Edit: Events in the Supreme Court last week show that there will be stumbles during attempts to involve victims in the sentencing process. Perhaps some of the flexibility recommended by the Court of Appeal in Hester‘s case might have helped.

Last Friday’s post about cutting-and-pasting interviews got me thinking about Victim Impact Statements, another document tendered by the prosecution which can sometimes become controverisal.

Gillard J in R v Medini [2002] VSC 12 [at 12]:

In 1994, legislation was introduced into this State which provided for a victim impact statement to be prepared by a victim and submitted to the Court to assist in determining the appropriate sentence. This had the effect of facilitating what, in the past, had been a difficulty, namely, placing before the Court credible evidence of the effect of the criminal conduct upon a victim. Often in the past, assertions were made from the Bar table and the Court was more often than not left to its own devices to draw inferences from the circumstances of the offence as to the likely impact on the victim. Now a procedure is available to enable evidence in proper form to be placed before the Court. Sections 95A – E of the Sentencing Act 1991 make provision for use of the statements.

Victim Impact Statements offer parties to a sentencing hearing an alternative to calling the witness for the (often confronting) experience of giving evidence. The prosecution benefit from a readily-available method of putting the consequences of the offender’s crimes before the court.

R v Medini [2002] VSC 12 [at 52]:

The impact statements assist the Court in a number of ways. Often in the sentencing process, the focus tends to be on the prisoner, and the impact statement is a timely reminder that the Court should not overlook the effect of the criminal conduct on the victim.

The accused also benefits in avoiding being seen to cause further distress to the victim of their offending, as they might if they cross-examine the witness rigorously. The last thing an accused wants is to appear demeaning to their victim at the exact moment the appropriate sentence is being considered.

Preparation of a VIS

Because of the reduced amount of control the prosecution have over the production of a VIS (as opposed to a witness’s statement or plea document) there sometimes is material contained in a VIS that is inappropriate. Vincent JA observed in DPP v DJK [2003] DPP v DJK [at 17]:

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.

It seems contradictory to me to say on the one hand that VISs contain valuable information that a court should have regard to, but on the other hand a court should not enquire into the accuracy of the information contained in them. This paradox is also reflected in the legislation about VISs at Division 1A Part 6 Sentencing Act 1991.

Section 95B reads:

95B. Contents of victim impact statement

(1) A victim impact statement contains particulars of the impact of the
offence on the victim and of any injury, loss or damage suffered by the victim
as a direct result of the offence.

(2) The court may rule as inadmissible the whole or any part of a victim
impact statement, including the whole or any part of a medical report attached
to it.

The Act desn’t provide any further guidance as to what the term direct result should be interpreted to mean. (Given the endless legal arguments that can be had about causation this seems to be an open invitation to inconsistency). Perhaps more importantly, the Act provides no further clarification of the bases on which a court may rule parts of a VIS inadmissible.

Under s 4(2) of the Evidence Act, the rules of evidence of that Act do not apply to sentencing unless one of the parties asks for the rules to be applied and the court deems it appropriate. Does that mean, absent such a request, that the common law rules of evidence apply to sentencing hearings, or that no evidentiary rules apply at all? Sentencing hearings seem to exist in a kind of limbo where the rules of evidence may be applied either selectively or not at all. Victim Impact Statements have developed out of this gray area.

Nettle JA in R v Swift [2007] VSCA 52 [at 7, Vincent JA and Habersberger AJA also agreeing]:

7 Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan [1998] 1 VR 123 and of Vincent JA in DPP v DJK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.

8 Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. Otherwise, as Murphy J said in R v Halden (1983) 9 A Crim R 30 (in another but related context), if it does not appear that a sentencing judge has necessarily relied upon material to which objection might successfully have been taken, counsel cannot hope to succeed in a submission on appeal that the judge in fact relied upon inadmissible material. Furthermore, if objection is taken on a matter of substance to any part of a victim impact statement which is inadmissible, the judge should either rule it inadmissible or make it clear during the plea or in his sentencing reasons that no reliance would be or was being placed on that part of the statement. But, under the existing practice, there is no reason why a judge should not make full use of relevant material in a victim impact statement, including material which goes beyond the ambit of s 95B , so long as the judge first makes plain to counsel that he or she intends to adopt that course and counsel does not object: R v Raimondi [1999] VSCA 101 at [15], per Tadgell JA and at [35], per Callaway JA, in diss, but not in principle; R v Wilhelm [2005] VSCA 192 at [12].

9 As at present advised, I see no reason to alter the existing practice. It provides advantages and a degree of flexibility of which strict adherence to the rules of evidence would not permit. From the victim’s perspective, it has the advantage of avoiding the need for a court appearance and, in favour of the offender, it allows the sentencing process to be completed more quickly and without the same degree of concentration on victim impact that the attendance of the victim may produce. Provided the judge makes plain his or her intention to make use of inadmissible material in the statement, the offender has the choice of either allowing the judge to adopt that course or alternatively of objecting to the use of the inadmissible material and requiring the victim to be called to give evidence of it. There is also the further protection, as the court has stated more than once before, that victim impact statements are not to be used to produce a sentence which is unfair; and articulate or emotional statements should not be used to justify a sentence which is not just in all the circumstances.

The Court in Swift dismissed the notion that the prosecution is responsible for the production of the VIS and should supervise its production and edit its contents:

6 The appellant’s argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim’s concerns. Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material.

Case Law

Case law on the issue is scattered, revealing no strong pattern of principle as to whether material should be ruled inadmissible, admitted but given little weight, or admitted for some purposes but not others. It’s probably fair to describe precedents as turning largely on their own facts.

A claim that an assault had led to cancer was discounted in R v White [2004] VSC 428. The disapproval of the victim’s family in the reduction of the charge from murder to manslaughter was likewise held to be inadmissible in R v Curtain [2007] VSC 309. In DPP v Walden [2003] VSCA 139 the forgiveness of the victim was argued to be inadmisssible by the DPP, and the Court left the issue for another day. The experience of a rape victim during the termination of her pregnancy was held to be relevant and admissible, even though some aspects of the experience were not the direct responsibility of the offender: GEM v The Queen [2010] VSCA 168.

One recurring theme is that overly emotive material must not be allowed to sway the court into awarding a more severe sentence than is appropriate in the circumstances.

R v Hester [2007] VSCA 298:

The reception of a victim impact statement into evidence on the plea is to be approached by the sentencing judge with a degree of flexibility, subject to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter.

Recent Changes

Section 95F permits the reading aloud of victim impact statements by the prosecutor as part of the sentencing hearing. The Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act expands this to allow victims of crime to read their own statements.

The legislation amends the existing provisions in the Sentencing Act 1991 and Children, Youth & Families Act 2005 to allow victims of crime to read aloud their own statements, rather than having the prosecutor do this. The explanatory memorandum describes the intent of the amendments as recognising, “the importance of victims, including family members and others who suffered as a direct result of the offence, having a voice to express the impact of the offence to the court if they so wish.”

The new amendments repeat that only portions of statements deemed admissible by the sentencing court will be allowed to be read.