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Victims of Crime: Plea Bargains, Compensation, Victim Impact Statements and Support Services

Victims of Crime: Plea Bargains, Compensation, Victim Impact Statements and Support Services

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 10/2002 by Rowena Johns
This briefing paper outlines and evaluates the range of entitlements and services available to victims of crime in New South Wales. These include the government-funded statutory victims compensation and counselling schemes; the tendering of victim impact statements in sentence proceedings; the capacity of victims to make submissions regarding whether offenders should be released on parole; the right of sexual assault victims to claim privilege against the disclosure of information revealed in the course of counselling; and various types of assistance provided by government agencies and community-based victims support groups.

Legislation affecting victims in NSW (pages 2-9)
The main provisions focusing specifically on victim entitlements are found in the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996. A Charter of Victims Rights was given formal status in the Victims Rights Act 1996 and outlines guiding principles for the treatment of victims. These are not legally enforceable but many have been adopted as policy by government departments.

Some of the legislative developments affecting victims in 2001-2002 were the introduction of industrial relations amendments to entitle victims to unpaid leave from their work to attend court, and the codification of general criteria to be taken into account at sentence, including the personal circumstances of the victim. The Victims Support and Rehabilitation Act and the Victims Rights Act are also in the process of being reviewed by the Legislation and Policy Division of the Attorney General's Department.

Victim impact statements (pages 10-20)
A victim impact statement is a document that is tendered at sentence proceedings to express the personal harm suffered by a victim or a witness as a direct result of an offence of violence, or to convey the effect of a victim's death upon their immediate family members.

Victim impact statements received legislative recognition in 1997. The relevant provisions are now found at ss 26-30 of the Crimes (Sentencing Procedure) Act 1999. The statement is optional, must be in writing, and is unsworn. The legislation distinguishes between the way that the court is to treat the impact statements of different types of victims. The court may receive and consider an impact statement from a primary victim, meaning the person against whom the offence was committed or a witness to that offence, if the court finds it appropriate to do so. The court must receive and acknowledge an impact statement from a member of a primary victim's immediate family (a 'family victim') when the primary victim has died as a direct result of the offence. But the court must not use the impact statement of a family victim in determining the punishment for the offence unless it considers this appropriate.

The Supreme Court has preferred a more restrictive use of victim impact statements than the legislation allows, repeatedly finding in homicide cases that judges should not have regard to victim impact statements by family members in formulating the sentence.

Victims compensation scheme (pages 21-35)
A statutory, government-funded victims compensation scheme was introduced in New South Wales in 1967. The maximum which the court could award had reached $20,000 by 1984. The Victims Compensation Tribunal was established in 1987 as an independent body to assess applications and make awards. The maximum claimable amount was set at $50,000 and has remained the same since. Additional amendments were passed in 1996, including the evaluation of applications by compensation assessors and the implementation of a schedule of injuries prescribing standard amounts for specific injuries. The schedule effectively precludes calculation of compensation by reference to common law principles of damages. Between 1997 and 2000 the recommendations of the Joint Select Committee on Victims Compensation influenced further legislative reform, such as modifying the categories of compensable psychological injuries.

The current compensation provisions under the Victims Support and Rehabilitation Act 1996 require an 'act of violence' to occur during the commission of the offence, and specify 3 categories of eligible victims: primary victims, secondary victims, and family victims. Applications must generally be lodged within two years of the offence. Other restrictions apply in relation to the types of injuries that are compensable; the minimum threshold for a claim; dividing compensation between multiple claimants; preventing 'double dipping' when another form of monetary entitlement is payable; and awarding sums to cover financial loss, legal costs or funeral expenses.

Approved counselling scheme (pages 35-37)
The statutory counselling scheme has operated since 1996, and was originally only available to victims who were eligible for compensation. Today, in addition to those persons who qualify as primary, secondary or family victims, counselling can be accessed by relatives of victims who died as a result of an act of violence, and by persons who are victims of an act of violence but did not sustain a compensable injury within the meaning of the Victims Support and Rehabilitation Act 1996. Relatives (encompassing 'family victims' and 'relevant family members') can initially receive up to 20 hours of counselling, with extra counselling possible on request, while other victims qualify for an intial period of two hours and for such further periods up to 20 hours as may be considered appropriate by a compensation assessor.

Sexual assault communications privilege (pages 38-43)
The sexual assault communications privilege was introduced in 1997 with the intention of preventing communications made in the course of counselling a sexual assault victim from being disclosed in court, except in specific circumstances at the discretion of the judge. The original form of the privilege created a presumption that comments made in confidence by a sexual assault victim to a counsellor, and notes of such communications, were inadmissible as evidence in a court proceeding. In 1999, the privilege was extended to cover documents produced on subpoena, and to preclude evidence of sexual assault communications from being produced in connection with preliminary criminal proceedings such as bail applications and committals. The Court of Criminal Appeal in R v Lee (2000) 50 NSWLR 289 interpreted the concept of counselling narrowly, as entailing the 'provision of expert persons skilled, by training or experience, in the treatment of mental or emotional disease or trouble.' The Government responded with the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 2002 No 13, which clarifies that the capacity to counsel sexual assault victims is not restricted to mental health professionals.

Victim participation in the parole process (pages 44-51)
Since 1996, victims who are registered on the Department of Corrective Services' Victims Register have had the statutory right to make a written submission as to whether a 'serious offender' should be released on parole. Such victims are also entitled to make submissions prior to an offender being approved for a 'low security' classification and thereby becoming eligible for work release and other forms of unsupervised external leave. On a policy basis, any registered victim, not just victims of serious offenders, are permitted to make written submissions. Under the Crimes (Administration of Sentences) Act 1999, victims could deliver a submission orally with the leave of the Parole Board but they will be able to exercise this option automatically when the Crimes (Administration of Sentences) Amendment Act 2002 No 36 commences. There is no provision for victims to make oral submissions regarding unescorted absences from custody.

Plea bargaining (pages 52-64)
Plea bargaining involves reducing or withdrawing charges in a case, in exchange for the offender agreeing to plead guilty. In 2001, an intense debate was prompted when several victims complained in the media that the prosecution had failed to consult with them sufficiently before accepting plea bargains. The Attorney General commissioned Hon. Gordon Samuels AC CVO QC to conduct a review of the plea bargaining practices of the Office of the Director of Public Prosecutions (DPP). The report of the review, released on 6 June 2002, found that the DPP's existing Prosecution Policy and Guidelines did require adequate consultation with victims and did require the charges and agreed facts to reflect the criminality of the offences. But the report referred to cases in which the guidelines were not followed, and suggested measures to reinforce the duties of prosecution officers towards victims during charge negotiations.

The Deputy Leader of the Opposition, Mr C. Hartcher MP, introduced the Crimes (Sentencing Procedure) Amendment (Victims' Rights and Plea Bargaining) Bill 2002 in the Legislative Assembly on 20 June 2002. The Bill proposes a maximum discount of 10% for pleading guilty and states that prosecutors must seek the views of victims about plea bargains prior to sentencing. Judges would also be required to disclose in court the details of the prosecution's decision to accept a plea bargain.

Government services for victims (pages 65-76)
The Victims Services branch of the Attorney General's Department is the main provider of government assistance to victims. It comprises the Victims Compensation Tribunal (VCT), Victims Advisory Board (VAB) and the Victims of Crime Bureau (VCB), which are all statutory agencies. The VCT was established in 1987 as an independent body to assess applications for victims compensation. Today it determines only selected applications on referral or appeal. The VCB and VAB were both created by the Victims Rights Act 1996. The functions of the VCB include to oversee the implementation of the Charter of Victims Rights and administer the approved counselling scheme. The VAB consists of up to 10 Members who are drawn from government departments and community organisations to consider issues and policies on victims of crime, advise the Attorney General, and contribute to law reform.

Some statutory bodies and government departments which serve a broader purpose also undertake activities for the benefit of victims. For example, the Department of Corrective Services conducts victim-offender conferencing and mediation, gives grants to victims organisations using funds from inmate labour, and maintains the Victims Register to advise victims about the release of offenders and other relevant developments. The Police Service employs liaison officers who can assist victims with special needs, while the Office of the Director of Public Prosecutions has a Witness Assistance Service which provides information and court support to victims.

Victims support groups (pages 77-82)
Community-based victims organisations gained prominence in New South Wales from the 1980s. Some of the main groups operating today are the Victims of Crime Assistance League, the Homicide Victims Support Group, and Enough is Enough. All were founded by family members of deceased victims. These groups supply information about victims entitlements, coping with grief or the effects of crime, and understanding criminal justice procedures. Practical assistance is also offered such as counselling and accompanying victims to court. Another objective of victims groups is raising awareness, for example by holding public meetings and delivering presentations to students and prison inmates. In recent years, victims have campaigned actively for law reform, particularly to promote greater acknowledgment of their perspective in sentencing, plea bargaining and the release of offenders on parole.