Victim impact statements and sentencing
Garkawe, SB 2007 'Victim impact statements and sentencing', Monash University Law Review, vol. 33, no. 1, pp. 90-114.
Legislation allowing for victim impact statements ('VIS') to be presented during sentencing hearings has been introduced into the criminal justice systems of most common law nations, notwithstanding many reservations from defence lawyers and civil libertarians. Despite such legislation being widespread throughout the common law world, the use of VIS remains controversial. The main purpose of this article is to utilise basic sentencing principles in order to critically analyse the question of whether, and if so, to what extent, VIS are relevant to an offender's sentence. In such cases adequate procedural safeguards need to be instituted to ensure that offender's rights are not compromised. It will also be shown that despite the VIS being irrelevant to sentencing in the majority of cases, it is still justified to allow victims to submit a VIS in all cases as they serve an important therapeutic role for victims to submit a VIS in all cases as they provide an opportunity for victims to participate in the criminal justice system, thereby reducing their sense of powerlessness and enhancing their cooperation with the system. It will be acknowledged, however, that there are problems with allowing victims to submit VIS, knowing they should not be taken into account for sentencing purposes in the majority of cases. The article will suggest some solutions to these problems. The writer thus generally takes a supportive view of VIS, believing that the ability of victims to prepare and present VIS can enhance their satisfaction with the criminal justice system, while a careful examination of the limits that victim impact material should have on the court's sentencing discretion will mean that they ought not impinge upon the civil liberties of offenders.