In the wake of the sentencing of Kieran Loveridge for the manslaughter of Thomas Kelly, the New South Wales government has been busy drafting new sentencing laws. The government is consulting about a proposal to change state laws so that sentencing courts “may take account of” victim impact statements from members of the deceased’s family (family victims) in determining the penalty imposed on homicide offenders.
Such a change has the potential to be significantly detrimental to the interests of family victims in the sentencing hearing. It should not go ahead.
Currently in NSW, while family victims are entitled to submit and read their impact statements aloud to the court, those statements do not influence the penalty imposed. This does not mean that the deceased’s death and the loss to his or her family and community is irrelevant to punishment; of course the value of human life is central to the seriousness of homicide offences. But the highly personal, poignant and powerful stories of loss in statements from family victims do not influence penalty.
NSW is the only Australian jurisdiction that will not take account of victim impact statements in sentencing homicide offenders. This proposal was actually the subject of consultation in 2011 shortly after the O'Farrell government was elected. At that time, the government did not proceed because it found little support in the submissions received (including those from representatives of homicide victims’ families).
Submissions expressed concern that the proposed legislation might “undermine the therapeutic benefits for family victims”. Victims might feel compelled to submit an impact statement because offenders might receive lighter sentences if they did not. This could mean that victims who don’t want to or feel able to submit a statement would be forced to do so.
Furthermore, what would happen if the deceased did not have a family? Another concern was the stress for victims who might be cross-examined on the content of their statement by the defence.
My recent study of victim impact statements in the sentencing of homicide offenders in NSW included observation of sentencing hearings and talking with family victims. Based on the findings, there might be other detrimental effects for victims.
If impact statements can potentially influence penalty, it is likely that scrutiny of them before and during the sentencing hearing would increase. Before the hearing, prosecution guidelines now require prosecutors to review victim impact statements to ensure that the statements deal only with the impact of the deceased’s death on the family and contain no offensive, threatening or harassing material.
My study found that the fact that many impact statements were edited and/or altered during this review process was a major source of frustration and distress for family victims. A change in the law could exacerbate this problem. The government has made it clear that if the proposal gets up, even more stringent editing of statements would likely follow.
Increased scrutiny of their statements during court proceedings could be particularly detrimental for victims. A significant finding of my study was a marked lack of debate in the courtroom regarding the content of impact statements. No victims were cross-examined and in most cases the defence did not challenge the statements.
This was interesting given many of the statements read aloud to the court contained irrelevant and/or prejudicial material about the offender and the killing. In my view, most family victims in my study were “cut some slack” in relation to what they said because their statements were not going to influence penalty.
Lack of cross-examination is not surprising because research shows that it is extremely rare for a victim to be cross-examined about his or her impact statement. Even if the law changes, it is unlikely the rate of cross-examination will increase. But it is likely that more victim impact statements will be challenged in court as defence lawyers seek to exclude potentially irrelevant and prejudicial evidence.
If the objections succeed, statements will be amended and parts deleted publicly in the courtroom. Defence challenges to impact statements can be particularly distressing and disheartening for victims. As the family victims learned in the recent controversial Victorian case of Borthwick, victims are excluded and disempowered by this process.
The government proposes that a sentencing court will have discretion to “take account of” victim impact statements in sentencing. But it is unclear in what circumstances the court will exercise its discretion. Nor is it clear what it means to “take account of” the statements.
Such use of victim impact statements in sentencing is a highly contentious legal issue. There is no uniform approach adopted by the jurisdictions that are said to take account of such statements.
So, if lawyers and researchers are unsure, what might family victims expect from a change to the law? If family victims are told their impact statements will be “taken into account” in sentencing, many might harbour expectations that the sentence imposed will reflect the magnitude of the loss and grieving they described. They will be disappointed, distressed and even angered when it does not.
And research findings suggest that victim impact statements make little or no impression on sentencing outcomes in jurisdictions where they are taken into account.
Ultimately, the penalty imposed is not intended to reflect the value of the life of the deceased; rather it reflects the circumstances of the offence, the individual circumstances of the offender, past treatment of similar cases and legal principles. Generating false expectations is both detrimental for victims’ wellbeing and also for public confidence in criminal justice.
With homicide, the sentencing court is dealing with the aftermath of violent crime. Impact statements give family victims the opportunity to speak about the impact of the crime and the deceased and to be heard by the court, the offender and the community. It is not a good use of law to taint this opportunity with uncertainty, frustration and further distress.