Area of Law – Sentencing

An Article about victim’s view on sentence in criminal case

SENTENCING – Victim’s view
Often offending occurs in circumstances where the accused and the victim are well known to each other. Often by the time the Court process has been going for a while the victim and the accused have made up their differences or the victim has an understanding of why the offending occurred in the first place.

It is then important to convey the view of the victim as to sentencing.

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”

s.5(2)(db) the judge must have regard to “any injury, loss or damage resulting directly from the offence”.

Some case law in relation to the issue;

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]. But 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”.

R v Skura [2004] VSCA 53

(Canadian woman inciting another to kill her husband. He forgave her and wanted her back)

Justice Eames said in the same case;

R v Skura, which were agreed to by Buchanan, J.A., I said this:

“Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case. In the passage of the sentencing reasons cited by Smith, A.J.A. the judge reflects undue reluctance, in my opinion, to give full weight to the victim’s statement. As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here.”

 

Date: 09/01/2009