Victims' Mitigating Views in Sentencing Decisions: A Comparative Analysis

Abstract

This article explores the arguments for and against victims" mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims" recommendations as to penalty must be avoided.However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims request a more lenient sentence. Several case studies from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court taken proper cognisance of these comparative legal developments, it would, at very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process.

Concessions on custodial sentences: Learning from the New Zealand approach to restorative justice

“…10 Van der Merwe and Skelton see no reason why custodial sentences should not co-exist along with RJ, contending that the views of victims need to be given due weight by ensuring, among others, that RJ is blended with a 'just deserts' approach. 11 Du Toit and Nkomo discuss the role that congregations can play in advancing RJ. 12 Although they do not discuss the issue from a criminal justice perspective, the points they advance are relevant.…”

Restorative justice by means of concessions on custodial sentences: The New Zealand approach and possible lessons for South Africa

“…10 Van der Merwe and Skelton see no reason why custodial sentences should not co-exist along with RJ, contending that the views of victims need to be given due weight by ensuring, among others, that RJ is blended with a 'just deserts' approach. 11 Du Toit and Nkomo discuss the role that congregations can play in advancing RJ. 12 Although they do not discuss the issue from a criminal justice perspective, the points they advance are relevant.…”

'You Can't Stop the Bell from Ringing.' Protean, Unpredictable, and Persisting: The Victim Impact Statement in the Context of Sexually Assaulted Women.

“…The VIS has been considered the most significant victim-oriented reform attributable to the crime victims' rights movement ). The VIS is a written statement that contains subjective details of the physical, psychological, and financial harms that a victim has experienced as a result of an act for which an adult or youth offender has been found or has pled guilty van der Merwe & Skelton, 2014). In Canada the right to submit a VIS is generally extended beyond the direct victim to the spouse and family of a homicide victim, the parent or guardian of a minor victim, and the guardian or representative of an incompetent or incapacitated victim (Criminal Code RSC, 1985 c C-46).…”

“…The VIS has wildly surpassed Rowland's vision of a few brief paragraphs of victim impact information in the presentence report (Justice Solutions, 2003). In less than 40 years the VIS has become a participatory option available to victims in justice systems across common law jurisdictions such as Australia, Canada, South Africa, and England, as well as across some civil law jurisdictions including Belgium, Estonia, Finland, the Netherlands, Poland, and Romania (Project Victims in Europe, 2009;van der Merwe & Skelton, 2014). Each of these various schemes permits victims to articulate the harm they have experienced, although the nomenclature as well as the precise form and function of the statement vary among them .…”