Power to the people: call to give victims more rights in sentencing

Picture by Bill Oxford on Unsplash
The sentencing of Porsche-driver Richard Pusey sparked public conversation and left some questioning whether current sentencing practices meet community expectations. Millie Spencer reports.

The state’s sentencing scheme needs an overhaul to strengthen victims’ rights and increase public confidence in sentencing, one of the state’s minor parties says.

Derryn Hinch’s Justice Party Member for Northern Victoria Tania Maxwell said following the public outrage over the sentencing of Richard Pusey, her party had again been thinking of ways to better reflect the public’s views in sentencing.

“Victoria’s system, as it stands now, is so geared against the interests and needs of victims of crime,” Ms Maxwell said.

Their interests and needs are usually not well reflected in court … leaving many victims walking away from a court case dissatisfied and re-traumatised.

Last month during question time, Ms Maxwell asked the government whether they had “given any consideration to the merits of the potential introduction in Victoria of an unduly lenient sentence scheme or a model along a very similar line”.

The unduly lenient sentencing (ULS) scheme was established in the United Kingdom in 1989, allowing victims of crime, members of the public, and prosecutors to ask the Crown to review a sentence if they believed it was too low.

Power to the people: call to give victims more rights in sentencing
Retired barrister Graham Thomas QC suggests an unduly lenient sentencing scheme needs to include both lenient and excessive sentences. Picture: Millicent Spencer.

Ms Maxwell said she thought a change such as this could make the system more victim-friendly.

“The England and Wales system has made a lot of victims’ lives better because their offenders are sentenced for longer periods, and there is a broader public confidence in sentencing,” she said.

“I think the overwhelming majority of Victorians are dissatisfied that their views are not being adequately represented in the court system.”

They feel that there is a disconnect between the courts and community values.

However, experts disagree.

Melbourne University senior lecturer Dr Jamie Walvisch, who specialises in criminal law and sentencing, said while community expectations should play a role in sentencing, it was important these expectations were properly informed.

“The factors a judge takes into account when sentencing are not made clear to the public in media reports which tend to focus on what the person did, creating a visceral reaction,” Dr Walvisch said. 

“The media makes it seem like judges are out of touch and are unduly lenient … the politics of fear sells newspapers.”

Power to the people: call to give victims more rights in sentencing
Dr Jamie Walvisch warns about the dangers of misinformed community views represented in sentencing. Picture: Millie Spencer.

Retired barrister Graham Thomas QC also warned about populist reactions.

“The reason I think people are influenced and guided by mock outrage is from certain sectors of the press,” Mr Thomas said.

“They’re trying to influence policy, and people suffer.

If you’re really being fair dinkum, you want a scheme that addresses excessive sentencing as well as lenient sentencing.

Under the ULS scheme, law officers in the UK received 577 applications for sentences to be reviewed in 2019. Of those, 93 were referred to the Court of Appeal and 63 sentences were ultimately increased.

Sentencing Advisory Council Chair and Emeritus Professor Arie Freiberg said while the scheme formalised the victim’s input, it did not give them the ultimate power to demand an appeal.

“The scheme doesn’t guarantee that an appeal will be made and doesn’t guarantee it will be successful,” he said.

“But let’s get real about what actually happens here. The scheme would put a greater burden on the office of the DPP (Director of Public Prosecutions), and I imagine they already get informal requests from victims who are not happy,” he said.

“If they have an open and broader scheme like this, things could get problematic.”

Statistics from the UK’s Unduly Lenient Sentencing scheme.

A handful is better than none

Ms Maxwell said people would always make unreasonable claims, but the scheme would still be effective even if only a handful of sentences increased as a result.

“Even if you had a handful of cases that were getting a sentence increase, I think people would feel a lot better about how the system was working and how sentences were reflecting community values,” she said.

“While the community might not understand all of the legal processes, if they are upset about how cases are being handled, they’ve got every right to express that as a member of the public.”

Ms Maxwell said in addition to restoring community confidence in sentencing, the scheme would critically impact the victims’ experience of the criminal justice system.

“The scheme takes all of that pressure off the people immediately involved in the court case,” she said.

“We talk to victims of crime a lot and they feel so alienated from the court system as a whole.”

Sentencing is not about the victim

Dr Walvisch said even when a victim was involved in an offence, a criminal case was not about that victim.

“The criminal case is about the state saying to an offender, ‘you have acted wrongly and deserve to be punished’,” he said.

“All too often the whole framework is presented as some kind of zero-sum game, in the sense that if the offender goes to jail forever the victim wins and if the offender gets off, the victim loses.”

“That’s not what is really going on here … rather, what is going on is an assessment of how bad the offender’s conduct was.”

I think it’s very easy to slip into an assumption that giving more power to victims means making sentencing more punitive … I think there are damaging consequences for that.

Dr Walvisch said while community expectations should play a role in sentencing, he was reluctant to see changes put in place that might lead to harsher and longer sentences.

“I’m not sure the way you get to that (understanding expectations) is through opening up a scheme to community complaints about a particular sentence,” he said.

“In England they’ve had this scheme for 30 years and people are used to it … presumably it’s not something new and exciting.”

“I could see if we set something up like this, you would end up with some kind of change.org petition saying, ‘write to the scheme so we can get 10,000 people to change things’ … that would concern me.”

The current system is appropriate

Prof Freiberg said Victoria’s current sentencing practices were suitable.

“The decision of whether to appeal or not is in the hands of the DPP, and I think this remains appropriate because the DPP are able to weigh out the relevant law, current sentencing practices and whether there has been an error or not,” he said.

“There are a number of rules about when an appeal may or may not be successful.”

“Victims might not be aware lenience alone, or perceived leniency is not sufficient grounds for appeal.”

Dr Walvisch said the main difference between Victoria’s sentencing practices and the UK’s ULS scheme was that there was no formal mechanism for the public to ask the DPP to appeal a decision.

“That said, in practice I’m not sure how much of a difference it would make,” he said.

“Currently, the DPP has the right to appeal sentences, and I believe anytime a sentence is given, particularly a high-profile case, they will have a very detailed discussion whether it is unduly lenient or not.

“Maybe if there was significant public pressure it would make them think more seriously about it, but they would be already taking their obligations as ministers for justice seriously.”

Current community views on sentencing

A 2018 Victorian Jury Sentencing study invited more than 400 jurors to sit in on a trial. After sentencing, the jurors were provided with the judge’s sentencing remarks—87 per cent of jurors thought the sentencing was appropriate.

Sixty-two per cent of the jurors said they would have imposed a sentence that was more lenient than the judges’.

Prof Frieiberg said studies like this showed that once the public were informed, their opinions on sentencing were not far off from the judges’.

“Sentencing is much more complex than it looks,” Prof Freiberg said.

“There is no perfect system, but we are trying to work towards it.”

Power to the people: call to give victims more rights in sentencing