Victims in criminal cases, or their family members, often want their voices to be heard in the courtroom – to let the defendant, the court and the community know about the impact of the offending conduct.
In some circumstances, they will be given an opportunity to do so during sentencing proceedings through what’s known as a Victim Impact Statement (VIS).
The rules for VIS’s are set out in Part 3, Division 2 of the Crimes (Sentencing Procedure) Act 1999.
A VIS is a voluntary statement written by either by the victim themselves (primary victim) or close family members (family victim).
Family members who are entitled to make a statement are:
- Spouse
- De facto partners
- A person who was engaged to be married to the victim
- Grandparent, parent, guardian or step-parent
- Child, grandchild, stepchild or child for whom the victim was the guardian
- Siblings (including half-sibling and step-siblings)
A VIS cannot be handed up to the court if the victim objects to it.
It must be made in writing but can also include photos, drawings or other images.
If the court receives the victim impact statement, and it is in the proper form, the victim can read out all or part of it.
When can a VIS be made?
Not every victim of a crime is entitled to make a VIS.
They are only allowed for certain types of offences including murder, assaults that involve actual physical bodily harm, or actual or threatened violence, and prescribed sexual offences.
A VIS can also be made if the offence is one that carries a higher penalty if it causes the death of a person.
In some circumstances, the court has discretion on whether or not it is appropriate to hear a victim impact statement, but if the victim has died as a result of the crime, the court must receive the statement of a family victim and acknowledge it’s receipt.
If a victim plans to write a statement, the court can make a copy available to the defendant, but the defendant will not be allowed to keep a copy.
Statements can only be made in circumstances where a defendant is found guilty or pleads guilty.
What affect could a VIS have on the case?
Since a VIS is given after a finding of guilt, it cannot affect whether or not the court finds a defendant guilty or not.
But it can affect the penalty that is given.
The impact of the offence on the victim and their family is a relevant consideration when determining the appropriate penalty.
The harm done to the community is also one of the key principles of sentencing, according to s 3A of the Crimes (Sentencing Procedure) Act.
However the attitude of the victim or their family in terms of forgiveness or a desire for retribution cannot be taken into effect.
In other words, the harm caused can be considered, but their attitude either towards leniency and forgiveness or revenge cannot be taken into account.
Recent changes to the law
Changes in the laws earlier this year extended the categories of offences where a VIS can be made.
The changes followed of the tragic death of Thomas Kelly.
During sentencing, the judge could not take into account the VIS made by Kelly’s parents when sentencing the offender, Kieran Loveridge.
Kelly’s parents were devastated.
Victim impact statements can be seen as controversial, as they could be construed as promoting harsher punishments against defendants who murder people who have a family member willing to make a statement, as opposed to victims that do not.
This is contrary to the principle that all victims should be treated equally and that it is unfair to assess penalties based upon whether someone’s loved one speaks up for them, or indeed whether a surviving victim speaks up themselves.
The legislation specifically states the fact that a VIS is not made does not mean that the crime caused little or no harm to the victim or their family.
If you are concerned about the impact that a VIS could have on your criminal case, speak to an experienced criminal lawyer.
