and Roberts 2004; Roberts and Erez 2010;
Szmania and Gracyalny
2006). It is important that judges respond to this victim
interest by establishing a space for victims that could enhance the
communicative
capacities of VISs.
Sentencing courts could also consider
whether in the circumstances it is appropriate to make special arrangements to
assist the victim
present his or her statement. In one hearing observed, a
family victim tried to walk in front of the bar table to reach the witness
box
in order to read her statement. It seemed that she took this route in order to
avoid walking close to the offender in the dock.
Rules of procedure dictate
however that no one walks in front of the bar table while the court is in
session. Court officers practically
tackled her to avoid such a breach of
protocol and she was then forced to walk behind and close to the offender. In
these circumstances,
a more sensitive response to the interests of the victim
would have been to allow her give the offender a wider berth and walk in
front
of the bar table.
Indeed, it is not difficult to envisage other
situations such as sexual assault matters where a victim might need added
support so
that he or she can exercise their entitlement to read their statement
aloud to the court. In those circumstances the court could
consider making
special arrangements to provide assistance. Legislation in most Australian
jurisdictions now allows eligible victims
to read their VIS to the court from
another place via some form of audio-visual link. For instance section 30A(3) of
the NSW CSPA provides:
If the proceedings for the offence concerned are proceedings in which the victim to who the victim impact statement relates is entitled to give evidence by means of closed-circuit television arrangements, the victim is also entitled to read out the statement in accordance with those closed-circuit television arrangements.
Legislation in Victoria[3] and
Queensland[4] has gone further and
both jurisdictions set out alternative arrangements to support victims to read
their statements aloud to the
court. These arrangements include:
An
application for such alternative arrangements could come from the victim and/or
prosecution or simply on the motion of the court.
There is no reason to suppose
that such alternative arrangements could detract from the offender’s
entitlement to a fair hearing.
The offender could still challenge the VISs if
appropriate and subject to the law, victims could be cross examined on their
statement.
With regard to time there are two aspects worth noting – the time allocated to presentation of VISs and the court’s ‘attention span’. Alongside reflective shifts in approaches to legal processes, more prosaic considerations of managerial justice have made increasing demands on the court in terms of efficiency and courts are under pressure to deal with matters as rapidly as possible. An important and positive feature of the hearings observed was that though several VISs were lengthy, or presentations were delayed by the victim’s distress, no family victims were hurried to finish reading their statements. On one occasion due to the victim’s distress as he read his statement the judge adjourned the matter briefly to enable the distressed family victim to recover his composure, thought this was unusual. While the presentation of oral VISs might take some time, it is important that victims are not restricted in the time available to them.
A less positive feature of the hearings observed was the court’s short
‘time span’ allocated to VISs. Oral VISs
differ from other oral
testimony in that victims do not present their statements in the traditional
question and answer format. Instead
victims read their written statements aloud
to the court in an uninterrupted narrative or monologue. Not surprisingly, many
family
victims exhibited distress – shedding tears, holding their VISs
with trembling hands and speaking with quavering voices. As
already noted in the
hearings observed, immediately the VISs were completed, the court continued with
other business, often even
before the family victim had resumed his or her seat
in the public gallery and certainly without any respite for those family victims
who were distressed after the VISs were read. It is important that courts
recognise the inclusion of the victims in the hearings
by affording them dignity
and respect. Thus a more appropriate response would be to give the victims time
to resume their place in
the public gallery and perhaps even adjourn the matter
for a short period to allow the victim and his or family to regain their
composure.
Dealing with challenges to VISs
It is evident that
legal challenges to VISs have the potential to be stressful for victims. In
Borthwick the victims were frustrated and angered not only because
sections of their VISs were changed but also because they felt that they
were
not treated fairly in the process (ABC Radio Law Report 2011; Booth
2011). In particular the victims complained that:
- The defence did not explain the substance of their objections nor articulate which were the offending sections of the statements;
- The sentencing judge did not explain to the victims what was happening to their VISs;
- The court spent 90 mins reviewing and editing their statements but the victims were not consulted during this process;
- They were then given the edited versions of their statements and told that was the only version that could read to the court;
- No explanation in relation to what was deleted or the final edited versions was forthcoming from the court to the victims.
The victims
were both physically and practically excluded from the process of dealing with
their VISs. Following widespread media
attention, the Victorian Supreme Court
reviewed the handling of VISs in the sentencing court and a new practice
direction commenced
in May 2011. The aim of this direction is to prepare future
victims for potential objections but given the nature of the complaints
of the
deceased’s family in Borthwick, it is striking that the practice
direction does not address the other issues raised, particularly the treatment
of the victims
in the courtroom.
Objections to VISs were made in two
hearings observed and dealt with in a manner that was inclusive of the interests
and concerns
of the victims. In the first matter, the primary objection related
to whether the victims were eligible to submit VISs under the
legislation; in
the second matter objections were concerned with the admissibility of some of
the content of the statements. In both
cases (as in Borthwick)
neither the defence nor the judge explained the nature of the objections to
the court. However after upholding the objection (and
unlike Borthwick)
the sentencing judges took time to explain the ruling. In the first matter, the
VISs were rejected in their entirety because the
offence was not one where the
victims were eligible under the law to submit a VIS. The judge did not simply
reject the VISs and move
on to the next issue however. Instead he took time to
explain his ruling because he said he wanted to ensure that the deceased’s
‘family understood’ that they were prevented from submitting their
VISs ‘because of the law and not because of
anything they have
written’. This judge did not speak to the victims directly but in
addressing the court generally, the victims
would hear this explanation in the
public gallery; it was evident that the judge intended the victims to hear and
understand his
explanation.
The second matter was a high profile case and
the very small courtroom was crowded with friends and supporters of the offender
as
well as journalists. In similar fashion to Borthwick, the defence
submitted the VISs to the court with the offending sections highlighted; the
editing process involved only the judge
and the lawyers. There was certainly
potential for the family victims to have been humiliated and angered at the
public rejection
of their personal statements and could have generated similar
tension and conflict as occurred in Borthwick. While the judge did not
consult with the victims during the editing process, once finished he did
explain the law and his reasoning
clearly and at length to the court. Of
particular note was the fact that he emphasised that the decision to delete
sections of the
VISs was neither personal nor a reflection on the victims. The
judge said to the first victim: ‘It’s not a subjective
criticism of
you Ms [x] but it’s a matter we must do according to law and according to
the regulations in respect of victim
impact statements’. He also sought to
reassure the victims when they read their statements. When the first victim came
forward
to read her VIS, the judge addressed her directly and told her that the
opportunity to read her VIS “was not wasted”
because being unable to
read the highlighted sections “wouldn’t matter very much to the
impact of what you say”
Certainly with regard to the content of the
statements, the interests of the offender and the victims conflicted. On the one
hand,
the victims wanted their statements to remain unchanged, as a personal
expression of their thoughts and feelings; on the other hand,
the offenders
wanted to exclude inadmissible material that might be prejudicial and adversely
impact on the penalty imposed. According
to the rules of fairness, the offender
is entitled to challenge irrelevant or prejudicial matters that might be
included in VISs
and if successful, that material will be excluded.
However it is argued that because victims are entitled to submit a VIS
and this entitlement will be affected by objections, victims
have an interest in
being afforded dignity and respect in the process. And the court can be
responsive to that interest without derogating
from the offenders’
entitlement to a fair hearing. Perhaps most importantly, there is no need for
the court to conduct proceedings
as if the victims are not present. I am not
suggesting that the court should consult with victims in relation to the
appropriateness
of or ruling on defence objections. That enquiry is about the
law and victims are not parties to the hearing. Nonetheless, the sentencing
judges should anticipate victims’ grief, disappointment and resentment and
respond sensitively to victims’ interests.
Such a response could be for
the judge to explain:
As in the second matter described above, the
judge could also speak reassuringly to the victims when they come to read their
amended
statements to the court.
Consistent with adversarial traditions,
the judge does not have to provide this explanation by speaking to victims
directly (though
this would not interfere with the judge’s neutrality).
Instead as was the case in matters I observed, judicial comments regarding
the
VISs and the law can be directed to the court more generally with the knowledge
that the victims in the public gallery will be
able to hear the remarks. This
would demonstrate awareness of and respect and sensitivity for the interests of
the victims and would
not interfere with the defendant’s entitlements
– indeed the interests of the defendant and the court are enhanced if
emotional tension and conflict is reduced in the hearing.
CONCLUSION
The inclusion of victims and their VISs in the adversarial sentencing hearing reflects contemporary community sensibilities and expectations of fairness. A significant role of VISs in sentencing is to give victims a degree of status and ‘voice’ in the proceedings. Poor treatment of victims in this context such as arguably occurred in Borthwick has the potential to compromise the integrity of the law and its institutions and generate public disquiet.
Such victim participation is unprecedented in the modern sentencing hearing however and indeed “unfamiliar territory” (Garland 2001, p. 5) for sentencing judges. The requirement of fairness essential to legal proceedings has traditionally centred on the provision of a fair trial for the parties involved and a plethora of legal rules have developed to protect the defendant’s entitlements in particular. Opponents to VISs argue that giving victims an interest in the hearing through the submission of VISs has the potential to derogate from the fairness of the hearing. But as it has been argued in this chapter, fairness to victims need not override existing protections and actually might enhance the fairness of the proceedings more generally.
Fairness to victims in the sentencing hearing is not satisfied simply by entitling the victim to read his or her VIS to the court. The court must also ensure that victims experience procedural justice in the process which, in this context, is a function of the quality of the inter-personal treatment meted out to victims. Drawing from the findings of my qualitative study of victim participation in the sentencing of homicide offenders in NSW, this chapter has made recommendations in order to assist sentencing courts in common law jurisdictions to provide appropriate space and support for victims in the hearing as they present their VISs and also be responsive to victim interests in the course of challenges to VISs. The old assumption that victims can be ignored during the proceedings is no longer appropriate; instead sentencing judges must be alert to potentially anti-therapeutic effects of legal process on victims and ensure that victims are afforded dignity and respect.
Notes
[1] Typically VISs provide details
of the harm suffered by the victim as a result of the offence.
[2] Italics have been added.
Section 28(4)(b) Crimes (Sentencing Procedure) Act 1999
(NSW).
[3] Section 8R Sentencing
Act 1991 (Vic)
[4] Section 15B
Victims of Crime Assistance Act 2009
(QLD)
Bibliography
Arrigo, B. and Williams, C. 2003. Victim vices, victim voices and impact statements: on the place of emotion and the role of restorative justice in capital sentencing. Crime and Delinquency 49(4), pp. 603-626.
Ashworth, A. 1993. Victim impact statements and sentencing. Criminal Law Review pp. 498-509
Bandes, S. 1996. Empathy, narrative and victim impact statements. University of Chicago Law Review 63(2), pp. 361-412.
Booth, T. 2007. Penalty, harm and the community: what role now for victim impact statements in sentencing homicide offenders in NSW? University of New South Wales Law Journal 30(3), pp. 664-685.
Booth, T. 2007b. The contentious role of victim impact statements in sentencing homicide offenders in NSW. Law Society Journal 45(10), pp. 68-71.
Booth, T. 2011. Crime victims and sentencing: reflections on Borthwick. Alternative Law Journal 36(4), pp. 236-239.
Booth, T. 2012. Cooling out' victims of crime: managing victim participation in the sentencing process in a superior sentencing court. Australian and New Zealand Journal of Criminology 45(2), pp. 214-230.
Cassell, P. 2009) In defense of victim impact statements. Ohio State Journal of Criminal Law 6(2), pp. 611-648.
Chalmers, J., Duff, P. and Leverick, F. 2007. Victim impact statements: can work, do work (for those who bother to make them). Criminal Law Review, pp. 360-379.
Charmaz, K. 2006. Constructing grounded theory: a practical guide through qualitative analysis. Thousand Oaks, CA: Sage.
Daicoff, S. 2006. Law as a healing profession: the ‘comprehensive law movement’. Pepperdine Dispute Resolution Law Journal 6(1), pp. 1-61.
Doak, J. 2008. Victims' rights, human rights and criminal justice: reconceiving the role of third parties. Great Britain: Hart Publishing.
Edwards, I. 2004. An ambiguous participant: the crime victim and criminal justice decision-making. British Journal of Criminology 44(6), pp. 967-982.
Edwards, I, 2009. The evidential quality of victim personal statements and family impact statements. International Journal of Evidence and Proof 13(4), pp. 293-320.
Erez, E. 2004. Victim voice, impact statements and sentencing: integrating restorative justice and therapeutic jurisprudence principles in adversarial proceedings. Criminal Law Bulletin 40, pp. 483-500.
Freiberg, A. 2007. Non-adversarial approaches to criminal justice. Journal of Judicial Administration 16(4), pp. 205-222.
Garkawe, S. 1994. The role of the victim during criminal court proceedings. University of New South Wales Law Journal 17(2), pp. 595-616.
Garland, D. 2001. The culture of control: crime and social order in contemporary society. UK: Oxford University Press.
Goffman, E. 1952. On cooling the mark out: some aspects of adaption to failure. Psychiatry: Journal of Interpersonal Relations 15, pp. 451-463.
Goldberg, S. 2005 Judging for the 21st century; a problem-solving approach. Canada: National Judicial Institute.
Gubrium, J. and Holstein, J. 2009. Analyzing narrative reality. USA: Sage.
Henderson, L. 1985. The wrongs of victim's rights. Stanford Law Review 37(4), pp. 937-1021.
Hoyle, C. 2010. The case for restorative justice. In: Cunneen, C. and Hoyle, C. Debating restorative justice. Great Britain: Hart Publishing.
Iaria, M. 2010. Judge flags new victim statement policy. The Age 21 September 2010.
Jeffries, S. 2002. Transforming the criminal courts: politics, managerialism, consumerism, therapeutic jurisprudence and change. Australian Institute of Criminology.
Joh, E.E. 2000. Narrating pain: the problem with victim impact statements. Southern California Interdisciplinary Law Journal 10(1), pp. 17-37.
King, M. 2003. Applying therapeutic jurisprudence from the bench. Alternative Law Journal 28(4), pp. 172-175.
King, M. 2008. Restorative justice, therapeutic jurisprudence and the rise of emotionally intelligent justice. University of Melbourne law Review 32(3), pp. 1096-1126.
Kirchengast, T. 2010. The Criminal trial in law and discourse. Great Britain: Palgrave MacMillan.
Lind, E. and Tyler, T. 1988. The social psychology of procedural justice. New York: Plenum Press.
Logan, W. 2008. Confronting evil: victims’ rights in an age of terror. The Georgetown Law Journal 96(3), pp. 721-776.
McBarnet, D. 1981. Conviction: law, the state and the construction of justice. London: Macmillan Press Ltd.
Meredith, C. et al. 2001. Summary report on victim impact statement focus groups: Department of Justice (Canada): Policy Centre for Victim Issues.
New South Wales Law Reform Commission. 1996 Sentencing. New South Wales
Roach Anleu,S. and Mack, K. 2005. Magistrates’ everyday work and emotional labour. Journal of Law and Society 32(4), pp. 590-614.
Roberts, J.V. and Erez, E. 2004. Communication in sentencing: exploring the expressive function of victim impact statements. International Review of Victimology 10(3), pp. 223-244.
Roberts, J.V. and Erez, E. 2010. Communication at sentencing: the expressive function of victim impact statements. In Bottoms, A. and Roberts, J.V. eds. Hearing the Victim: Adversarial Justice, Crime Victims and the State. Great Britain: Willan Publishing.
Roberts, J.V. and Manikis, M. 2011. Victim personal statements: a review of empirical research. UK: Commissioner for Victims and Witnesses in England and Wales.
Rock, P. 2010. Hearing victims of crime': the delivery of impact statements as ritual behaviour in four London trials for murder and manslaughter. In Bottoms, A. and Roberts, J.V. eds. Hearing the Victim: Adversarial Justice, Crime Victims and the State. Great Britain: Willan Publishing.
Ryan, M. 2003. Penal policy and political culture in England and Wales. Winchester: Waterside Press.
Sarrat, A. 1997. Vengeance, victims and the identities of law. Social and Legal Studies 6(2), pp. 163-189.
Shapland, J. 2010. Victims and criminal justice in Europe. In Shoham, S. Knepper, P. and Kett, M. eds. International Handbook of Victimology. Boca Raton FL:CRC Press.
Shapland, J. et al. 2006. Situating restorative justice within criminal justice. Theoretical Criminology 10(4), pp. 505-532.
Shapland, J. and Hall, M. 2010. Victims at Court: necessary accessories or principal players at centre stage? In: Bottoms, A. and Roberts, J.V. eds. Hearing the victim: adversarial justice, crime victims and the state. UK: Willan Publishing.
Schuster, M. and Propen, A. 2008. Making academic work advocacy work: technologies of power in the public arena. Journal of Business and technical Education 22(3), pp. 229-329.
Schuster, M. and Propen, A. 2010. Degrees of emotion: judicial responses to victim impact statements. Law, Culture and the Humanities 6(1), pp. 75-104.
Spigelman, Hon J CJ. 2004. The truth can cost too much: the principle of a fair trial. Australian Law Journal 78(1), pp. 29-49.
Strang, H. 2002. Repair or revenge: victims and restorative justice.
Oxford: Clarendon Press.
Szmania, S.J. and Gracyalny, M.L. 2006.
Addressing the court, the offender and the community: a communication analysis
of victim impact
statements in a non-capital hearing. International Review of
Victimology 13(3), pp. 231-250.
Tait, D. 2001. Popular
sovereignty and the justice process: towards a comparative methodology for
observing courtroom rituals. Contemporary Justice Review 4(2), pp.
201-218.
Tyler, T. 1988. What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures. Law and Society Review 22(1), pp. 103-136.
Tyler, T. 2003. Procedural justice, legitimacy and the effective rule of law. Crime and Justice 30(1), pp. 283-357.
Wemmers, J. 1998. Procedural justice and Dutch victim policy. Law and Policy 20(1), pp. 57-76.
Wexler, D. and Winick, B. 1996. Law in a therapeutic key: developments in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.
Winnick, B. 2008-2009. Therapeutic jurisprudence: perspectives on dealing with victims of crime. Nova Law Review, 33(3), pp. 535-543.
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