Monday, 2 August 2010

Smith v The Queen [2010] VSCA 192; the impact of forgiveness on sentence

Smith v The Queen [2010] VSCA 192 reaffirmed that a victim's forgiveness can be a relevant consideration in sentencing, but should be treated cautiously.

Evidence of forgiveness by the victim may indicate that the consequences of the offence on the victim have not been long-term or debilitating, thereby affording some mitigation: R v Skura [2004] VSCA 53. AJA Smith said in Skura [at 48] that '[w]here the offence occurs in a domestic situation, the attitude of the victim may be relevant to the question of rehabilitation'.

I mentioned in a post a couple of days ago that the case of DPP v Walden [2003] VSCA 139 left undecided whether material in a VIS - specifically evidence of the forgiveness of the victim - could be used in mitigation.

In Smith the accused faced charges of recklessly causing injury to his partner, and attempting to pervert the course of justice by endeavouring to persuade her to withdraw the complaint. The accused pled guilty, but on the appeal argued that the submissions by his counsel about his reconciliation with the victim were not given appropriate weight on the plea.

The Court found that wasn't true in this case and dismissed the appeal. Beach AJA [at 8]:

8 In my view, the sentencing judge was not bound to give any weight to the unsupported assertions that were made below concerning Ms Rodriguez’s attitude to the prosecution. As was said by Neave JA in R v Hester, even in cases where there is evidence of forgiveness of the victim of domestic violence, this evidence should be treated with extreme caution.

In cases of domestic violence the victim may be particularly susceptible to the offender's influence. Eames JA said in R v Wise [2004] VSCA 88 [at 36]:

36 The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing. In this case the victim appears to have been a vulnerable person in many ways, not least because of her youth, and it is understandable that His Honour apparently saw the protection of the community, including [the complainant], as being a more important consideration on sentencing than her desire to resume cohabitation with the appellant.

Bongiorno J went further in R v Melten [2001] VSC 184 [at 21]:

Whilst it is important that reliable information as to the effects of a crime upon a victim should be placed before a sentencing court, it must be borne in mind that the sentencing process is one in which the Judge must balance the interests of the State against those of the offender. Whilst it is entirely appropriate, and indeed required, that the Court take into account the effects of a crime upon a victim it must be vigilant to ensure that the views of a victim as to what might or might not be an appropriate sentence in a particular case do not intrude upon the sentencing process. Were they to do so the process would be distorted so that the perpetrators of crime would be dealt with, in part at least, according to whether the victim was prepared to extend or withhold mercy as the case may be. A moment's reflection demonstrates that the victim of a crime is the worst possible judge of what is fair and just treatment of an offender. This is so whether the victim's inclination is to forgive or to urge the Court to exact vengeance.

1 comment:

Habeas Corpus said...

Also R v Rowe (1996) 89 A Crim R 467:

The applicant's fifth submission is that the judge gave insufficient weight to the wishes of the complainant. This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Regina v Peter James Glen,8 Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.