SA: Victims of Crime Should have Lawyers for Sentencing

Tuesday 24 June 2014 @ 12.37 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

South Australian Victim's Rights Commissioner, Michael O'Connell, has been quoted as stating that the justice system’s long-term goal should be providing victims “a seat at the table” when judges decide the fate of criminals, including but not limited to being represented at the bar table and having equal standing with prosecution and defence lawyers and clients to ensure their views on sentencing are heard.

Current Victims Rights Principles

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 victims rights activism, especially in the wake of the king hit issues in NSW, has become a powerful political force.

There are 20 Basic Principles of Justice for Victims of Crime and these are often embodied across the States by some or all of the following:

  • Victims being able to provide victim impact statements to the court for consideration in sentencing;
  • Victims being informed of charges being withdrawn;
  • Victims being informed of offenders being released from prison; and
  • Victims having access to social workers for support throughout the prosecution.

More Lawyers? A Win for Victims?

O'Connell's comments come in the wake of two families telling The Advertiser of their dismay and disgust over sentences imposed upon offenders who shattered their lives, namely in a child sexual assault case and an inattentive driver causing death incident.

O'Connell has said that the “inevitable” next step was having lawyers make submissions on behalf of victims during sentencing hearings, on equal standing with prosecutors and defence counsel:

“Studies show that, when victims feel like they’re been listened to during the court process they are much more accepting of sentencing outcomes, even adverse ones...If victims had legal counsel, that would better give them a sense of having genuine rights, legitimacy and identity in the justice process...My long-term goal would be to have victims not simply sitting at the justice table but sitting as an equal party at that table.”

 However, having victims with legal representation, even in only the sentencing portion of a trial, raises important considerations of its own:

  • Who would pay for the legal representation of victims?
  • How much would the cost and length of the average criminal trial increase if submissions were to be heard from victims' lawyers?
  • How much would this average length delay other cases to be heard?
  • What would then happen if a victim wanted a different approach to the trial than the prosecutor?
  • And, finally, what would be the result if a victim's expectations were not met due to disparate sentencing and offending issues, only taken into account on a case by case basis by the presiding judge?

Disappointed victims are likely to feel the pain of an "unfair sentence" more than prosecution and defence lawyers who make these kinds of submissions on a daily basis and understand the legal ramifications of certain sentence remarks. It remains to be seen whether this will be a legal procedural move with lasting effect.

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