Abstract

Voltaire remarked that ‘the longer we dwell on our misfortunes, the greater their power to harm us.’  Sadly, for many victims of crime in Victoria this reflection is painfully true.  Victims of crime, especially violent crime, can be plagued by feelings of confusion, danger and trauma; it is important, therefore, for victims to receive support and redress soon after the crime itself.  Bureaucratic delays, though, can turn a momentary crime into life-long trauma.    First, access to counselling services can be delayed by up to five months.  Fortunately, we have good reason to believe this can be easily fixed by means of administrative reform.  Secondly, redress within the criminal justice system can take months and even years to occur – should it happen at all.  Reform in this area, however, is restricted by the inevitable tension between due process and the desire of victims to see offenders punished.

The status quo

In Victoria a number of programs already exist in order to support and assist victims.  These include SupportLink, a trial program funded by Victoria Police and non-profit group SupportLink Australia.  Although it is available to any vulnerable person seeking assistance, a large portion of its users – 40% – are victims of crime[1].  Another program is the Victims Assistance Counselling Program in Bendigo, run by St Luke’s Anglicare.  The program provides information and material support as well as counselling[2].

Much work for the rights of victims, as outlined in the Victorian Victims’ Charter, is done by the Victims Support Agency, which runs on a model adopted in 2009[3].  They run the Victims of Crime Helpline, maintain the Victims Register and provide support services through nine community agencies and health services.  Its counselling services are offered in 31 locations across the state, and are available to victims of kidnapping, robbery, sexual assault, assault, rape and homicide.  In 2010 the Agency assisted 9662 individuals (25% of all those eligible to receive such support in Victoria)[4].  The Agency runs a Victims Register, which ensures that victims of crime are informed of the offender’s sentence, parole hearings and the possible release date.

The rights of victims within the criminal justice system have also been affected recently by the direction of the Baillieu government.  The state government is committed to introduce mandatory sentencing to bring sentencing in line with community expectations; it is hoped that this will limit the cases in which victims feel that obviously inadequate punishments have been imposed. Nevertheless the consequences that this will have on judicial discretion need to be carefully considered.  Moreover the state government has already passed COAG-approved legislation reforming double jeopardy.  Victims’ groups have largely supported this move as it opens up more avenues for victims to see the conviction of offenders.  The Victorian Attorney General, Robert Clark, has also foreshadowed a repeal of suspended sentencing laws[5].

The Victims Register

Fewer than 1% of victims enrol on the Victims Register – this may be due to trauma, excessive paperwork or the fact that they do not even know the Register exists[6].  Some people, have, therefore, suggested that the government pass legislation enforcing automatic registration.  This, however, might infringe upon the right of victims to become as little or as much involved in cases as they desire.

Criticism of sentencing

Another issue sometimes flagged by victims’ advocates is sentencing.  Some perceive current laws as being too lenient.  The co-founder of Support after Murder in Victoria, Bruce Kimball, notes that “at the moment [he]  can break into the neighbour’s house and bash her up and [he] might get 18 months and only spend three months in jail.”[7]  A report released by the Victorian Sentencing Advisory Council found in a poll of 1200 people that only 28% were satisfied with court decisions, and 63% thought judges were out of touch[8].  People who had been victims of crime were more likely than the average to be dissatisfied.

In order to deal with this, organisations such as the Crime Victims Support Association have proposed judicial reform, including keeping judges electorally accountable, reforming the current understanding of exclusionary evidence, abolishing judicial immunity and giving juries the ability to set sentencing[9]. Such reform is not totally without precedent.  We have seen examples of such systems in some American states, but it is certainly radical change.  Most legal organisations, such as the Law Institute of Victoria, argue they would undermine the impartiality of the judiciary.

More personal outreach

The Victorian Supreme Court Justice Marilyn Warren has suggested that judges should personally explain the reasons for their decision to victims and their families after a sentence has been given[10].  This suggestion has been welcomed by not only the Law Institute of Victoria, but also the Crime Victims Support Association.

The importance of counselling

Oh, the comfort, the inexpressible comfort of feeling safe with a person; having neither to weigh thoughts nor to measure words but to pour them all out, just as it is, chaff and grain together, knowing that a faithful hand will take and sift them, keeping what is worth keeping, and then, with the breath of kindness, blow the rest away – George Eliot

For many victims struggling in the aftermath of a crime of a person, counselling can provide the help they need to move on and rebuild their life.  Yet whilst these services exist, they are not flawless.  The Victorian Auditor-General, Des Pearson, believes that whilst the Victims Support Agency generally fulfils its objectives well, it does not sufficiently evaluate the work of the community organisations it is partnered with[11].  Sometimes these organisations keep incomplete or poorly managed records, jeopardising the security of their clients’ personal information.  Another criticism has been the waiting time, up to five months in extraordinary cases.  He also found that the quality of counselling services varied.

Potential reform could be made within the Justice Department.  The Department could provide more directives and guidance to partnered counselling services upon the type of care expected, and bureaucratic assistance in managing wait lists.  The Department’s acting Secretary, Tony Leech, in 2011 confirmed that the Department would implement these recommendations[12].

The difficulties of redress through the criminal justice system

A large obstacle to some victims achieving justice is the fact that only a small minority receive actual vindication through the criminal justice system.  In Australia fewer than 20% of sex assault victims report the offence to the police.  Only some of these complaints result in a prosecution.  And out of all cases which go to trial, only 38% result in a conviction (compared to 50% only a few years ago)[13].   Ultimately fewer than 2% of sex assault victims achieve justice through the conviction of the offender.

It is unrealistic, therefore, to expect that the primary way victims can achieve redress should be through the punishment of the offender.  Some victims can even be reluctant for the offender to be prosecuted.  Victims should be able to consider alternatives.

One reform Victoria could introduce is conferencing, as seen in South Australia.  In conferencing, the victim, or the victim’s family, and the offender agree to come together for a meeting.  Chaired by a qualified individual, the meeting is an opportunity for the offender to admit their wrongdoing and agree to make reparation, and for the victim to explain how they have been hurt by the crime.  This reform has been successful in South Australia, as supported by the research of Professor Kathleen Daly[14]; it gives victims an opportunity to express how they have been affected by the crime, confronting the offender with the reality of what they have done.  Whilst this may seem too lenient, it can achieve real outcomes where a prosecution would be fruitless.  It can encourage the offender to admit their guilt earlier.  Situations in which conferencing could be appropriate could include those where[15]:

1. The victim does not wish for a prosecution to go ahead.
2. A successful prosecution is extremely unlikely.
3. A sentence has not yet been given to an offender who has already pleaded guilty.

A further issue is the lengthiness of prosecutions.  Not only can they be ultimately futile, but the process itself is marathon-like.  The lengthiness of prosecutions is exacerbated, according to some, by committal hearings, which are supposed to identify the cases which have a realistic chance of resulting in a conviction.  Unfortunately, though, these hearings are often as extensive as the actual trial; meaning that the process by the end is twice as long as it could have been.  So another potential reform is the abolition of committal hearings, which is currently being considered by the state government.  Former Director of Public Prosecutions, Jeremy Rapke QC, argues that not only do they waste resources, but they delay a final outcome for the victim[16].  It may, however, not be entirely necessary to abolish them.  Reform could take place by changing the directives issued to committal hearings.  If they only had to determine that a prosecution is likely to be successful, rather than actually going to be successful, this would allow clear-cut cases to come to a close for victims more quickly.

A further exacerbating factor claimed by some victims’ groups is the perceived willingness of legal representatives to prolong cases for the benefit of their accused clients. This could be addressed by limiting trials to more specific issues and more judicial intervention in the conduct of trials.

Conclusion

Whilst in general Victoria offers wide-ranging and broadly available services to victims of crime, and boasts a criminal justice system which is trying to adapt itself to community expectations and the rights of victims, the trauma of victims can still be prolonged by bureaucratic and systemic delays.  Victoria should introduce trials of conferencing, reform of committal hearings and trials hearings, and more government oversight into the conduct of some victim support services.

Xavier Bisits

About the author