'Victim Impact Statements' - to finally have an impact
The family of homicide victims would have a say in the killer's sentence under controversial new laws backed by Attorney-General Greg Smith and approved by the NSW cabinet.
A senior government source confirmed on Thursday that cabinet had approved new laws allowing judges to consider family victim impact statements when deciding the appropriate sentence in murder and manslaughter cases.
The government had ''recently consulted with victims' groups on the issue and cabinet has approved that legislation be introduced'', the source said.
The proposed laws make good on a 2011 promise by Mr Smith to legislate so that courts paid more than ''lip service'' to the voices of family members of murder victims.
It would mark a departure from the legal principle that all victims are equal and may result in harsher sentences in cases where a murder victim has a grieving family who can deliver a statement to the court.
Mr Smith's office met with Ralph Kelly, the father of one-punch victim Thomas, and a number of victim support groups in February to discuss the proposed change.
Mr Kelly was devastated the judge was unable to take into account the victim impact statements he and his wife gave in sentencing Thomas' killer, Kieran Loveridge, for manslaughter.
Loveridge, who was allowed to tender more than a dozen references, was sentenced last November to a maximum of seven years in jail for the fatal punch but could be freed on parole in four years.
Statements written by a primary victim can already be taken account in NSW in sentencing offenders for crimes that do not result in death, such as aggravated sexual assault.
It is up to the judge to determine whether the statement should be received and the weight to be given to it in deciding the sentence.
Existing laws would appear to allow judges to take into account statements of the victim's family in murder cases, which must be received by the court.
But the effect of the 1998 Court of Criminal Appeal decision known as Previtera, which reiterated the principle that all victims are equal, meant that courts regarded the statements as an irrelevant consideration in the sentencing process.
The court said in that case it was ''inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in one case than in the other''.
In a separate Court of Criminal Appeal decision in 1999, Justice Michael Adams said: ''The idea that it is more serious or more culpable to kill someone who has or is surrounded by a loving and grieving family than someone who is alone is offensive to our notions of equality before the law.''
It means the statements are currently used in NSW only as a means of providing ''emotional catharsis''.
The O'Farrell government has already amended the law in ways that depart from the principle that every victim is equal.
People who murder on-duty police officers face a mandatory life sentence, which does not apply in other cases.
Victims of Crime Assistance League vice-president Howard Brown said taking VISs into account would likely lead to an increased sentence in homicide cases.
In his experience, the sentence was higher in non-homicide cases where a VIS was given than in cases with very similar facts but no VIS.
He said issues to be considered included what should be done if the victim's family elected not to give a VIS, or there was no family alive to give a VIS.
In June 2011, when Mr Smith sought feedback on his original proposal, the NSW Bar Association said it did not oppose the move but ''the option should be available for the author of such a statement to be the subject of cross-examination''.
This would bring VIS's into line with other evidence tendered to support the case for a harsher sentence, but it could increase the trauma for victims.
The NSW Law Society opposed the changes in 2011, saying VISs should ''remain primarily as a therapeutic, cathartic process for victims''.
''Significant difficulties would arise in NSW if a VIS were to be treated as material affecting the sentence otherwise properly imposed,'' the Law Society said at the time. ''There would need to be considerable extra time and trouble taken to settle the VIS by the prosecution, ensuring that any factual assertions were capable of proof if necessary, and that assertions of psychological or medical impact, for example, could be supported by expert evidence. Sentencing proceedings would become longer and more complex than they already are.''
A spokeswoman for Mr Smith said on Thursday: ''We will not comment on matters that may or may not be before cabinet.''
