Should Victims Have More Say in Penalty?

In the US, prosecutors are pushing for the death penalty for Dzhokhar Tsarnaev, the man convicted of the 2013 Boston Marathon bombing, and the sentencing process has already started.

But the parents of an eight-year-old victim of the bombing have spoken out against the death penalty for Tsarnaev.

Like many other countries, the wishes of the family are something that prosecutors in the US will often take into account when deciding what penalty to push for in the courtroom or what agreement to accept outside of court. It is even common for US courts to “rubber stamp” a particular penalty that is agreed between the prosecution and defence before the case is finalised.

The situation in Australia is very different. Here, a recent High Court case confirmed that prosecutors are not permitted to express their views about a particular penalty-type in court, let alone reach an agreement as to penalty outside court.

In Australian jurisdictions, the appropriate penalty is entirely a matter for the magistrate or judge – who is often called upon to consider a wide range of factors during the sentencing process.

The underpinnings of sentencing

There are a number of reasons for imposing sentences, including punishment, deterrence, protection of the community, rehabilitation, and recognition of the harm done to victims of crime and to the community.

These objectives have to be weighed up in light of the crime itself, the personal attributes of the offender and a many other factors when arriving at a particular sentence.

The input families currently have on sentences

When the primary victim has died in NSW, the Crimes (Sentencing Procedure) Act allows a member of the victim’s family to make a victim impact statement to the court.

This unsworn statement contains details of the impact of the primary victim’s death on members of the primary victim’s immediate family. It is provided after a finding of guilt, and may be taken into account by the court in determining the appropriate sentence.

How this has changed from the past

This was not always the case, however. Courts in NSW have until very recently held that it was never appropriate for a court to even consider family victim impact statements in sentencing, and that while the statements were allowed, their purpose was limited to providing a cathartic and therapeutic outlet for victims’ families.

This caused considerable distress to some families told by the court that their statements could not be considered or taken into account in sentencing. It raised the question as to why statements should be allowed at all if they had no relevance to the sentence – whether it was part of the court’s role to provide therapy for victims’ families, or whether that might be better undertaken by some other body.

It was also at odds with the situation in other states and other countries, including the UK and New Zealand, where family victim impact statements could be taken into account in sentencing.

The Crimes (Sentencing Procedure) Act was amended in 2014 to address these issues.

It now states:

“A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.”

Should statements contain specific views on sentencing to be taken into account?

There are a number of potential issues with this. Families are obviously unlikely to have a understanding of the principles of law, and how sentences are arrived at. There are also questions about fairness.

There have been references to the need to avoid a “lynch mentality”, and the importance of objectivity and consistency in sentencing.

These are legitimate concerns, although criminal lawyers do have the right to object to all or part of a statement, and members of the judiciary decide what weight if any to give statements, especially those that are obviously motivated by the desire for revenge, or conversely the desire to forgive.

The lack of a victim impact statement might become more problematic

Another objection may perhaps be that specific recommendations may breach the fundamental principle that the lives of all people are of equal importance. If a family’s victim impact statement can lead to a harsher sentence, this places a lesser value on the lives of victims who have no family to submit one, or whose family may not want to attend court or to prepare a statement for personal reasons.

Indeed, this would be an anathema to most people; the idea that causing the death of someone who has no family and who is likely to be more vulnerable, should incur a lesser penalty.

Victim impact statements are also voluntary, they are not a requirement, and the Act states that the absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on the members of the primary victim’s immediate family.

But this may mean that in cases where a victim does have family, but they choose not to tender a statement, the impact on the community would have to be inferred in other ways and it is logical to assume that statements made in similar cases might be relevant.

One of the principles in sentencing is consistency, that the same crime in similar circumstance should attract a similar penalty. If families were able to make their views on specific sentences plain as part of a victim impact statement, a statement made in one case could perhaps even have some affect on the sentences handed down in others, particularly if it were included as part of a sentencing database and available to the public and media.

While the use of family victim impact statements is part of a growing recognition that the law is not something separate and above society, and they do have value to families, there would be a number of issues in allowing and giving weight to the views of a victim’s family on a specific sentence in these statements.