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IPS Vol 2 No 2

VICTIM IMPACT STATEMENTS IN HOMICIDECASES: SHOULD 'RECOGNISING THE HARM DONE...TO THE COMMUNITY' SIGNIFY A NEW DIRECTION?

Mark WaltersLecturer in Criminal Law, Faculty of Law, University of New South Wales*

Abstract: Victim impact statements have played an active role in voicingthe harm caused to victims in a variety of criminal cases for thepast 8 years in New South Wales. However their role indetermining sentence in homicide cases has been limited byParliament and strictly prohibited by the Criminal Court ofAppeal since the year they were introduced In light of a politicalclimate which is demanding that communities play a larger rolein the criminal justice system amendments have been made to theCrimes (Sentencing Procedure) Act 1999 (NSW). One suchamendment has been the creation of a new purpose of sentencing.The Act now states under section 3A(g) that the court must'recognise the harm done to the victim and to the community'.This has led to suggestion in some recent cases in the CriminalCourt of Appeal that it may be time to re-evaluate the leadingdecision in Previtera which prohibits the court from using victimimpact statements made by family members when determining therelevant sentence in homicide cases. This article will evaluate thecurrent position of victim impact statements in homicide casesand examine whether 'recognising community harm' should nowinvolve family members of homicide victims. Further, this willinvolve a discussion on other implications that interpreting 'harmdone to the community' may have on the criminal justice system.Could it lead to other community members making statements toaid the court in their determination of sentence and will this beappropriate?

* Thanks go to Mark Findlay and Donna Spears for their comments on an earlier version ofthis article.

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Introduction

Since the introduction of victim impact statements in 1997 in New SouthWales' many have discussed the role they play in the criminal justice systemand the impact they have on the sentencing process.2 Whether such victimparticipation works within a historically offender-based system is subject todebate, which centres on the objectivity of the criminal law, the application ofsentencing principles and victims' rights. 3 What is certain, however, is thatthey are popular with governments across the common law world and aretherefore here to stay.4

One area in which the use of victim impact statements has remainedcontentious is in homicide cases. In fact, their use in NSW as part ofdetermining the relevant punishment of the offender is prohibited.5 Yet, anamendment to the Crimes (Sentencing Procedures) Act 19996 has lead tosuggestions, in various recent Criminal Court of Appeal cases, that the Courtshould re-evaluate its position on this. This article will specifically examine thecurrent law relating to victim impact statements in homicide cases and whetherthey should be used when determining the sentence for defendants convicted ofmurder or manslaughter in light of the amendments made to the sentencingpurposes under the Act. Section 3A(g) now requires courts to take 'community

1 Section 447C of the Crimes Act 1900 (NSW) was inserted by the Crimes (Sentencing

Amendment) Act 1987 (NSW) to provide a statutory basis for the provision of victim impactstatements in the sentencing process. However the amendments were not commenced andwere repealed by the Victim's Rights Act 1996 (NSW). This led to amendments of theCriminal Procedure Act 1986 (NSW) in 1997 to facilitate submissions of victim impactstatements. The relevant provisions are now found under ss 26-30 of the Crimes (SentencingProcedure) Act 1999 (NSW).2 See A. Ashworth, 'Victim impact statements and sentencing' (1993) Criminal Law Review498; E. Erez & P. Tontodonato, 'Victim participation in sentencing and satisfaction withjustice' (1992) 9(3) Justice Quarterly 393; E. Erez, 'Who's Afraid of the Big Bad Victim?Victim Impact Statements as Victim Empowerment and Enhancement of Justice' (1999)Criminal Law Review 545; I. Edwards, 'The Place of Victims' Preferences in the Sentencingof "Their" Offenders' (2002) Criminal Law Review 689; B. Myers, 'The prejudicial Nature ofVictim Impact Statements' (2004) 10 Psychology, Public Policy and Law 492; E. Erez & L.Rogers, 'Victim Impact Statements and Sentencing Outcomes and Processes' (1999) 39(2)British Journal of Criminology 216; A. Sanders, 'Victim Impact Statements: Don't Work,Can't Work' (2001) Criminal Law Review 447.3 1bid.4 The United Nations Charter of Victim's Rights Declaration 6 states that 'judicial andadministrative process should allow the view and concerns of victims to be presented andconsidered at the appropriate stages of the proceedings where their personal interests areaffected...'.' R vPrevitera (1997) 94 A Crim R 76.6 Amended by the Crimes (Sentencing Procedure) Amendment (Standard MinimumSentencing) Act 2002 implementing the purpose to recognise the harm done to both the victimand the community. The Crimes (Sentencing Procedure) Act 1999 will be referred to as the'Act'.

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harm' into consideration. Yet to be explored in any detail by the courts thisarticle will examine the broader question of what 'community' means withinthe criminal justice system context. This will involve discussion of communityas a victim, what community harm is and whether community harm can bequantified. 7

Generally, the Act provides that a victim of crime can submit a VIS into thecourt8 , and that this statement may be used to determine punishment. 9However, the approach taken with respect to cases of homicide is much morenarrow.

Section 28(3) of the Act starts by providing a mandatory requirement that acourt must 'receive' a victim impact statement (if one has been prepared) froma family victim when the primary victim has died. The court 'must receive andacknowledge its receipt and may make comment on it that the court considersappropriate'. However, the Act goes on to prescribe, under section 28(4), that it'must not consider a victim impact statement given by a family victim inconnection with the determination of the punishment for the offence unless itconsiders that it is appropriate to do so.' The Act is somewhat confused here. Inessence, there is a statutory requirement that a statement must be received bythe court but that there is a presumption against its use to determinepunishment subject to judicial discretion to do so if the court finds itappropriate.

Parliament's intention was made clear when the Bill was amended inCommittee. 10 The Act was not to provide the courts with a tool for sentencingdecisions, but as a voice for the victim to be heard and recognised in public.

Using victim impact statements to help determine the sentence in homicidecases

The current position

It is important to the discussion of whether a new direction is emerging withinthe area of victim impact statements in homicide cases to first determine and

7 Discussion of the application of victim impact statements in court and of the advantages anddisadvantages of using them in the criminal justice system is outside the scope of this paper.For a well structured and articulate article on these issues see J. Baptie, 'The Effect of theProvision of Victim Impact Statements on Sentencing in Local Courts of New South Wales'(2004) 7(1) Judicial Review 73.8 See the Crimes (Sentencing Procedure) Act 1999 (NSW) s 27.9 R v King [2004] NSWCCA 444. The court held that as long as the victim impact statementwent to the objective criminality of the offence it can be taken into account when determiningsentence, para 177. (Note this case is superseded by the Crimes Amendment (Grievous BodilyHarm) Bill 2005 -waiting assent). See also R v Totten [2003] NSWCCA 207 at para 24.'0 JS Tingle, NSW, Parliamentary Debates, Legislative Council, 21 November 1996, 6387(S Tingle).

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examine the current statute and common law rules on this issue. Thedetermining question being: why are victim impact statements prohibited inhomicide cases when they will often serve the useful purpose of establishingthe consequences of a crime and, in many cases, be used to determine theobjective criminality of an offence?"

In Previtera12 the Court had received a victim impact statement written by thedeceased's son. The Court acknowledged its receipt and expressed sympathyfor the family's 'tragic' and 'senseless' loss.13 However, the Court went on tostate that where an offence involves the death of the victim, a victim impactstatement that deals only with the affect of the death upon the family, can neverbe relevant to the sentence that will be imposed. Although it was acknowledgedby Hunt C.J that the legislation is wide enough to apply in such circumstances,he did not think it was appropriate do so. '4 A year later in Bollen, Hunt C.Jstated that this remained the only valid interpretation of the legislation. 15

The Court in Bollen reasoned that the use of victim impact statements todetermine punishment would encroach upon the principle of equality before thelaw. The Court should not entertain the placing of differing values on differentlives. Hunt C.J expressed the view that it would be 'offensive to fundamentalconcepts of equality and justice for the criminal courts to value one life greaterthan another.' 16

In fact, the law already recognises the value that the community places uponhuman life. That is why homicide is already regarded as one of the mostserious crimes by law. 17 To impose a harsher sentence against an offenderbecause it is perceived that the life taken by him/her is valued to be higher thananother is grossly repugnant to both principles that all human life is equal andto the rule of law that requires everyone is to be treated as equal under thelaw. 18 In Dang the Court expressed concern for this very situation. Adams Jargued that it would be 'monstrous' to suggest that a deceased who has nofamily should attract a lesser sentence than a deceased who has a loving family.The Court went on to hold that:

" In R v King [2004] NSWCCA 444, a victim impact statement was submitted by the victim

after she had lost her unborn child in a violent assault (GBH). The court held that personalloss described by her victim impact statement had helped the trial judge to determine theobjective criminality of the offence and therefore was 'conformably with authority'.12 R vPrevitera (1997) 94 A Crim R 76.13 Ibid Hunt C.J at CL at 16.14 Jbid 17.

15 R vBollen (1998) 98 A Crim R 510.16 R vPrevitera (1997) 94 A Crim R 76 per Hunt C.J at 20.17 Ibid.

18 The court also differentiated between punishment, which is the task of the court, and

compensation of the victim which, in general, is the task of the Victims CompensationTribunal. Ibid Hunt CJ at CL at 17.

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The law holds, as it must, that in death we are all equal and the idea that it is moreserious or more culpable to kill someone who has or is surrounded by a loving andgrieving family than someone who is alone is offensive to our notions of equalitybefore the law.19

If the law did not hold this, the harm caused by an offence leading to the deathof the victim maybe more severe, and therefore more punishable, if the effecton the family of the deceased is greater.

There are two main rationales behind the leading decision of Previtera.20 Thefirst is that the harm documented by the victim impact statement is irrelevant tothe retribution component of sentencing. This is because it has already beendetermined i.e. the victim has died.2' This has already been proven (oradmitted) before sentencing.22 Secondly, if the Court was to use the statementto determine sentence it would be unduly prejudicial, obscuring the objectivityand dispassionate process of sentencing. Undeniably, the very nature of victimimpact statements in these circumstances would require subjective analysis ofthe emotional impact that the death has had on the family and of the personalqualities that the victim possessed.23

One might argue that victim impact statements used when sentencing otheroffenders of other crimes do just this by subjecting the sentencer to theemotional impact the crime has had on the primary victim. However, inhomicide cases it is feared that evidence described in a victim impact statementthat portrays the nature and character of the deceased may lead to adetermination of punishment relevant to the affable characteristics of thevictim. Therefore, the more genially the victim is portrayed the harsher thepunishment will be. Such determinations would unavoidably encroach onprinciples of objectivity and partiality. Sperling J in Slack suggested thatsubstantial weight could not be given to an account of harm in an unswornstatement which was untested by cross examination and 'in the nature ofthings, far from being objective and impartial account of the effect of theoffence on the victim' .24 That is, offenders should be judged on the crime thatthey have committed by reference to pre-existing legal standards, and not havetheir fate left to the particular feelings of the victim's family.25 This is a general

19 R v Dang [1999] NSWCCA 42 at para 25.20 Described in some detail in T. Booth, 'The Dead Victim, The Family Victim And Victim

Impact Statements In New South Wales' (2000) 11(3) Current issues in Criminal Justice 292,299.21 See also R v de Souza (Unreported, NSWSC, Dunford J, 10 November 1995) noting thatvictim impact statements that are admitted and used to consider sentence are serving aretributive purpose.22 For more detailed analysis on the retribution element of using victim impact statements inhomicide cases see Booth, n 22 above, 300.23 See Booth, n 22 above, 301.24 R v Slack [2004] NSWCCA 128 at para 68.25 See Edwards, n 2 above, 702.

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criticism of victim impact statements, but one that becomes more compellingwhen dealing with serious crimes that carry sentences such as life in prison.

Having restricted the use of victim impact statements in homicide cases thecourts may still be faced with certain problems in relation to the submission ofstatements at sentencing. While the Court in Previtera and Bollen held thatvictim impact statements are not to be used in determining sentences, by law,they must still accept and acknowledge the statement.2 6 Further, if the familymember of a deceased victim wishes to, he/she may read the statement out incourt.2 7 The issue here is that even though both section 28(4) and the commonlaw exclude the statement from being used to determine punishment, it isfeared that judges will nevertheless find it difficult to remove themselves fromtheir own compassion when confronted with a statement articulated in emotivelanguage. 28 It is important that subjective material, motivated by vengefulthoughts and structured with emotive language, be disregarded from the veryoutset in such matters so as to avoid any subjectivity in the sentencing process.29

The problem of subjectivity is particularly relevant to homicide cases. Boothnotes that a range of different harms are suffered by families. 30 These are sodiverse that an objective assessment of them would be highly problematic.Even if each harm could be regarded as relevant to sentencing, how would eachharm or loss be quantified objectively and what weight would be given toeach?

31

The implementation of section 28 has further implications for family members.An expectation is created that they will be able to influence the outcome of the

26 Section 28(3).27 Section 30A.28 See M. Hinton, 'Guarding Against Victim-Authored Impact Statements' (1996) 20

Criminal Law Journal 310, 317; Booth, n 22 above, 303-304; T. Booth, 'Contemporarycomment. Homicide, family victims and sentencing: continuing the debate about VictimImpact Statements' (2004) 15(3) Current Issues in Criminal Justice 253, 254. Otherarguments surrounding the problems with admitting victim impact statements that are moregeneral in any context include: statements are unsworn and can not be cross examined;articulation of statements will vary depending on education and/or literacy skills; manystatements involve information on the characteristics of the victim or opinions of whatpunishment should be given (these are both outside what is prescribed by the legislation) seeresearch carried out by T. Booth, 'Voices After the Killing' 10(1) Griffith Law Review 25;vengeful and emotive language used in statements may encroach on the objectivity of thesentencing process; it is the role of the state to represent the victims interests not the victimhim/herself. See further Baptie, n 9 above, and also n 2.29 Though research carried out by Booth found that judges ultimately disregard victim impactstatements made by family members as a factor to be taken into account in sentencing. Booth,n 30 above, 28. And Erez & Rogers, n 2 above. Other research has shown that this may not bethe case, Hinton, n 31 above.30 Booth, n 30 above, 39.31 Ibid. See further discussion below.

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sentence. Yet, they cannot influence such a determination in homicide cases.The judiciary must carry out this task ensuring that sentencing practice remainsobjective, dispassionate and fair. Indeed, the Act may have the effect ofalienating the family when they see that the statement has not impacted at allon the sentence. In such cases families may feel a sense of betrayal by thesystem. While it appears that the law has given families the chance to play arole in the criminal justice system, in reality their performance is ignored. Inthese cases it might be better for there to be no opportunity to submit astatement at all, rather than creating false hope and unfulfilled expectations.Thus it has been unfair of the NSW Parliament to give families a voice in suchmatters leaving them with an expectation that it will affect the sentencingprocess when, in reality, the courts in NSW will exclude it when determiningsentence.

32

Other jurisdictions

Other jurisdictions in Australia do not prohibit the use of victim impactstatements in homicide cases when determining the punishment of an offender.Legislation in Western Australia, Australian Capital Territory, South Australiaand Victoria all prescribe that victim impact statements may be used todetermine the punishment of the offender.33 For example, in Western Australiasection 24 of the Sentencing Act 1995 (WA) states that:

(1) A victim, or a person who may do so under subsection (2), may give a victimimpact statement to a court to assist the court in determining the proper sentence forthe offender.

This provision was discussed by the Supreme Court of Western AustraliaCriminal Court of Appeal in Hooper v The Queen.34 Steytler J stated that:

Under s 24(1) of the Sentencing Act 1995 a "victim" may give a victim impactstatement to a court to assist it in determining the proper sentence for theoffender. By virtue of s13 of the Act a "victim" is defined "in relation to an

32 The intention to give family victims a voice was described in Committee by JS Tingle,

NSW, Parliamentary Debates, Legislative Council, 21 November 1996, 6387 (QS Tingle).'The intention is to have the court acknowledge, after a person has been convicted of theoffence which resulted in the death of the person concerned and before the passing ofsentence, that the victim impact statement has been tendered, and to have the court makesome comment, if appropriate, about the trauma that has been outlined in the statement by thefamily of the victim. In that way the suffering of the immediate members of the family of ahomicide victim or the person who has died as a result of a crime will have beenacknowledged in public'. Hunt CJ in Previtera also mentions that the legislature had raisedthe expectations of families that such information could be taken into account. In doing sothey are guilty of misleading the family. R v Previtera (1997) 94 A Crim R 76 per Hunt C.J at21."3 Sentencing Act 1995 (WA) s 24, Crimes Act 1900 (ACT) s 343, Sentencing Act 1991 (VIC)ss 95A and 5(2), Criminal Law (Sentencing) Act 1988 (SA) ss 7A and s 10.14 [2003] WASCA 179 (15 July 2003)

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offence" to mean not only a person who, or body that, has suffered injury, loss ordamage as a direct result of the offence, but also, in a case where the offenceresults in a death, any member of the immediate family of the deceased.35

Steytler J goes on to state that the provisions set out in the SentencingAct:

were designed to involve victims in the sentencing process and to ensure thatjudges know of the actual, rather than the assumed, consequences of the crimeswhich come before them... There is no doubt that, in a case in which an offenderis to be sentenced upon a conviction of manslaughter or murder, any member ofthe immediate family of the deceased would be a "victim", in relation to thatoffence, within the definition of s 13 of the Act and consequently able to give avictim impact statement under s 24(1). In such a case the shock, grief and senseof loss suffered by each such victim would amount to "effects on ... [that] victimof the commission of the offence"'36

The courts in Western Australia have clearly shown that statements made byfamily victims are of important relevance to the court when considering thesuffering and loss caused by the crime, which will aid in the determination ofsentence.

Other jurisdictions have applied similar reasoning. In South Australia, Perry Jin Birmingham (No2) expressed the view that:

'Injury, loss or damage' to others flowing from the death of one human being maybe much more severe in one case than in another. ... Furthermore, there would belittle point in obliging the Court to have regard to such matters [victim impactstatements] if it was not intended that its consideration of them would have thecapacity to affect the sentence. 38

The approach taken by courts outside NSW is literal. That is, Parliament haslegislated to allow for victim impact statements to aid the courts in theirdetermination of sentence and must therefore be applied regardless of the typeof offence. The courts' approach to the use of victim impact statements appearsliberal. Their opinion is that if Parliament has legislated for victim input atsentencing, the courts should not discriminate between when they feel victims'input is appropriate and when it is not. However this view is far fromsimplistic in relation to homicide cases and community harm and will bediscussed in great detail below.

Though the case law in NSW is presently settled, there have been several casesin more recent times that have suggested a possible change in direction. The

3 Ibid at para 25.

36 Ibid at para 27 & 29. The Court went on to decide that the VISs in the case were irrelevant

as although the defendant had caused the death of the victim he had not been found guilty ofeither manslaughter or murder.37 See also Mitchell v The Queen (1998) 20 WAR 257.38 R v Birmingham (No2) (1997) 69 SASR 502 at -5(4. See also Mitchell v The Queen (1998)20 WAR 257; R v Willis [2000] VSC 297 ; R v Deniz [2001] VSC 36.

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introduction of a consolidated list of sentencing purposes under section 3A ofthe Crimes (Sentencing Procedure) Act 199939 has given rise to discussion ofthe last purpose, 3A(g). It states the purpose to 'recognise the harm done to thevictim of the crime and the community'. This has led Howie J in Berg to statethat the reasons given in Previtera may need to be reconsidered in a relevantcase by way of section 3A(g). 40 Therefore, in recognising this purpose, thecourts may need to encompass the kind of matters which are included in avictim impact statement made by a family member of a deceased victim. Morerecently, in the case of Tzanis the Court made the statement that within anappropriate case the decision of Previtera should be reviewed. It was however,not a case in which the decision could be re-evaluated. 41 Earlier this year SullyJ in R v Rd stated that competing sentencing purposes has meant that 'the viewsexpressed in Previtera have become, in consequence, controversial even in thisCourt.' 4 2 However, again the Court expressed the opinion that it was 'not anappropriate vehicle for determining current differences of opinion unless such acourse [could not] properly be avoided'. 43

In Attorney General's' Application Under S 37 of the Crimes (SentencingProcedure) Act 1999 Spigelman CJ, when speaking of section 3A, stated that,'It is arguable that some of the "purposes of sentencing" which must now guidesentencing decisions constitute a change of pre-existmig sentencing principle. ' 44

Spigelman CJ went on to argue that the objective of recognising the harm tothe community should be regarded as a separate purpose normally achievedthrough rehabilitation, deterrence or retribution and ultimately has introduced anew element into the sentencing task.45

Ultimately this will involve a discussion by the courts on what is meant by'recognising harm done to the community'; that is, does 'community'encompass family members of a deceased, and does 'recognise' mean thatvictim impact statements should be used to determine harm? The courts, usingtheir discretion, will have to weigh between the perceived prejudice that victimimpact statements can have on principles of justice and upholding prescribedsentencing purposes.

'9 Accepted widely as a codification of Veen v R (No 2) (1988) 164 CLR 465 at 476, R v King[2004] NSWCCA 444 at para 126. This is also described in the second reading speech by,New South Wales, Parliamentary Debates, Legislative Assembly 23 October 2002, 5815(Bob Debus).40 R v Berg (2004) 41 MVR 399 per Howie J at para 43.41 [2005] NSWCCA 274. The cases of R v Dunn [2005] NSWSC 1231 and R vMAH [2005]

NSWSC 871 recently applied the decision of Previtera noting that until the Court OfCriminal Appeal re-evaluates the decision it will remain binding.42 R v RD [2006] NSWCCA 31 at para 104.43 Ibid.44 Attorney General's Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999No 2 of 2002 (2002) 137 A Crim R 196 at para 57.45 lbid paras 58 and 59.

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Before the Criminal Court of Appeal embarks on this lengthy task it will benecessary to make analysis of various aspects of community harm. This willencompass, firstly, how the criminal justice system should view what acommunity is, secondly, when does that community become a victim andthirdly what ways can the court recognise the harm done to a community?(discussed in turn below)

Moving towards recognising the harm done to the community

The position in the US: Why the community should have a voice

Before the different factors of community harm are considered, let us first turnto the US to explore how community harm is recognised at sentencing. In1989, the Supreme Court of America prohibited victim impact statements frombeing used in the penalty phase of capital punishment trials, stating that theiruse in such trials violated the Eighth Amendment which prohibits cruel andunusual punishment.46 However, this decision lasted just two years before itwas overruled in Payne v Tennessee.47 The Court here held that victim impactstatement evidence was relevant to sentencing in capital punishment trials. Thereasoning behind this was twofold. First, determining harm caused by a crimewas a legitimate avenue of inquiry for sentencing authority. Second, victimimpact statement evidence could aid the determination of a more appropriatepunishment by providing extra information of the actual harm suffered by thoseaffected by the offence. 48 The Court expressed concern for the 'community'who as a 'victim' can suffer harm as a consequence of the crime. It followedthat evidence of community harm must be admissible at sentencing. 49 JusticeO'Connor argued that a jury should be able to examine the full extent of theharm caused by the offender before they determine whether a convictedmurderer should receive the death penalty. This would include the impact onthe victim's family and the community. Since Payne, a number of states havecodified this decision.) Many have even taken this reasoning further bypermitting community members to make oral or written statements which arethen submitted and used to guide the decision process. This is based on theassumption that the represented community is, in itself, a victim of crime. 52

The courts in America have argued that before a jury makes the decision ofdetermining whether a murderer should receive the death penalty, it is

46 Booth v Maryland 482 U.S 496 (SC, 1987)47 501 U.S 808 (SC, 1991)48 Ibid 830.49 Jbid 822.

'0 Ibid 830.51 See K. Long, 'Community Input at Sentencing: Victim's Right or Victim's Revenge?(1995) 75 Boston University Law Review 187, 200. Which states?12Ibid

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important that they hear the full extent of the harm caused by the offender. Thisshould include both harm done to the family and the community. 53 Some courtshave even heard second hand or third hand information. 4

The liberal view regarding community participation at sentencing, taken insome American courts, shows that victims are playing an increasinglyimportant role in the criminal justice process.

The changing way in which we understand victims of crime is especiallysignificant when placed against a sentencing background that has traditionallyfocused on retribution by the State. Victim participation in the sentencingprocess creates a tension between, on the one hand, the belief that the Statemust carry out dispassionate punishment and, on the other hand, the right ofvictims to some form of reparation and the ability to participate in the criminaljustice system. The two sit awkwardly next to each other; uncomfortable inwhat they aim to achieve.

While older theories of retribution used by judges have been implemented inrelation to the harm the offence has caused society as a whole; victimparticipation seeks to influence the judge's decision in relation to the harmsuffered by the individual/s thus incorporating a new element of victimparticipation into the punishment process.

The theory of retribution is based on the belief that consistent treatment ofoffenders at an objective level will create a fair criminal justice system whichtreats everyone equal under the law. Victim participation in sentencingdecision, is inconsistent with this theory. Such participation is the result of astrong victims' movement which demands individual involvement in thepunishing of offenders.

With the result of both victim participation and retribution playing importantroles in sentencing we are left with an unavoidable quandary where sentencingpurposes have become antagonistically unbalanced. Added to this perplexity isthe wider element of 'community harm'. Where does this fit in to the equation?Does recognising the harm done to the community take us further down theindividualised form of justice or does it reiterate the older theory that harm tothe community is based at a symbolic level whereby crime is committedagainst the State (i.e. the representative of the community).

Indeed, before the courts in New South Wales follow the American path ofhearing community impact it is important that we examine the following:

" Payne v Tennessee 501 U.S 808 (SC, 1991) per Justice O'Connor at 830.14 Long, n 51 above, at 199.

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No 1. Evaluating 'community': when is it harmed?

Before the community can play a legitimate role in the sentencing process ofhomicide cases it must be demonstrated that the community has been harmedand that it can provide relevant information on the harm suffered. 5 This hasfrequently been shown by communities suffering anxiety or fear of crime,resultant poverty or expenses, or added security. 56 The different levels ofvictimisation between communities may vary but no society avoids some formof societal harm, whether it is increased fear of crime or taxes to pay for thecriminal justice system to investigate the offender, insurance to protect privateproperty from criminal damage or theft. Accordingly, it has been argued that ascommunities are victims in their own right, community members have alegitimate interest in the sentencing process.57

Traditionally the influence that the community has over decisions made withinthe criminal justice system has been limited.58 This could appear unfair whenviewed against the fact that the impact the crime has on the community can beimmense. 59 As a result of the victim's movement, community groups andindividuals are increasingly asserting themselves in political and legalmatters. 60 Communities are fast becoming more influential in decision making,particularly in the process of crime fighting. 61 Section 3A of the Act, whichmakes 'community' a focal point in two out of the seven purposes ofsentencing, 62 is testament to this.

However, if the courts decided to take the purpose of community harm furtherit is important that firstly, its definition is analysed and understood.

" Ibid 201.516 Ibid 207.57 Ibid 207-208.58 See A. Thompson, 'It Takes a Community to Prosecute' (2002) 77 Notre Dame Law

Review 321, 322-336; J. Freeman, 'Criminal Justice and the Community' (1988) 10(1)Australian Crime Prevention Council Journal 13.9 For example, fear of crime, costs involved in policing, hospitals.

60 The use of pressure and lobby groups has had a great impact on legislatures and judicianieswhen making laws. Known commonly as 'identity politics'. See further a recent examinationof this in T. Kearns & A. Sarat (eds) Cultural pluralism, identity politics, and the law (AnnArbor, Mich.: University of Michigan Press 2004).6'1 For example, NSW has recently introduced Police Accountability Community Teams(PACT) in an attempt to promote and facilitate community consultation on local communitypolicing.62 Section 3A(c) 'to protect the community from the offender', and (g) 'to recognise the harmdone to the victim of the crime and the community.'

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No 2. Determining what is community in the context of criminal justice

Community is an elusive concept. In short we may describe it as a group ofpeople who hold a common interest of 'togetherness'. Within these groups ofindividuals will be smaller groups bound together by similar interests orcharacteristics. This means that although the community will share somecommon interests there will be different beliefs, attitudes and opinions withinits sphere. While the community may consist of differing cultures, as a whole itwill often hold a sense of cultural unity. This will often lead the community tofeel unified as a group and to also feel a sense of protectionism in order tomaintain the order and continuation of the community. 63

In many cases communities will overlap depending on what common intereststhey hold. For example, a homophobic attack resulting in the death of thevictim will affect not only the family of the victim but also: the wider gay andlesbian community who fear for their safety, the local neighbourhood where thecrime occurred, and perhaps even other minority groups who fear similar fatefrom such prejudice. In this sense determining what community is will be adifficult task especially if the community of victims overlap a myriad of othercommunities. 64 There is also the problem that some communities may holdprejudice against others. For example, in the case of an attack against a Muslimperson some members of the wider community may actually sympathise withthe defendant rather than the actual victim. 65

Therefore in order to implement community, as an entity which can be harmed,within the criminal justice system would be a task fraught with complexities.Communities are not easily identifiable and those that are may cross overseveral other communities. Determining individual communities impacted bythe crime will be an impossible task.

Instead, more appropriate within a criminal justice context, is to view thecommunity as a symbolic presence. That is, that the community is viewed as awhole entity. Therefore any harm done to individuals or other victims related tothe crime such as family members (secondary victims) fall outside that which isdefined as 'community harm' Family members will be victims directly affectedby the crime and are not a 'community' that has been harmed. They are ofcourse a part of the wider community but will play no extra role than any otherperson who resides in NSW in the sense of recognising community harm.

6'3 An in-depth analysis of the philosophical and theoretical notion of the community and

community policing is beyond the scope of this paper. For a detailed analysis of communityand the meaning of community see A. Ralph, I. Carter & G. Lowe, Human behavior in thesocial environment: a social systems approach (New York: Aldine De Gruyter, 1999).64 See further, Long, n 51 above, 214-216.615 See Walters M, 'Changing the Criminal Law to Combat Racially Motivated Violence'

(2006) 8 UTSLaw Review, forthcoming.

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We can not pick and chose what communities are and are not involved as avictim of a crime. This is because we are all victims in different ways and todifferent extents. Unless we are able to pin point the exact community that hasbeen harmed combined with the exact type of harm suffered it would be unfairfor the courts to take any precise form of community harm into account. Assuch 'community harm' should be viewed as harm done to the community as asymbolic force. Only as a symbolic force can community harm be validated.

No 3. Measuring community harm

Even if a particular community could be identified as being harmed, furtherissues arise when trying to measure and quantify the harm suffered. The idea isnotoriously vague and neither academics nor judicial officers have providedany guiding principles for determining legitimate community harms. Obvious

problems linked to the idea that individual communities can be harmed include:have all members of the community been harmed, or have some been harmedmore than others? For each member that has been harmed, what is the exactgravity of that harm? In determining the gravity of different harms, do we hearthe oral or written testimony of several representatives of the community atsentence (as is done in some states in the US)? Who will speak for thecommunity and who decides who should speak? Do we include broadprinciples of community morality? Would this include fear of crime in aparticular area? If fear is included how do we measure such fear? Could wesubmit research by government agencies or universities that show increases offear due to certain types of crime being carried out in a particular area?Moreover, even if the court was to entertain any of this, would it have the timeand resources to do it?

The questions are endless and it is not the author's intention to answer all ofthem. Instead they show the complexity of what is involved in embarking onsuch a task. Yet ultimately, if the courts wish to take community harm intoconsideration in any 'individualised sense' they will have to answer thesequestions in order to create any fairness within the system.

If the Courts do assume such a task they will encompass gross complexities.For example, if we are looking at financial costs of the crime to the community,do we add up each member of the community's insurance costs in the localarea and divide it by the population to get a picture of the financial costsuffered as an average? Do we do the same for the amount of taxes spent byeach person that goes into the local policing and court system? The complexityof such a task is so wrought with difficulties that the cost to the tax payer

66 A. Von Hirsh, 'Penal Theories' in M. Tonry (ed) The Handbook of Crime and Punishment

(New York: Oxford University Press 1998) at 675.

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would probably be higher (financially) than the cost to the community in thefirst place. Without objective methods of quantifying harm, the Court wouldhave to guess the severity of the harm, guided by unsworn testimony giving bythe opinion of a community representative.

Such complications give further weight to the author's proposition that anyrecognition made towards community harm must be made in the light ofcommunity as a symbol rather than determining and measuring any physical orfinancial harm suffered.

Do the courts already recognise harm done to the community?

The NSW courts already recognise the harm done to the community in thegeneral and symbolic sense discussed above. They have made specificindications as to how the community should affect their decisions. In VeenMason CJ, when talking of standard non-parole periods, stated that properregard must be given to community expectations that punishment is imposedcommensurate with the gravity of the crime.67 In King, Spigelman CJ said thataggravated forms of assault should reflect the community's legitimate concernto control violence. The greater the injury, the greater the community's concernand, thus, the greater the penalty imposed. 68 Recently, in Way, Spigelman CJobserved that guideline judgements are another way in which the courts cantake into account community's expectations as to the appropriate penalty to beimposed. 69 Each of these recognitions are made within a symbolicdetermination of who the community is. Moreover, a crime itself is prohibitedin the first place because it harms the community. In this sense the fact that acrime carries a punishment is a result of the criminal justice system recognisingthat it harms the community. 70

It is an avoidable fact, however, that victims or other members of thecommunity will sometimes be dissatisfied with the sentence given by the court.Hunt CJ expressed these very senitments in Previtera:

It is of course important that the sentences imposed by the criminal courts areacceptable to the community (including the victim and others affected by thecrime), important that those sentences are such as to demonstrate to the communitythat the offender has been given his just desserts - in other words, that justice has

67 Veen v R (No 2) (1988) 164 CLR 465 at para 11.6'8 R v King [2003] NSWCCA 399 at para 97.69 R v Way [2004] NSWCCA 131 at para 49.

'0 See for example Hunt CJ inR v Previtera (1997) 94 A Crim R 76 at 87, 'The law alreadyrecognises, without specific evidence, the value which the community places upon human life; that iswhy unlawful homicide is recognised by the law as a most serious crime, one of the most dreadfulcrimes in the criminal calendar.'

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been done. But it is unfortunately inescapable that those sentences sometimes donot satisfy the victim and the others affected by the crime.71

The harm done to a specific community, as opposed to a symbolic community,is not mentioned within any of the case law documented above and it is easy tosee why. The determination of punishment for specific community harms issomething the courts can not entertain. The Act states that the courts must payregard to the harm done to the community. It would be wrong to assume thatthis means anything other than recognising the harm done to the community ina general sense. There is no other option without falling into a peril ofcomplexities and ultimate injustice to some members of the communitycompared with others.

Applying the factors in homicide cases: further implications

In cases involving homicide, determining harm done to the community in anyspecific way would inevitably entail identifying the worth of the individualwho has been killed. This would lead to individuals being deemed more worthythan others. It is simply an unavoidable verity that some individuals will havegreater influence on the community that they live in compared with others. Forexample, a local doctor who sees thousands of patients a year and who mayhave saved several lives will ultimately be deemed to be of more worth than ahomeless man who spends most of his time drinking in the local park. Theimpact on a local neighbourhood of the doctor's death is greater than that of thehomeless man. That is because the doctor influences the health and comfort ofa large proportion of that local community while the homeless man does not. Itis unavoidable in the society that we live in that some lives will positivelyaffect the community more than others. As such, many will argue that the lossof some lives will affect the community more severely and that this must bereflected in sentencing. 72 It is argued that it is simple logic that if the harmcreated by the killing is of greater severity to the community then it should bereflected in the sentencing of the offender. 73

Indeed, one can easily see the argument that not all victims are of equal worth.The assumption that the death of different people will create different levels ofharm to the community has a logical basis. In fact, some may point out thatbelieving everyone is equal is idealistic at best. However, such a position hasfar reaching affects once taken literally. Any encroachment on the principlethat all humans are equal and that everyone is to be treated as equal in the eyesof the law must not be taken lightly. Once we cease to strive for equality within

71 R vPrevitera (1997) 94 A Crim R 76 at 86.72 Such is the view taken in many American jurisdictions. See above.7' N. Shanker, 'Getting a Grip on Payne and Restricting the Influence of Victim ImpactStatements in Capital Sentencing: the Timothy McVeigh Case and Various State ApproachesCompared' (1999) 26 Hastings Constitutional Law Quarterly 711, 737.

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the law the road ahead becomes a slippery slope towards discrimination. Thefight for equality is reiterated by almost all human rights laws and internationalconventions throughout the world.74 If we are to strive for a justice system thattreats everyone as equal we must also strive to protect the principles thatprotect these rights. The impact of the doctor's death is realistically going tohave a larger impact on the community than the homeless gentleman. However,if we are to take this into account in sentencing we venture down a path whichis so subjective in nature that the law becomes obeisant to socio-discriminationon a grand scale. The subjective nature of such discrimination would have theaffect of making the impact of the law determinable on the nature of someone'sjob, the amount of family they have and how well they are liked by others. Inno circumstances should the courts entertain such disregard for human equalitywithin the law. A system that treats different victims with different worthdependant on their community standing will serve only to create a divisivecriminal justice system.

Family members are not necessarily 'community victims'

Even if community harm was to be taken into account in any specific, ratherthan symbolic sense, could family members be described as 'community' forthe purposes of section 3A(g) of the Act?

We can perhaps divide victims into four categories: 'direct', 'indirect','secondary' and 'societal' . 7' Direct victims would encompass those who sufferphysical injury, property loss or emotional trauma as a direct result of thecrime. Secondary victims are those who experience emotional distress as aresult of the primary victims harm (this will include family members of thevictim). 76 Indirect victims will include those who suffer other less directproblems as a consequence of the offender's actions. These will include, forexample, the inability to sell a house because of drug dealers in the area.Finally, societal victims are those who bare the expenses of crime generally, forexample, payment of taxes for police, crime agencies, and hospital care forinjured primary victims. Under such a construction, community as a symboldoes not fall into the secondary category which includes family members of aprimary victim. Thus, 'harm done to... the community' can quite easily bedefined so to exclude the family of a deceased victim as outside the scope of itsdefinition.

74 See for e.g. Article 2(1) & 26, the International Covenant on Civil and Political Rights(1996) which Australia is a party to.; Article 2 of the Universal Declaration of Human Rights71 Shanker, n 73 above.76 The Standing Committee on Community Services and Social Equity, ACT LegislativeAssembly, The Forgotten Victims of Crime: Families of OfJnders and Their Silent SentenceReport No 6 (June 2004) 5, states under section 2.4 that 'secondary victims' of crime arefamily members of the primary victim.

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Conclusion

Recent suggestions by Howie J in Berg have given rise to the possibleinclusion of victim impact statements in homicide cases during thedetermination of sentence. The current position on this is strict but fair. Theworth of one human life can in no circumstances be deemed more importantthan any other. It is repugnant to the belief that all human beings are equal andthat everyone should be treated equal in the eyes of the law. To use victimimpact statement evidence in the most serious of cases is to reject fundamentalprinciples of objectivity and consistency within sentencing practice.

Homicide cases are of the most serious types of crime. In order to sustain a fairand just criminal justice system we must pertain to the very principles that itwas built on. The objectivity of the court in sentencing is vital. It is imperativethat sentencers are not influenced by emotive language that will often bemotivated by revenge. If we were to take the opinions of victim's families orother community representatives into serious consideration we would no doubtrevert back to a discussion of re-introducing capital punishment.

The criminal justice system has unavoidably taken heed of a political climatewhich demands that communities and victims are represented in the criminaljustice system. The Victim's Rights Act 1996 introduced victim impactstatements as a way of allowing victims to have a greater say in criminal justiceproceedings. Now they may be used as a tool to involve communityrepresentation in this same process. While it is the author's belief that thisultimately takes away from the objectivity of the process, it appears to be arepresentation that may become unavoidable.

Victim impact statements are useful in many ways outside that of determiningsentence. They create a voice for the victim where no voice has previouslybeen heard. They can also provide therapeutic effects to the victim who mayotherwise feel frustrated at having no control over the system.77 To this extentvictim impact statements can be regarded as an aid to community involvementin the law. Yet, this is where it must stop. The Chief Justice of NSW arguesthat the community view is important in setting sentences. However, this doesnot mean that victim impact statements by families in homicide cases should beviewed in this light or, for that matter, the statements of any other communitymember. A direct interpretation by the courts of who family victims are willallow them to determine that families are not necessarily 'community victims'but instead 'secondary victims' of the crime. The opinions of other members ofsociety based on this interpretation must also remain inadmissible.

77 See Erez, n 2 above.

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If the courts are to pay attention to 3A(g) they may do so in very much thesame respect as they have already expressed.78 That is, a general approachtaken by the judge to recognise the harm caused to the wider community. 79 Thecourts do not have to delve into the complicated realms of measuringcommunity harm but can, in determining the severity of harm, take account ofthe perceived harm that may be incurred by the community as a symbolicpresence. It is recognition by the criminal justice system that the communitymust play some role in the determination of sentencing without using technicaltools to measure the actual harm caused. This means that courts can makegeneral recognitions of community welfare and expectations without takingactual testimony by members of the community into account. If such testimonybecomes admissible the floodgates will open and the sentencing stage will bethrown into a chaotic circus of community testimony and evidence.

To follow the footsteps of the U.S or other jurisdictions throughout Australia isto follow a more punitive climate of sentencing. This is a popular stance withinthe community and a political tool used by governments to show their supportfor community involvement in the justice process. Yet, in doing this, we takeaway from the system what we should all ultimately want to achieve. Objectivedecisions based on objective facts. The final paradox will be revealed when thecommunity who called for greater involvement in the criminal justice systemwill be the first to proclaim their outrage when a miscarriage of justice occurs.

78 Veen v R (No 2) (1988) 164 CLR 465 at para 11; R v Way [2004] NSWCCA 131 at para 49

and R v King [2003] NSWCCA 399 at para 97.79 As is the case in some US states. See above.

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