Page 217 - Week 01 - Thursday, 10 February 2022
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violence in our sentencing is an important part of our legislative evolution to make it crystal clear that family violence is a concern for all of us.
I would note that this does not interfere with the important principle that the court, with all the information and circumstantial detail before it, is the decision-maker at sentencing. I should note that concerns have been raised by the ACT Law Society that this could result in unnecessary over-punishment, or could be applied too broadly, in circumstances that involve perhaps “atypical” family violence, such as violence from children against family members.
These are serious concerns, and I considered that it was appropriate to put on the public record that this is not a blunt instrument for automatically increasing incarceration. All the considerations going into sentencing still remain. This does not interfere with that important principle of individualised justice. What it does do is increase the maximum penalty, available when offending is so severe that no other option is appropriate. It provides another tool for the court to recognise serious harm. These amendments will protect victims of family violence, and the community as a whole, by ensuring that offenders are adequately punished for their behaviour.
These new maximum penalties will provide guidance to the sentencing courts, as well as to the ACT community, about how seriously the ACT government regards family violence offending. The penalties will also help to protect the community and victims from the risk of further physical, emotional and psychological harm from family violence when offenders need to be kept out of the community for longer periods of time.
The bill also introduces reforms to require a court to adjourn sentencing proceedings for a serious offence to allow for a victim impact statement to be prepared. A serious offence is one that carries a maximum penalty of imprisonment of five years or more. When a criminal matter unexpectedly progresses to sentencing, a victim may need some additional time to have their victim impact statement ready. The amendment will help to ensure that victims of any kind of serious offence are still able to give a victim impact statement in these circumstances and have the opportunity to express to the court how the offence has impacted them.
The bill introduces measures to limit the ability for the defence to cross-examine a person on the contents of their victim impact statement. The court must not allow cross-examination on a victim impact statement unless it is satisfied that the victim impact statement has substantial probative value or that the cross-examination would materially affect the likely sentence.
These measures also extend to limit the use of a victim impact statement in other proceedings. Victim impact statements are prepared by victims to assist the court in sentencing and are often a therapeutic process. These amendments will reduce the likelihood that a victim will be subject to cross-examination. Cross-examination can be a traumatic experience for victims and is not conducive to healing for those who are surviving family violence. As a result, these amendments will help to remove a potential barrier to victims preparing victim impact statements where they may otherwise be deterred by the prospect of cross-examination.
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