The South Australian Commissioner for Victims’ Rights, Michael O’Connell, recently called for victims of crime to have their own lawyers at the time that criminal defendants are sentenced.
O’Connell’s call was prompted by two sentences handed down by local South Australian courts. First, a 70-year-old woman pleaded guilty to aggravated driving without due care after her car swerved onto the wrong side of a country road, killing a 20-year-old man who was driving in the opposite direction. She received a suspended two-month jail sentence and her driver’s licence was suspended for nine months.
Secondly, a 35-year-old woman and her 37-year-old partner, a primary school teacher, pleaded guilty to multiple counts of unlawful sexual intercourse, indecent assault and production of child pornography involving the woman’s ten-year-old daughter. They were each sentenced to five-and-a-half years prison but will be eligible for parole in three-and-a-half years.
Families of both victims have expressed outraged at the sentences, saying they are grossly inadequate.
Victims’ involvement on the rise
Over the last 20 years, victims of crime in Australia have become much more involved in criminal prosecutions, as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power has been recognised, and victim rights activism has become a powerful political force.
There are variations across the country, but victims can now often provide impact statements to the court, make submissions on penalty, be informed about charges being withdrawn or offenders being released from prison, and have access to social workers for support through the prosecution process. However, they are general witnesses only – not parties to the prosecution.
O’Connell argues that the “inevitable” next step is having lawyers appear for victims on an equal footing with other lawyers during sentencing hearings. But is it either inevitable or desirable that victims have legal representation in criminal trials?
Victims certainly hunger to be heard in the sentencing process, as they have a general view that sentences are too light. They might feel more satisfied with the process and outcome of prosecutions if their views were presented alongside those of the defendant.
There are precedents for victim participation in criminal prosecutions. The International Criminal Court prides itself on having victims participate at all stages of prosecutions, including at sentencing.
O’Connell has called only for victims to be involved at the sentencing stage. However, just as he calls this the inevitable next step, calls for further representation would surely follow if this proposal were accepted.
The case against more lawyers
Further involvement of victims would raise important issues. Who would pay for the legal representation of victims? How much would the length and cost of trials increase if victims were calling, examining and cross-examining witnesses? How long would other cases be delayed because of longer trials?
Most significantly, what would happen when, again inevitably, victims wanted a different approach to the trial than the prosecution did? Would fewer convictions result because trials become a hotchpotch of conflicting approaches by prosecution and victim lawyers?
Returning to the current proposal and the cases that prompted it, while the two cases both involve families unhappy with sentences, the offending and sentencing issues had little in common. Public opinion on the sentence for the child sex case would surely support the victim’s father in his belief that the sentence was too light. An appeal court may well agree.
The driving without due care case is different. The grief and anger of the family at losing the young man they loved is palpable and their desire for a harsher penalty is entirely understandable.
However, a 70-year-old woman who caused a death through momentary inattention without speed or alcohol being involved is likely to be a sympathetic defendant within the court and the community.
The family’s love and loss and grief and anger fuel their desire for a prison sentence for the driver. If they had independent representation they could share that pain more readily, and any sentencing judge would empathise with them. However, judges or magistrates are unlikely ever to jail such a woman and the bulk of the community is unlikely to want them to.
Every day in every court, defence and prosecution lawyers make submissions on sentence that are not followed. That can be disappointing or even infuriating, but it is part of the job.
Victims’ lawyers would not be able to secure the sentences that victims want any more than other lawyers can. But the disappointment victims would feel at the imposition of a sentence that they consider too light could be greater than it is now if their voice had been heard but their opinion not accepted.
Kellie Toole does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.