Homicide matters and victim impact evidence : a new sentencing paradigm in NSW?

Victim impact statements (VISs) from family victims that provide details of the impact of the deceased's death upon members of the deceased's family are a well-established feature of the sentencing of homicide offenders in NSW. Yet, whilst the court accepts and acknowledges these VISs, the NSW Supreme Court has declined to take such evidence into account for the purposes of determining penalty on the basis that it is not appropriate to do so. However, given recent amendments to the NSW sentencing legislation requiring recognition of, inter alia, the harm caused to the victim and the community, the NSW Court of Criminal Appeal has indicated that it may be time to reconsider the role of VISs from family victims in sentencing. This paper begins with an analysis of the new sentencing provisions to determine whether in fact the law has changed and there is now a statutory imperative that VISs from family victims should be taken into account in the formulation of penalty in homicide matters. I find that there is no compelling evidence to suggest that the law has changed and in fact from a policy perspective, such a change would be problematic for the government. Studies have shown that VISs generally do not increase the penalties imposed and research indicates that victims who understand the purpose of their VIS is to influence penalty, are disappointed when the sentence imposed does not match their expectations. In any event, the legislation also requires that a sentencing court need only take account of a VIS if it is appropriate to do so and the remainder of the paper evaluates this issue in the light of the conceptualisation of harm sustained by family victims, variable sentencing rules according to the status of the victim and particular procedural and evidential issues regarding the use of VISs.