Area of Law – Sentencing

An Article about Forgiveness of victim in criminal case

SENTENCING – effect of victim’s forgiveness
If the victim has forgiven the defendant that fact is often very powerful on a plea of guilty for an accused. There are offences that it will have more effect in than in others. It is common sense that if a victim has forgiven the offender then the Judge is going to give some weight to that position.

In Victorian sentencing the case law has said the following;

“By s.5(2)(da) of the Sentencing Act 1991 the sentencing judge must have regard to “the personal circumstances of the victim of the offence” and by s.5(2)(db) the judge must have regard to “any injury, loss or damage resulting directly from the offence”. Smith, A.J.A. observed in R. v. Skura[18] that:

“It may be said that neither of the above provisions change the long-standing position that it has always been relevant for a sentencer to have regard to the impact on the victim[19].

So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant[20]. B

ut evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting[21]. It may mean that “psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor”[22].

Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation”.

 

Date: 09/01/2009