Don’t expect ‘world first’ impact statement to transform sentencing

Lana Towers was murdered by her partner. The court heard statements on the impact of her death on family and friends and, for the first time, on the broader community impacts of domestic violence. Facebook

In May 2013, Michael Suve McDonald beat to death Lana Towers, his partner of eight years and the mother of their two children. In what is thought to be a world first, the South Australian Commissioner for Victims’ Rights prepared and presented a “social impact statement” to the court at McDonald’s sentencing hearing.

McDonald had faced court and protection/intervention orders in Queensland and South Australia for previous violence against his partner. The post-mortem indicated she had been strangled and likely suffered “significantly” more than 50 blows to her body. McDonald was found guilty of murder and sentenced in December 2014 to the mandatory term of life imprisonment, with a 23-year non-parole period.

What is the role of a victim impact statement?

In South Australia, as in most other jurisdictions, a person who has suffered injury or loss due to a crime can provide a victim impact statement to the sentencing court. These statements communicate individual loss and anger, but not the wider social effects of offending.

Towers’ relatives and friends presented such statements to express how her death had affected them and her children.

What is a community impact statement?

In 2010, South Australia became the first state to allow the Commissioner for Victims’ Rights to provide a sentencing court with a community impact statement. This is intended to give the community a “voice” within the process and inform the court of the impact of particular types of offending on the community.

The impact statements can take the form of either a “neighbourhood impact statement” or a “social impact statement”.

A neighbourhood impact statement provides information on the effect of the offence on people living or working in the area in which the offending occurred.

A social impact statement provides information on the effect of a particular type of offence on the community generally. For example, in a drug manufacture case experts could provide information about the harmful effects of drug use.

How did the judge respond?

The statement presented by Commissioner for Victims’ Rights Michael O'Connell focused on the broad harm done by domestic violence. http://www.voc.sa.gov.au

The social impact statement at McDonald’s sentencing hearing listed the direct costs of domestic violence to the community through health care, victim services and compensation, housing and temporary accommodation, child protection, violence prevention, perpetrator treatment and the criminal justice system. It also outlined the indirect costs of reductions in household income, social and labour market participation of women, and economic growth.

The sentencing judge referred to the social impact statement. He called domestic violence a “terrible stain on Australian society” that results in an average of one woman’s death each week and turns the home of many women and children into a “prison” ruled by violence and intimidation.

Noting the burden domestic violence places on victims, households and society, the judge quoted recent High Court authority that:

A just sentence must accord due recognition to the human dignity of the victim of domestic violence and to the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner.

Impacts on sentencing may be limited

It seems a positive development for courts to recognise that domestic violence has ramifications beyond the effect on victims, and to acknowledge domestic violence as a social not just a personal problem.

However, while a sentencing court must take into account “that the primary policy of the criminal law is to protect the safety of the community” and “any other relevant matter”, there is no express requirement to take into account the content of a community impact statement.

The actual impact (if any) of such a statement on sentence will depend on its content. To have impact it will need to be relevant to the case and to provide the court with information not already known to the judge.

It is difficult to measure whether an impact statement has any effect on sentence. McDonald received only three years beyond the minimum non-parole period for murder. While the judge referred to the statement, he did not indicate that it affected sentence.

It is also possible that such statements will lose effect if they are submitted in every case.

Consequently, it is important that the community is not given high expectations that the submission of an impact statement will result in an increased sentence. The sentencing process is complex and requires the weighing up of many factors.

However, while a community impact statement might not be given great weight in sentencing, it might still play an important role in making members of the community feel they have a voice in the courtroom.

The commissioner’s social impact statement in the McDonald case undoubtedly raised critical issues for the education of the community and judges about the effects of domestic violence. It remains questionable whether the sentencing process is the appropriate place for conveying that critical information.