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Booth, Tracey --- "Crime Victims and Sentencing: Reflections on Borthwick" [2011] UTSLRS 6; (2011) 36(4) Alternative Law Journal

Last Updated: 16 May 2017

REFLECTIONS ON BORTHWICK: THE INTEGRATION OF CRIME VICTIMS IN SENTENCING AND THE REQUIREMENT OF FAIRNESS

Abstract
Integrating victims and their victim impact statements in sentencing proceedings is a contemporary challenge for the court. It is argued that the requirement of fairness means that the sentencing court should consider and respond to the interests and concerns of both the defendant and the victim.

INTRODUCTION
Incorporation of victim participation in the sentencing process through victim impact statements (VISs) has been a prominent feature of penal policy in Australian jurisdictions for more than two decades. VISs are mechanisms designed to provide victims with a voice in the hearing and space in which to express their feelings about the impact of the crime. While research suggests that VISs have generally had little impact on sentencing outcomes or patterns more generally, VISs remain a contentious feature of contemporary criminal justice.[1] In particular, the integration of victims in courtroom proceedings is emerging as a challenging issue for the court. Questions are raised about the role of VISs in an adversarial legal framework and the requirement of fairness in the conduct of the proceedings. Fairness is a ‘core value in the administration of justice’ and is usually associated with the defendant’s right to a fair hearing.[2] Nonetheless, the High Court has made it clear that the requirement extends to the interests of all parties to the matter as well as to victims and the community at large.[3]

The distress and anger expressed by victims in relation to their experiences in the sentencing court in recent cases in Victoria[4] and South Australia[5] have received widespread media coverage. This article reflects on the handling of the VISs in the Victorian case of Borthwick and argues that the requirement of fairness means that the sentencing court should consider and respond to the interests and concerns of both the defendant and the victim. To do so does not detract from the defendant’s entitlements; instead the fairness of the hearing overall will be enhanced.

BORTHWICK

In 2010, Leon Borthwick was charged with murder and convicted at trial of the manslaughter of Mark Zimmer in Victoria. The Sentencing Act 1991 (Vic) enabled members of the deceased’s family (the ‘family victims’) to submit VISs to the sentencing court providing details of “the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence”.[6] According to s 95A(1) the purpose of VISs is to assist the court in determining sentence.

At Borthwick’s plea hearing in September, 2010, the family victims submitted VISs to the court wanting to read them aloud.[7] The defence objected to content of the statements because sections addressed matters other than the impact of the offence on the family as required by law and were thus irrelevant and inadmissible. The objection was upheld and the court engaged in a very lengthy and public process of editing the statements. Amended versions were then handed back to the family victims who appeared appalled at the outcome.[8] Further conflict occurred in the sentencing hearing in December when the family victims were not permitted to sit in the body of the courtroom with the family of the defendant and were relegated to the public gallery upstairs.

Members of the deceased’s family subsequently gave media interviews about their distress and anger at their experiences in the courtroom. In their view, the family had been treated unfairly. Three issues have been identified as the key sources of the conflict: the contentious nature of the VISs, lack of notice and preparation for the objections and the treatment of the family victims in the process.

The contentious nature of the victim impact statements
Sections of the VISs published after the hearing contained inadmissible material. The deceased’s father told the Law Report on Radio National about one deleted section of his VIS: ‘Well ... I wrote in my statement that Leon Borthwick brutally ran down and killed my son, and that was too harsh and I'm not allowed to say that he brutally ran down and killed my son’.[9] During an interview on Radio 3AW, the deceased’s sister read out three parts of her statement that had been deleted.[10] In summary these sections covered the following matters:

  1. The “killer tormented” her brother months before this death showing an “overwhelming aggression”. Her brother “lived in constant fear” because it was only “a matter of time before Leon found a way to kill him”.
  2. Her brother was subjected to “months of harassment, bullying, attacks with weapons, stalking, threats to kill”. In response her brother “did nothing”, he was “blameless”, “a product of his innocent nature”. “Leon should take responsibility for his actions.”
  3. There “was one truth, Mr Zimmer is dead and he died at the hands of Leon Borthwick”.


While it is evident that these sections do not relate to the impact of the death on the family and are therefore inadmissible, interestingly the Prosecutor saw nothing untoward about the victim impact evidence. She said:

I didn't see anything out there, so to speak, in their victim impact statements. I mean most defence don't take the point. They might acknowledge that there are words in a victim impact statement...that technically might be objectionable. But it's often said to the judge that from defence's point of view, that there are inadmissible parts, '...but we're not taking the point, Your Honour, but we ask Your Honour to ignore those parts or give little weight to those parts'. That's been the usual practice. That wasn't what happened here.[11]

This more flexible approach to the content of VISs reflects the position that has been advocated by the Victorian courts. In Dowlan,[12] the Victorian Court of Appeal said that making rulings with respect to each part of the statements subject to objection was not ‘necessary, or even desirable’. Further,

It would be quite destructive of the purpose of these statements if their reception in evidence were surrounded and confined by the sorts of procedural rules applicable to the treatment of witness statements in commercial cases. The reception of victim impact statements must, it seems to me, be approached by sentencing judges with a degree of flexibility; subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter. If objection is taken, on a matter of substance, to any part of the statement, the judge should either rule it inadmissible or make it clear, during the plea or in sentencing reasons, that no reliance would be, or was being, placed on that part of the statement.
Thus, it appears that the ‘usual practice’ has been to rely on the sentencing judge to disregard those parts of the VIS that are inadmissible when formulating the appropriate penalty. This practice however had developed in the context of the submission of written VISs but circumstances in Borthwick differed because the family victims also wanted to read their VISs aloud to the court. According to media reports, the defence had sought to avoid this irrelevant material becoming part of the public record as it inevitably would have done if the VISs were read aloud and unchanged in open court.

Lack of Notice
Although the Crown had provided the defence with copies of the VISs prior to the hearing, the defence did not object to content of the VISs until the hearing. The Crown Prosecutor argued that this lack of notice was unusual:

[n]ormally what would happen... is that usually defence will ring me, the barrister, or maybe my instructor and say, 'Look, not too sure about this bit. Do you mind?' you know, really some sensitivity in the way that it's done. That didn't occur here.[13]
Consequently the deceased’s family was not warned about the contentious issues in their statements and came to the hearing unprepared for what occurred. The deceased’s father told Radio National:

[we] prepared our victims impact statement well in advance. We submitted it to the prosecution and the defence. So we came to court today expecting to have our day in court and to be able to read our impact statements in front of the court; only to hear that the defence had objections to our statements and that the defence wanted to edit our statements, and ...that it was their right to edit our statements. We couldn't tell the court how we felt, it was up to the defence to be able to edit how we felt.[14]
The Treatment of the Family Victims

The defence did not identify which parts of the statements were contentious or why. Nor did the court clarify the situation for them while it spent approximately 90 minutes reviewing the objections, editing and deleting ‘inadmissible’ material in the VISs in open court. The family victims looked on as bystanders angry that they were excluded from this process of review. When the editing process was completed, the VISs were returned to the family victims. The process took so long however that the hearing was adjourned part heard and victims could not read their edited VISs until December. No explanation in relation to what was deleted or the final edited versions was forthcoming from the court other than the judge reportedly remarking: ‘Of course victims can feel these things, but as we all know the law governs what can be in a victim impact statement.’[15] The deceased’s family was distressed and angered that significant parts of their statements had been deleted and so publicly without explanation. In the deceased’s father’s opinion ‘to have it torn apart in front of us at the court...they just didn’t care, they were heartless...and then they expect us to be quiet about it.’[16]

Matters were exacerbated for the family victims when the judge delivered Borthwicks’ sentence in December. Without notice, court staff decided that the deceased’s family should be separated from the defendant’s family while the judge read her sentencing judgment. Radio National reported that the Supreme Court said:

[t]here had been a number of disruptive incidents during the trial involving the parties both within and outside the court. And the decision to separate the families was designed to prevent a repetition of earlier incidents. The court says this decision was not made lightly.[17]
On their arrival at court, the Zimmer family was directed to the public gallery upstairs rather than in the courtroom where they had been on previous occasions whilst the defendant’s family was permitted to remain in the main gallery of the courtroom. Visibility and audibility of the proceedings in the public gallery were poor and the deceased’s father described it ‘like watching [the proceedings] from the outside’. The deceased’s sister, having arrived after her parents, refused to sit in the public gallery and her ensuing argument with court staff was heard in the courtroom. She said later: ‘I was manhandled by the court staff, told to leave, I couldn’t even cry...before I was kicked out like the piece of trash that they think we are.’[18] In the end, the deceased’s sister left the court rather than watch the proceedings from the public gallery. The Crown Prosecutor was unhappy about the court’s decision: ‘The prisoner's parents were in the body of the court, and who dictates that they should be the ones that are allowed there? I think it was most unfair’.[19]

THE RESPONSE OF THE COURT

Calls to review the handling of VISs in the courtroom followed extensive media coverage of the family’s experiences. As a result, a new practice direction for sentencing hearings in the Victorian Supreme Court commenced in May 2011. [20] It provides that the Crown shall supply the defence with copies of VISs at least 10 days before the hearing and notify the defence whether the VISs are to be read aloud to the court. In turn the defence will notify the Crown of any points of contention in those statements and, in such cases both parties are expected to confer prior to the sentencing hearing. The Crown will also inform the family about “the process relating to the determination of an issue of admissibility of their victim impact statement”.[21] The practice direction therefore explicitly addresses one of the key issues identified namely, lack of notice in relation to objections to VISs. In future the defence will be expected to scrutinise the VISs as they come to hand and give the Prosecution notice of any concerns. If there are any contentious issues in the statements, the parties will discuss these in advance of the hearing.

Although not expressly stated, the prosecution would also have to confer with the victims in relation to any points of contention, particularly if the defence required changes to be made to the statements. Thus, the family victims would also have notice of the objections. Prosecutorial guidelines make it clear that it is the victim who is responsible for the preparation of a VIS and the prosecutor is not required “to vet or edit the Victim Impact Statement”.[22] It is the view of the Victorian Director of Public Prosecutions that the admissibility or otherwise of the whole or sections of a VIS is “primarily the responsibility of the sentencing judge”. [23] If the victim does not want to make the changes as directed, then presumably formal objections would be made at the hearing and the matter dealt with by the court.

If there are indications that discussion of the issues in court could be problematic and ‘impact on the conduct of the plea’ then the parties might request or the judge direct that a preliminary hearing is conducted on these contested issues.[24] In this context, “impact on the plea” mostly likely refers to a situation such as arose in Borthwick where the handling of objections to the VISs could produce tension and conflict in the proceedings and derogate from the integrity of the hearing. Given the complaints of the deceased’s family in Borthwick, it is striking however that the practice direction does not address the inter-personal treatment of victims in the courtroom.

FAMILY VICTIMS AND THE REQUIREMENT OF FAIRNESS

The treatment that the deceased’s family received in the hearings was remarkable for its lack of sensitivity and was a major source of the ensuing conflict both inside and outside the courtroom. It has been said that the distress of family victims is an “underlying condition of their situation” that “must be borne in mind” because it will shape and permeate “almost all their responses and any checks, slights and obstacles would rankle in proportion”.[25] Here, the legal professionals had had ample opportunity to observe the distress and anger of the deceased’s family during the trial and sentencing hearings which by their nature are frequently volatile. In Borthwick however, it appears the court was not responsive to the ‘affective state’ of the family victims during the sentencing process.

Adversarial norms shape both the topography of the courtroom and the form and practice of the legal proceedings. The hearing is shaped by two opposing and partisan parties – the Crown (represented by the prosecution) and the defendant -and managed by an independent and impartial sentencing judge who determines the penalty. Being parties, the Crown and the defendant have legal ‘standing’ to: identify the issues in dispute, determine the evidence and make penalty submissions. Family victims are not parties and cannot participate in these processes. Further as non-parties, they are physically excluded from the conduct of the hearing. The adversarial form of the hearing configures the courtroom space into a series of clearly demarcated and hierarchical zones.[26] The business of the hearing – taking evidence and making submissions – occurs in the ‘central performance zone’ of the courtroom. Aside from necessary court staff, attendance in this zone is restricted to the parties and the judge during the hearing; ‘outsiders’ many only enter by invitation. Thus family victims assume the role of bystanders to the hearing despite the fact that the death of their family member is a central element of the homicide offence and they have sustained loss as a result.

These adversarial norms shaped the sentencing hearings in Borthwick. As non-parties, the deceased’s family were practically and physically excluded from the process. The focus of the hearing was evidence relevant to penalty and the conduct of a fair hearing. The court did not have to inform the family of the nature of the objections nor consult them in relation to amendment of their statements.

The principle of a fair trial or the requirement of fairness is fundamental and extends to virtually every aspect of legal proceedings. What is unfair is developed inductively on a case by case basis and involves an ‘undesirably, but unavoidably, large content of essentially intuitive judgment’.[27] It is also a dynamic principle, adapting to and reflecting changing community perceptions and standards. While the principle of fairness is generally associated with the protection of the defendant’s rights, it also extends to the interests of all parties to the matter as well as to victims and the community at large.[28]

As the defendant, Borthwick had a well established interest in a fair hearing. The objections to the VISs had raised significant issues for the court in that the content of the VISs could introduce potentially irrelevant and prejudicial evidence. Fairness required that the defendant be heard, irrelevant and/or prejudicial evidence be excluded and the VISs appropriately amended if necessary. The principle of fairness required however that the interests of family victims also be respected. In exercising their legal entitlement to prepare and submit VISs that they hoped to read aloud, the family victims had interests that were ‘substantially affected’ by the handling of the objections to their statements. [29] The requirement of fairness in these circumstances required the court to consider the interests of the family victims as well as those of the defendant.

Often this process is described as the ‘balancing’ of competing interests but the metaphor of balance is misleading. The interests of the defendant and the family victims in the plea hearing are qualitatively different and not mutually exclusive.[30] The defendant’s interest lies in preventing unfair restriction on his or her liberty that might follow consideration of inadmissible evidence. The interest of the family victims on the other hand, is to have a voice and be heard on the impact of the crime. In protecting the interests of the defendant it is not necessary to exclude consideration of the interests of family victims.

Fairness to the family victims in this case did not mean that they should have been heard or consulted in relation to the objections and changes to their statements. Fairness required the court to respond empathically to their situation and acknowledge their emotional responses to court events. According to Henderson empathy is both a “way of knowing” and a “catalyst for action”.[31] As a way of knowing, it is the quality of understanding the experience or situation of another.[32] This involves reading both verbal and non-verbal cues and being sensitive to the affective state of the situation.[33] As a catalyst for action, empathy generates empathic responses to situations such as communicating a sense of caring or responding to the situation in a ‘helping and non-judgmental manner.’[34] Empathic responses of judges convey dignity and respect in the courtroom.[35]

With regard to the sentencing hearing, at the very least court staff should have discussed their concerns with the prosecution and the defence beforehand and the family victims given notice of those concerns. Empathic responses in the plea hearing required the court to clarify the defendant’s concerns for family victims and explain why and how the VISs were amended. In doing so, the judge could have emphasised that amending the statements was a matter of law and not personal and this course would not detract from their opportunity to be heard. The judge did not have to speak to the family victims directly; instead these comments could have been directed to the court more generally for all, including the family, to hear. Such sensitivity to the victims’ concerns would not have detracted from the defendant’s entitlements. Indeed arguably, the interests of the defendant might have been enhanced by the reduced emotional tension and conflict during the proceedings. While the family may not have been sympathetic to the defendant’s entitlements or happy that their statements had been changed their interests and concerns would have been acknowledged. Though powerless in the business of the hearing, such empathic responses would have accorded the family respect and dignity and arguably a sense of justice.

CONCLUSION

Courts have a duty to maintain public confidence in public justice through the integrity of its processes. It is arguable that the negative publicity surrounding the Borthwick case in relation to the experiences of the victims arguably brought the law into disrepute. The law requires the court to both protect the interests of the defendant and accommodate the voices of victims through their VISs in the sentencing process. The principle of fairness requires that respect be accorded to the interests of both the defendant and the victim. It has been shown that to respect the interests of the victim does not derogate from the interests of the defendant. Accordingly it is prudent that sentencing courts reconsider their modus operandi dealing with victims and accord fairness to all affected. Like the principle of fairness itself, courts will need to be dynamic, adaptive and reflective.









[1] Edna Erez, ‘Integrating a Victim Perspective in Criminal Justice through Victim Impact Statements’ in Adam Crawford and Jo Goodey (eds) Integrating a Victim Perspective Within Criminal Justice (2000)
[2] Hon J CJ Spigelman, ‘The Truth can cost too much: The Principle of a Fair Trial’, (2004) 78 Australian Law Journal 29-29, 33.
[3] Jago v District Court of New South Wales (1989) CLR 23, Brennan J, 50; Spigelman n1, 33.
[4] R v Borthwick [2010] VSC 613. M. Iaria, ‘Judge flags new victim statement policy’, The Age 21/9/10; A. Lowe, ‘Calls for new victim statement rules’ 22/9/10; ABC Radio National, The trial of Leon Borthwick, Law Report: Part one 25/1/11 http://www.abc.net.au/rn/lawreport/stories/2011/3119705.htm, part two 1/2/11 http://www.abc.net.au/rn/lawreport/stories/2011/3125492.htm, part three 8/2/11 http://www.abc.net.au/rn/lawreport/stories/2011/3130080.htm.
[5] N. Schultz-Byard, ‘Victims impacted by censored statements’ 891 ABC Adelaide, 17/6/11 http://www.abc.net.au/local/stories/2011/06/17/3246359.htm?site=adelaide, Hannah Silverman, ‘Families share their pain with killer driver’ The Advertiser (Adelaide) 7/5/11.
[6] Section 95B(1).
[7] Details of courtroom events in this case have been drawn from media reports and a three part documentary made in relation to the case and broadcast on Radio National, see n 3.
[8] It was reported that deceased’s sister tore her VIS in two pieces and ‘stormed out of the courtroom’ in tears. Outside she told media: ‘My heart was on those pieces of paper and they have just destroyed them.’ Iaria, n3.
[9] ABC Radio National, The Trial of Leon Borthwick, Part 3, n 2.
[10] The interview available from http://www.3aw.com.au/blogs/3aw-generic-blog/3aw-allows-statement-court-didnt/20100914-159zj.html
[11] ABC Radio National Part Three, n2.
[12] Dowlan [1998] 1 VR 123, Charles JA, 140.
[13] Radio National, The Trial of Leon Borthwick, Part Three, n2.
[14] Ibid.
[15] Iaria, n3.
[16] ABC Radio National, The Trial of Leon Borthwick, Part three, n 2.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Practice Note 3 of 2011, Sentencing Hearings (Supreme Court of Victoria).
[21] Paragraph 8.
[22] Office of Public Prosecutions Victoria, Prosecution Policy and Guidelines – Victims Eligibility to make Victim Impact Statements, and the role of the OPP and the Director therein, 34.4.1 and 34.4.2.
[23] 34.4.2.2,
[24] Practice Direction n xix,, Paragraph 8.
[25] Paul Rock, ‘Hearing Victims of Crime’ in A Bottoms and J Roberts (eds) Hearing the Victim: Adversarial justice, Crime Victims and the State (2010), 207.
[26] Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of law, (2011).
[27] Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, Deane J.
[28] Brennan J in Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, 54; Spigelman n1, 33.
[29] Sam Garkawe, “The Role of the Victim during Criminal Court Proceedings” [1994] UNSWLawJl 21; (1994) 17(2) University of New South Wales Law Journal 595-616, 603.
[30] ibid 603.
[31] Lyn Henderson, ‘Legality and Empathy’ (1987) 85 Michigan Law Review 1574, 1576.
[32] Ibid.
[33] N Eisenberg and J Strayer, Empathy and its Development (1987), 5-6.
[34] Ibid.
[35] Goldberg, Judging for the 21st Century: a Problem Solving Approach (2005) National Judicial Institute, Canada.


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