Retiring Justice Philip Cummins’ comments about sentencing during his farewell sitting on Tuesday have caused some attention, particularly his appraisal that courts had “fallen short on sentence” in cases involving sex offences, violence, and especially domestic violence.
It won’t surprise anyone regularly appearing in summary courts that magistrates said they frequently find victim impact statements really helpful — especially for crimes of physical violence — and want them more often.
(But…the Courts jealously protect their role of determining appropriate punishment. While they want to know the effect of the crime on the victim, they don’t put as much store in the victim’s attitude to the appropriate sentence: R v Skura  VSCA 53 at ; R v Sa  VSCA 182 at  – .)
The latest Criminal Law Journal Volume 34 contains an article by Kate Warner critiquing the SA government’s proposals to grant victims a greater say in the sentencing process. Professor Warner legitimately points out the dangers of involving victims. Reading them, I was reminded of Justice Frank Vincent’s observations about the victim’s role in DPP v DJK  VSCA 203 [at 17 and 18]:
With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
Most of us recognise the symbolism at play in the legal system; but our familiarity with it means sometimes we become inured to it. But victims can find it restorative when the organs of state — our courts — say something like, “We acknowledge you were wronged. We can’t take back that wrong, but in our sentencing we do the best we can to put it right.”
The Court of Appeal commented on the power of the law’s rituals and symbolism in DPP v Scott (2003) 6 VR 217 at  and  – . Phillips CJ suggested that too many sentencing proceedings give the appearance that the interests of victims and their loved ones aren’t sufficiently addressed. With the approval of the whole Court, he suggested a sentencing scheme where:
- The Court may formally declare that any person who suffered injury, loss or damage from the offence, is a victim in the proceeding, and note that in the Court’s records. His Honour said, “This would do much to assure victims that the criminal justice system really cares about what happened to them and the results of it.”
- At a guilty plea, the prosecutor is required to open the facts of the offence to the judge, even if the judge indicates they’ve “read the papers”.
- If victims want, during the proceeding, either the prosecutor or judge may read aloud appropriate and admissible parts of the victim impact statement.
I can only really comment on summary courts to say this approach doesn’t seem to feature much in sentencing hearings. Largely because of the dearth of impact statements, but also because there doesn’t seem to be any systems-approach to announcing who the victims are and recording the effect of the crime on them. (But I frequently see individual magistrates orally refer to the effect of crime on victims.)
Perhaps we might see this change if more victim impact statements are provided to sentencers?