Friday, 13 April 2012
The Role of Victims in Sentencing and Parole
The recent debate about increasing the "role of victims" in the sentencing processes in our Courts is a good thing, those who suffer as a result of crimes should be heard. However we must be careful not to allow our courts to become platforms where the suffering of victims is relived again and again and again for the sole purpose of allowing someone to express hatred or to have the scab that has begun to heal continually picked open to satisfy a push by extreme sector groups to establish what to my mind appears to be a purely retributive justice system.
Victims are not a special class of persons. They like all of us come with different backgrounds and life stories. Most I have genuine sympathy for. Some however can be just as untruthful as a convicted accused. Some just want to forgive and forget and allow time to heal. I have seen cases where a Judge wanting to find out how a victim "really feels" actually through questioning made a victim go from wanting to forgive an accused to breaking down and crying for revenge.
Sometimes I have seen cases where one person who commits an offence will get a wildly different sentence from another person who has committed the same type of offence. The only difference being the views of the victim. Parity in sentencing can be eroded by placing undue weight on the views of victims. Further, just because someone is a victim of offending their ability to speak only the truth with complete objectivity is not guaranteed. To develop policy based upon the views of people when they are still in the melting pot of raw emotion is dangerous. Indeed that is the sort of passion that fuels mob justice.
It is entirely proper that victims can make submissions at all hearings of the trial and parole processes.This reflects an international trend in relation to victim’s participation in sentencing and the parole stages of sentence. Impact is properly taken into account in terms of sentencing. As Matt Black opined in his May 2003 paper published by the Australian Institute of Criminology; Victim Submissions to Parole Boards: The Agenda for Research:
If victim submissions are likely to have a large impact on parole decisions, disparity may arise between offenders whose victims make submissions and those whose victims do not. The mere presence of a victim submission seems small justification for treating an offender more harshly. It was noted that the parole board studied by Parsonage et al. (1992) subsequently reassessed its guidelines to clarify how victim submissions should be used (Bernat et al. 1994).
To accept a victim’s statements regarding their belief about sentence integrity as a reason for sentencing in a certain way or for denying parole presents difficulties. There is the clear risk of disparity in sentencing and parole outcome for people presenting with similar fact patterns: the same offending characteristics can affect two individuals in completely different ways. The same assault on a confident physically resilient person, for example, may well have a less serious impact both emotionally and physically than it would on someone of the same age etc but with poor health and a nervous disposition. Similarly, two individuals may well have completely different views as to severity of punishment, for example length of time to serve before release on parole, which fits the crime. In both cases, the risk of inconsistency would be increased.
Black (see above) referring to the use of victim submissions to parole boards in Australia notes that Tasmania has one of the most comprehensive legislative frameworks for the use of victim submissions in the parole process (in Australia):
The Tasmania Parole Board's (2001) view is that "in nearly all cases it would be wrong to refuse parole solely because of the objection of a victim". However, it does see victim submissions as "relevant to the sort of conditions which would be imposed on [a] parole order". For example, the board commonly imposes freedom of movement restrictions in order to ensure the offender does not come into contact with the victim.
As noted from the 2005 Annual Report of the Parole Board of Tasmania:
The Board considers it would be wrong and contrary to the requirements of the Act to refuse parole solely because of the objection of a victim or relative; such objections are relevant in the overall decision making process and are certainly relevant to the sort of conditions which would be imposed on any parole order that might be made. For instance the Board almost always imposes limits on the freedom or movement of parolees in order to eliminate or at least reduce the risk of the prisoner coming into contact with a victim of his criminal behaviour.
Mr Black, in the paper cited above, referred to the United States study by Parsonage, Bernat and Helfgott (1992) who conducted a pilot study into the effect of victim submissions upon parole decisions. Mr Black reports this highly instructive study as follows:
The authors studied parole data from 1989 in the state of Pennsylvania and divided the 3,559 parole decisions into two groups: cases in which a victim impact statement was present and cases in which one was not. The authors then randomly selected 100 cases from each group. Various data were collated, including offence variables (such as type, seriousness and plea) and offender variables (such as ethnicity, gender, occupation and education).
The study found that parole was refused in 43 per cent of the victim impact statement cases and seven per cent of the non-statement cases. This contrasted with the board's own decision-making guidelines that suggested parole should have been denied to 10 per cent of the victim impact statement cases and seven per cent of the non-statement cases. In summary, the presence of a victim impact statement had a significant impact on the parole outcome across all types of offence, offender and victim. Apparently, the mere presence of a victim impact statement predisposed the board towards denying parole.
This study reinforces the need for careful attention to the need for consistency, parity, and giving due, but not undue, weight to victim submissions.