Accommodating Justice: an exploratory study of structures and processes that shape victim participation and the Presentation of victim impact statements in the sentencing of homicide offenders in the NSW Supreme Court

Abstract

During the last two decades in response to perceived victim dissatisfaction with criminal justice processes, legislatures in various common law jurisdictions have introduced contentious changes to established sentencing practices that enable crime victims to participate in sentencing hearings. These changes have generated uncertainty in relation to the proper function of the sentencing hearing and raised concerns that victim participation, especially by oral victim impact statements (VISs), is inconsistent with established legal values, detrimental to the offender's entitlement to a fair hearing and harmful to the integrity of the legal proceedings.

This thesis is a qualitative study that explores the mechanisms, structures and processes that shape and contextualise participation by family victims in the sentencing of homicide offenders in the NSW Supreme Court. To do so, it draws on an analysis of data gathered from a variety of sources including: primary legal materials; observation of 18 sentencing hearings; interviews with 14 family victims; and 24 VISs read aloud to the court.

The study has generated significant insight into victim participation in the sentencing of homicide offenders in a common law jurisdiction. It found that the expressive capacities of VISs, though more limited than claimed, are particularly significant for both victims and the court. It also found that the victim participation observed did not interfere with offenders’ legal entitlements and enhanced the legitimacy of the legal processes. Key factors associated with this outcome are the quality of inter-personal treatment accorded to family victims in the courtroom and the structures and processes that manage emotionality associated with victim participation.

The key contributions of this thesis to the literature are: the use of a variety of data and modes of analysis to produce a novel and rich picture of victim participation in sentencing; courtroom observation, a form of empirical research little used by researchers in the area; unique narrative analysis of VISs; and extension of knowledge and the debate with regard to the expressive capacities of VISs, the management of emotions and the role of the sentencing court as a community forum dealing with the aftermath of homicide.