Victim appeal: how to address manifestly inadequate sentences

Courts Victims of crimes Sentencing Australia
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Victim appeal is an innovative reform designed to:

  • Increase public confidence in the judiciary; and
  • Increase the satisfaction of victims of crime with the criminal justice process.

Victim appeal would give victims of crime the right to instruct the Director of Public Prosecutions (DPP) to seek leave to appeal against a sentence handed down by a District or County Court or Supreme Court.

This right would be in addition to the existing discretion of the Director Public Prosecution or, in some states, the Attorney-General, to appeal against sentences.

Unlike Crown appeals in most states, victim appeals would go to a leave hearing at the Court of Appeal, which would determine whether the appeal can proceed.

The DPP would advise the victim of the chances of a successful appeal and bear the costs of the appeal.

Australians have consistently reported low confidence in the judiciary.

Public confidence in the judiciary is driven by:

  • The perception of leniency; and
  • Access to information about crime trends and specific cases.

Over the past decade and across jurisdictions, sentencing patterns in Australia have been stable. For serious crimes like homicide, assault, and sexual assault, judges have sentenced offenders to prison at approximately the same rate and for the same periods of time.

However, over the same period, the number of Crown appeals against ‘manifestly inadequate’ sentences has fallen. In 2008-09, there were 138 such appeals in the mainland states. In 2016- 17, this had fallen to 85.

This is despite the fact that these types of rare, sensational cases, in which judges fail to apply community standards continue to occur and to attract disproportionate media attention. This media attention in turn damages the reputation of the judiciary.

Victim appeal provides a new mechanism for correcting these rare cases. Its introduction will help mitigate their effect on the public’s confidence in the judiciary.

Victim appeal also builds upon the existing practice of allowing victims to read Victim Impact Statements at sentencing hearings. This practice has been shown to have some therapeutic effect for victims. However, many victims continue to report feeling a lack of agency in the system. Victim appeal provides victims with a real and consequential decision to make as part of the criminal justice process.

Lastly, victim appeal should be preferred to more dramatic reforms like mandatory sentencing, which increases the risk of disproportionately severe sentences, and giving victims separate representation in criminal trials, which undermines our traditional adversarial criminal justice system.


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