This article explores the development of victim rights in sentencing through a comparative analysis of the rights of family victims in homicide sentencing proceedings across Australia, the United States, England and Wales and Canada. Of the various rights afforded to victims of crime, the use of family victim impact evidence in the sentencing of homicide offenders has proven most contentious, with various courts grappling with the weight such evidence ought to play in sentencing proceedings. In homicide cases where the family (...) of the deceased victim submits a statement, all Australian and international jurisdictions except the Australian state of New South Wales (NSW) have resolved to allow the consideration of such statements on the basis inter alia that family victims may incur harms potentially relevant to the sentencing process. New South Wales continues to reject such evidence on the basis that family statements may value the deceased’s life above that of another. This article considers the status of family impact statements in homicide cases by examining the treatment of family victims in sentencing law on an international basis, with particular focus on pilot schemes in England and Wales, where family victims have been provided personal counsel at public expense, for use in homicide cases. (shrink)

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the (...) harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed. (shrink)