Introduction As far back as 1977, Nils Christie argued for the notion that a criminal offence or conflict held a

Introduction As far back as 1977, Nils Christie argued for the notion that a criminal offence or conflict held a

proprietary value for victims and offenders. Christie’s perspective considered the criminal offence as a site of conflict that needed to be mediated and resolved between the original parties to that conflict. Christie therefore challenged the notion that the state ought to remove the victim from the site of the resolution of the criminal conflict, the criminal trial, to offer them assistance elsewhere. Christie (1977: 7) states:

Most of us would probably agree that we ought to protect the invisible victims just mentioned. Many would nod approvingly to ideas saying that states, or Governments, or other authorities ought to stop stealing fines, and instead let the poor victim receive the money. I at least would approve such an arrangement. But I will not go into that problem here and now. Material compensation is not what I have in mind with the formulation ‘conflicts as property’. It is the conflict itself that represents the most interesting property taken away, not the goods originally taken away from the victim, or given back to him. In our types of society, conflicts are more scarce than property. And are immensely more valuable.

According to Christie (1977), the ‘conflict’ that derives from the criminal offence holds significant therapeutic potential for the victim and offender. Criminal injuries compensation or other forms of victim assistance may not therefore fairly replace access to this conflict. This removal of the victim from the resolution of the criminal ‘conflict’, despite its best intentions, may in itself cause further problems for victims by limiting their sense of agency and subjectivity within the criminal justice system (Wemmers 1996). These arguments may be evidenced in terms of those programs currently operative within each state and territory of Australia, including victims’ compensation schemes established by statute and

1 Lecturer, Faculty of Law, UNSW. Email: t.kirchengast@unsw.edu.au 1 Lecturer, Faculty of Law, UNSW. Email: t.kirchengast@unsw.edu.au

The right to access the criminal ‘conflict’ plays out across policy debates that seek to reintegrate victims in the criminal justice system since the 1970s and 1980s. These debates have called for increased funding for victims, the forgotten agent of criminal justice, demonstrated through the growth in victim orientated support programs throughout the 1980s (Rock 1990). These debates, that the victim deserves some from of support following a crime out of their discrete needs as vulnerable citizens and out of the state’s failure to secure crime in the first instance, tended to situate the victim within a welfare or administrative milieu, at ‘arms length’ from the criminal law. Much has been said on the tendency to remove the victim through offerings of compensation and assistance in this way. Wemmers (1996:213), referring to the seminal work of victimologist Robert Elias, argues that such reforms have tended to pay “lip service to the needs of victims in return for political power”. The removal of the victim to these arenas has also made problematic the attempt to bring victims closer to the criminal ‘conflict’. This is evidenced across a vast literature that indicates how judicial decision making ought to be devoid of private or sectarian interests and that out of the preserve of defendant rights, victim interests will only seek to displace the right of the accused to a fair, independent trial (Edwards 2004:970-971; Roach 1999).

Certain characteristics shape victims’ compensation and assistance programs. Evidenced in the legislative and institutional operations of each state and territory, these include: the defining of the victim as a primary, secondary and tertiary victim, or immediate victim and immediate family victim; 2 the existence of public agency agreements; 3 the use of executive tribunals or assessors for the making of compensatory determinations and dispute resolution; 4 the creation of a Charter or Declaration of Victims’ Rights and an

associated office of ‘Victim Coordinator’ in some states, or advisory committee, such as the Victim Rights

2 Victim Support and Rehabilitation Act 1996 NSW ss 7-9; Victims of Crime Assistance Act 1996 Vic ss 7,9,11; Criminal Offence Victims Act 1994 Qld s 5(a)-(c); Victims of Crime Act 1994 ACT s 3(1)(a)-(c); Victim of Crime (Financial Assistance)

Act 1983 ACT ss 9,13; Crimes (Victims Assistance) Act 1999 NT s 3(1)l ; Victims of Crime Act 1994 WA s 2(i); Victims of Crime Act 2001 SA s 4 see ‘immediate victim’.

3 See, for example, Victims of Crime Act 2001 SA s 16A as to capacity of the Commissioner of Victims’ Rights to enter into public agency agreements. See Victim Support Services Incorporated SA (www.victimsa.org) as to existence of such an

agency agreement. 4 Victim Support and Rehabilitation Act 1996 NSW pt 3, div 1; Victims of Crime Assistance Act 1996 Vic pt 3 div 1.

Bureau in NSW. The issue with many of these developments, including the development of a Charter of Victims’ Rights, is that the rights provided are not contestable at law. The victim is thus held, effectively, in an administrative context away from the common law, and criminal law, in particular.

Integrating the Victim in Compensation and Sentencing In most jurisdictions the common law plays a limited role in the modern regulation of victims under executive programs for assistance. All victims’ compensation schemes, with the exception of South Australia [SA], metes out compensation outside the criminal law and sentencing process. In terms of pursuing the offender as tortfeasor in the civil law, the victim is generally limited in their ability to seek further civil awards as any money paid to the victim by court order is reduced by that already awarded by the state. Victims may, however, use state compensation payments to further pursue a civil action should there be a chance that a civil court will award damages above the amount of compensation payed by the state. This, however, might require the victim to risk their compensation payment awarded under state legislation for a civil action that may be unsuccessful, or no more successful that the original claim for statutory compensation. Unlike the other states and territories, SA includes the victim in the criminal law by allowing orders for compensation and restitution to be counted toward the sentence of the offender. Orders for compensation and restitution are thus determined by a sentencing judge as part of the balance of factors which the court must consider when determining a proportionate sentence commensurate with the seriousness of the offence and culpability of the offender. The Criminal Law (Sentencing) Act 1988 (SA) s 53(1) provides:

Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.

The sovereignty of the state has been increasingly asserted over the regulation of crime since the thirteenth century. In doing so, crime has generally been reserved for the criminal jurisdiction, with ‘private’ causes being reserved for the civil jurisdiction. Victim compensation, being a statutory entitlement, remains distinct from common law proceedings. This is evidenced in the common law of victims’ compensation, which deals with entitlement to compensation as a matter of state administration. Victims’ compensation, then, is also distinguished from traditional private remedies available in the civil The sovereignty of the state has been increasingly asserted over the regulation of crime since the thirteenth century. In doing so, crime has generally been reserved for the criminal jurisdiction, with ‘private’ causes being reserved for the civil jurisdiction. Victim compensation, being a statutory entitlement, remains distinct from common law proceedings. This is evidenced in the common law of victims’ compensation, which deals with entitlement to compensation as a matter of state administration. Victims’ compensation, then, is also distinguished from traditional private remedies available in the civil

Victims’ compensation tends therefore to complement the removal of the victim from the criminal law by confining the victim to a jurisdiction constituted by statute, and administered as an adjunct to criminal law and procedure. This if affirmed in R v Bowen (1969) at 84, where Reynolds J suggests “it [s437] is a provision of a very summary nature of doing some measure of justice to the victim of a crime without the delay, expense and formality of a civil action for, for example, assault, trespass or conversion”. R v Cheppell (1985) furthers this argument by indicating that compensation orders are not a means of enforcing civil liability, holding that it is not necessary to establish civil liability in an application for compensation.

However, criminal injuries compensation can be likened to a civil proceeding at common law. Although it is an administrative jurisdiction distinct from the orthodox common law trial, authority suggests that it presents certain similarities providing the victim a ‘common law trial’ experience. For example, R v McDonald [1979] and R v C [1982] established that the offender be given a reasonable opportunity to be heard with respect to an application for compensation in order to contest the application as though it were a civil proceeding for an award of damages. The only exception to this rule is where the offender waives their right to notice of the application, such as when an offender escapes from lawful custody or absconds whilst on parole. 5 When assessing compensation the judge should proceed by reference to the

same principles as those that apply in a civil action for damages for personal injury subject to any restrictions imposed by legislation. 6

As such, victim compensation potentially mirrors orthodox common law processes, though being held apart from them. Punishment, however, is reserved for the criminal jurisdiction under the control of the

5 See R v Babic [1980] 2 NSWLR 743. 6 See also In Re Poore; In Re Scully and Scully (1973) 6 SASR 308, R v Fraser [1975] 2 NSWLR 521, Re Applications for Foster

[1982] NSWLR 481, R v Field [1982] 1 NSWLR 488, R v C [1982] 2 NSWLR 674, Battista v Cooper (1976) 14 SASR 225, R v McDonald [1979] 1 NSWLR 451, R v Hewitt (1994) 75 A Crim R 59, McClintock v Jones (1995) 79 A Crim R 238.

Crown and state. R v Forsythe [1972] held that with respect to s 437 of the Crimes Act 1900 NSW, that “the amount determined is in no way a punishment for the convicted person. It is, as the section says, a compensation to the aggrieved person for the injury that the convicted person has done by reason of the felony”. The order for compensation is not to be regarded as punishment, and may not be regarded as part of an offender’s sentence.

It is now universally accepted that where heard as part of sentencing proceedings, such awards are legitimated not out of any connection to the punishment of the offender, but out of the desirability of

avoiding the burden of separate civil proceedings. 7 An earlier decision, R v Daley [1970], contradicts this premise, holding that compensation is not a civil award as it is intended to be an additional punishment

to the accused. However, with the possible exception of SA, the gravity of authority now rests with the former assumption that compensation is a mode of administrative relief designed to hasten the receipt of damages to victims. To this end, R v Braham [1977] holds that a compensation order does not form part of the penalty, and can not be used for the purposes of determining whether or not a penalty was manifestly excessive.

The law of SA, however, differs from that of the other states and territories by virtue of s 53(1) of the Criminal Law (Sentencing) Act 1988 (SA). The courts in SA have grappled with the extent to which an order for compensation ought to be taken into account as part of an offender’s sentence. In Brooks v Police [2000], Bleby J regards the offender’s willingness to pay compensation or perform an act of restitution as an important indication of contrition, something long considered relevant to sentence:

It can be seen that the Sentencing Act gives some prominence to the question of compensation to victims… where a defendant exhibits genuine contrition borne out of a desire to pay compensation, but does not have the means to pay it (usually because the defendant never has had the means), and where it can be seen that some payment, periodic or otherwise, which the defendant can afford, may well have some therapeutic benefit in the rehabilitation of the offender, it can become a useful sentencing tool. This is so particularly where the alternative of imprisonment will mean loss of a job, a negation of any ability to pay compensation or to reimburse the Attorney-General, and a denial of any opportunity to the offender to become a useful member of the community.

Justice Bleby’s dicta has been affirmed recently in Mile v Police [2007] SASC 156, where Sulan J states: During the course of the appeal, a question arose whether the order for compensation, which was a

condition of the bond imposed by the Magistrate, was required to be taken into account in

7 See also Re Gangemi [1971] QWN 19, R v Allsop [1972] QWN 34, R v Johnson; Ex parte McLeod [1973] Qd R 208.

determining the final penalty. Whether payment of compensation or the court ordering a defendant to pay compensation is to be taken into account as part of the sentence was discussed by Bleby J in Brooks v Police…

Section 10(1)(f) of the Act provides that a court, in determining the sentence for an offence, should have regard to:

... the degree to which the defendant has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner ... (Mile v Police [2007] SASC 156, [24-25])

It seems that under SA law, victims’ compensation forms part of the offender’s sentence. However, what is less clear is whether, by conflating compensation and punishment, the victim is brought into consideration in new ways. The jurisprudence that has emerged from the introduction of s 53(1) seems to reinforce the need to consider punishment from the defendant’s perspective. This is not surprising given that the role of any sentencing court is to constitute a sentence proportionate to the offender’s culpability. Sentencing courts are not there to appease the private interests of the victim. It does bring into question, however, the extent to which the victim may well be included by virtue of s 53(1).

This comment aside, the SA regime does seem to integrate the victim into criminal proceedings in a way that the other states and territories do not. By factoring compensation as part of an offender’s sentence the criticisms of punishment as being an exclusive discourse between state and offender are overcome. Furthermore, compensation as a means of remedying a wrong to the victim is not held apart from the ‘tribunal’ of the criminal trial, addressing Christie’s (1977) concerns as to the restorative value of the criminal trial or ‘conflict’.

This being said, victims’ compensation remains distinct from the general common law of civil liability and, with limited exceptions, has no role in the determination of a relevant punishment. Thus, while civil law provides for damages in accordance with the ‘once and for all’ compensation principle, victim compensation seeks to establish an alternative regime that sits as an adjunct to criminal justice processes – as a statutory compensation scheme to assist victim welfare. This is consistent with the fact that victim compensation is rationalised as an ameliorative regime that seeks to restore the victim, without impacting on the development of criminal law and procedure, and perhaps most importantly, the rights of the defendant in sentencing.

Victims’ Compensation and Restorative Justice The continued removal of the victim to an administrative milieu has grown considerably since the 1960s (Mawby 2007:209-239). As indicated above, SA has successfully integrated the victim under s 53(1) of the Criminal Law (Sentencing) Act 1988 (SA), but this is a departure from the normative approach across the other jurisdictions in Australia. Some work has been done to recognise matters of victim rights and compensation as existing within a broader restorative justice paradigm but this is largely limited to innovative programs requiring offenders to make reparation to victims, or enter into mediation where the victim agrees to it (Davies 2003:114). Such innovations are rather an extension of the normative regulation of victim rights within an administrative environment, providing victims limited rights or privileges in addition to compensation awarded by the state. Such schemes are common alternatives

within the framework of punishments available to juvenile offenders. 8

Whether such claims ought to form part of the punitive process, however, is open to debate. In his assessment of the ends of punishment as between state and offender, Doak (2005) remarks that what we are witnessing with regard to victim’s calls for compensation, assistance and increased assistance, is the emergence of a new punitive process which may be more appropriately characterised in a restorative model of participatory justice. Doak (2005:315) indicates:

In specific relation to victims’ rights discourse, there appears to be a consensus that the effective resolution of criminal disputes requires that a crime is not only viewed as an offence against society, but also as a dispute between the victim and offender. Restitution and reconciliation are increasingly being mainstreamed as values that ought to be safeguarded by the criminal process. Punishment, it seems, is being increasingly sidelined in favour of restorative-based models which emphasize reparation and participation, signalling a shift in criminal justice discourse away from the neat dichotomy which has traditionally separated public and private interests.

Packer’s (1968:249) distinction between ‘crime control’ and ‘due process’, once characteristic of the limits of the state in meting out punishment, is said to no longer characterise the punitive process. Lacey’s (1988:184) conceptualisation of state punishment expands the traditional discourse of punishment beyond state and offender to include other relevant agents, such as ‘society’ and the ‘community’. Lacey (1988) puts punishment as a significant determinant of community. It is the need to reinforce community standards that, in Lacey’s view, justifies punishment as a social practice. The type of

8 See, for example, Young Offenders Act 1997 (NSW) Pt 5 Youth Justice Conferences.

punishments required to reinforce community values is thus something to be reflected upon, which explains why discourses of punishment are typified in terms of a political philosophy of the acceptable forms that punishment ought to take. Debate as to the validity of the death penalty or life sentences without the possibility of parole are key examples. Whatever form this philosophy takes, moreover, punishment as a social practice necessarily limits the participation of the victim in terms of restraining an individual’s capacity to resort to self-help or vengeance. This, however, is consistent with Packer’s discourse, least in terms of the way peripheral or sectarian interests are excluded from those of the community. Lacey (1988:184) remarks:

Related to social protection, but also closely linked to the need to demonstrate that the norms of criminal law are ‘for real’, is the need to forestall, or at least to minimise, any resort to private vengeance or self-help, which might cause disproportionate suffering and indeed involve excessive costs, whilst undermining the stability of and respect for the community’s legal system as a whole. Again linked to these aims is that of appeasing and satisfying the grievance-desires of victims, not only to reduce their suffering and to forestall self-help, but also to demonstrate that the community takes seriously the harm done to the victim and takes upon itself the responsibility for upholding the standards breached, which it hopes to vindicate through the process of conviction and punishment.

Despite extending the relevance discourse of punishment beyond state and offender, Lacey (1988) still excludes the victim as a potential threat to the objects of punishment as cementing social standards. Edwards (2004), however, has argued that the debate as to the acceptable limits of state-based punishment, contained in a dialogue of state crime control on one hand and fairness as to the rights of the accused on the other, largely excludes various parties material to criminal offending (see Edwards 2004; Roach 1999). By the characterisation of crime as a problem between the state and defendant, victims and other stakeholders, or those deemed peripheral within the criminal justice system, are excluded. As the crime control debate has shifted towards the consideration of the rights of various parties excluded from Packer’s model, victims and others have gained a ‘place at the table’ over the discussion of how to best assess criminal offence seriousness and how to then redress such wrongdoing. Garland (2001:122) notes this shift in criminal justice policy:

Victims came to be accorded a series of rights, and a voice in criminal proceedings. These ranged from uncontroversial innovations such as separate waiting rooms in courthouses to much-disputed innovations such as ‘victim-impact statements’ and ‘victim opinions’ offered to the judge about sentencing, and to parole boards about release. In these various ways, the criminal justice system strove to reinvent itself as a service organisation for individual victims rather than merely a public law enforcement agency.

Doak’s (2005) characterisation of the move to restorative justice policy, inclusive of various stakeholder perspectives, indicates how these shifts in criminal justice policy turn on the reconsideration of traditional approaches to ‘public’ policy. In many ways, the movement to restorative justice over the need to punish indicates a backing away from the notion of ‘public’ as a concept wholly exclusive of private, sectarian interests.

The territory of criminal justice policy thus comes to be redefined and reinvented. This reinvention takes the form of a debate over the parameters of what may constitute good criminal justice policy by bringing to the fore various viewpoints that may be seen as relevant to the determination of liability, offence seriousness, and punishment. The nature of the debate over punishment has thus shifted from Packer’s conceptualisation of the ‘limits of the criminal sanction’ to one that includes various sectarian perspectives as relevant to ‘public policy’. What is relevant territory for public policy debate is therefore broadened to allow for the consideration of views not overtly social. Interests once deemed essentially private may now be able to be considered relevant to policy debates within criminal justice.

The characterisation of the victims’ compensation as irrelevant to offence seriousness is consistent with Packer’s (1968) thesis of the ‘limits of the criminal sanction’, as an exclusive dialogue between offender and state. This characterisation argues for some important considerations ensuring the rights of defendants are assured against the power wielded by the state. However, as an indication of criminal justice discourse relevant to the balancing of all stakeholders within the justice system, it is outdated.

The criminal law and trial procedure, as the embodiment of public rather than private good, should, arguably, be defined discursively, so that the changing needs of all stakeholders of justice can be considered, weighted and balanced. Justice must be reflexive to the needs of society; a principle which ought to be embodied in modern criminal justice doctrine. The debate has now shifted sufficiently far from Packer’s (1968) dialogue between state and offender to warrant the reconsideration of victim’s compensation and assistance programs as not necessarily meeting the restorative needs of victims as they pertain to offence seriousness and choice of punishment.

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