Give victims the right to appeal soft sentences

This article originally appeared in the Herald-Sun on 30 October 2018.

Earlier this year, two women were convicted of assaulting a paramedic but avoided prison after a judge found there were special circumstances justifying a more lenient punishment. The Victorian public were outraged.

Although the Government tightened the laws around offences against emergency services workers, the public’s confidence in the courts had already been shaken. This is a problem because Australians have consistently reported low confidence in the courts, especially their protection of victims’ interests.

Any one of us could be a victim of crime, and if that happens, we need to know that the standards applied by the courts will be in line with our community values. We need to trust that the courts have the same idea of justice that we have.

To hold judges to this expectation, when a sentence for a serious crime is unjustly lenient, victims should be able to direct the Director of Public Prosecutions (DPP) to seek leave to appeal the sentence.

The DPP is responsible for the prosecution of serious offences in the County and Supreme Courts. It reviews all sentences handed down in these cases. The DPP is also committed to consulting with victims throughout the prosecution process. But victims have no power and there is no way to hold prosecutors to this commitment.

Simply formalising the right of victims to be consulted by the DPP would not be effective. It might even be more onerous for victims. In South Australia, the Victims Rights Commissioner has had to pay for legal counsel for victims so they can defend their rights in court.

By contrast, victim appeal would slightly adjust the power balance between the prosecutor and the victim. After reviewing a sentence and deciding whether or not to appeal, the DPP would brief victims about its reasoning and the chances of an appeal succeeding. If victims are not satisfied with this advice, they would be able to direct the DPP to appeal anyway.

The aim would not necessarily be to increase the harshness of sentences. It would be to reassure the public about the reasoning behind the sentencing process.

In this way, victim appeal would increase public confidence in the courts. Judges and prosecutors would have to attend to victims’ interest because failing to do so might lead to a victim appeal. The reform would also increase the satisfaction of victims with the criminal justice process by making sure that their concerns are given a proper hearing.

The main risk is that the reform would lead to a flood of appeals, at great cost to the taxpayer. There are a number of factors that lessen this risk.

First, this concern underestimates how difficult participation in the criminal justice process can be for victims. Prosecutions of serious offences can take many months. It is unlikely that victims would prolong this experience without careful consideration.

Secondly, appeals activated by victims would lead to an application for leave to appeal. This means there would be a preliminary hearing, at which the Court of Appeal could exclude frivolous appeals. As an additional benefit, we would have a public record of victims’ satisfaction—if there were many leave hearings, this would indicate a real problem.

Thirdly, there is significant scope for more appeals against sentence. In 2016-17, the DPP made 18 such appeals, down from 43 in 2008-09. About one percent of convictions for serious offences are appealed. There is a good reason for appeals to be rare. The legal standard that must be met is very high: the original sentence must have been so “manifestly inadequate” that it was unavailable to the judge under the law. But all else being equal, there is no reason for appeals to be becoming rarer.

Victim appeal may seem counterintuitive but it is far less radical than other proposed solutions to this problem.

For example, mandatory sentencing laws interfere with the historical independence of the courts. They also increase the possibility of unjustly harsh sentences, which is the flipside of the problem we want to correct. Most importantly, mandatory sentencing tells the public that we simply can never expect to have a judiciary we can trust to represent our values.

Similarly, it would also be an overreaction to give victims more rights in court. Prosecutions are run by the state in recognition of the fact that crime harms not only victims but society itself. Taken too far, victims’ rights entails a revolution of our traditional adversarial justice system.

We do not need to overhaul the system, we need to improve its ability to correct its mistakes. Victorians deserve to know they can trust the courts to apply community standards and deliver justice for victims. Victim appeal would be a modest procedural change with a powerful positive effect on how victims and the community interact with and view the criminal justice system.