‘Cooling out’ victims of crime: Managing victim participation in the sentencing process in a superior sentencing court

AuthorTracey Booth
Published date01 August 2012
Date01 August 2012
DOIhttp://doi.org/10.1177/0004865812443680
Subject MatterArticles
untitled

Article
Australian & New Zealand
Journal of Criminology
45(2) 214–230
‘Cooling out’ victims of crime:
! The Author(s) 2012
Reprints and permissions:
Managing victim participation
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0004865812443680
in the sentencing process in a
anj.sagepub.com
superior sentencing court
Tracey Booth
University of Technology, Sydney, Australia
Abstract
Victim participation in the sentencing hearing by way of oral victim impact statements (VISs) is
a contentious aspect of contemporary criminal justice. A particular concern is that the dis-
juncture between the legal goals of the sentencing hearing on the one hand and the goals of
victims on the other can generate tension and conflict in the courtroom and threaten the
integrity of the process. The subject of this article is the management and containment of
victim participation in 18 sentencing hearings observed in the NSW Supreme Court. It is
argued that various cooling out structures and processes effectively managed and contained
the emotional tension in the courtroom as well as assisted victims to adjust to the legal
constraints and the compromise inherent in their position in the process.
Keywords
cooling out, sentencing, victim impact statements
Introduction
Victim participation in the sentencing process by way of victim impact statements (VISs)
is a contentious aspect of contemporary criminal justice (Ashworth, 1993; Bandes, 1996;
Booth, 2007; Edwards, 2004; Erez, 2000; Henderson, 1985; Hoyle et al., 1998;
Kirchengast, 2005; Sanders et al., 2001; Sarat, 1997). More recent concerns relate to
the integration of oral VISs in the sentencing hearing (Rock, 2010). Much of the con-
troversy in this regard stems from the disjuncture between the very dif‌ferent goals and
interests of the adversarial legal process on the one hand and those of crime victims on
the other. From a legal perspective, legal processes operate according to established
principles; objective and rational decision-making is highly valued and the expression
of strong emotions in this sphere is inappropriate. Many victims, on the other hand,
want to be heard and express their feelings in relation to the crime. Changes in our
Corresponding author:
Tracey Booth, Senior Lecturer, Faculty of Law, University of Technology, Sydney, PO Box 123, Broadway, NSW, 2007,
Australia.
Email: tracey.booth@uts.edu.au

Booth
215
society’s sensibilities in the second half of the twentieth century led to the recognition of
the emotional dimension of legal matters as a proper concern of the law (Laster and
O’Malley, 1996). In the last two decades there has been a discernible shift – through
movements such as therapeutic justice and restorative justice – to the ‘re-emotionalisa-
tion of law and its processes’ (Karstedt, 2011: 3; 2006). A key feature of this emotional
paradigm is the focus on victims and their emotional needs; the concomitant incorpor-
ation of VISs in the sentencing hearing is intended to provide victims with space for their
emotions. That this disjuncture has the potential to produce potential for tension and
conf‌lict in the courtroom and bring the law into disrepute was recently demonstrated in a
Victorian case, Borthwick1 (Fogarty, 2010; Iaria, 2010).
It is only in recent times that research has started to emerge with regard victim
participation in the actual sentencing hearing (Rock, 2010). This article aims to contrib-
ute to this emerging body of research by exploring f‌indings from an observation study of
sentencing hearings of homicide of‌fenders in the NSW Supreme Court.2 The subject of
this article will be the containment and management of victim participation through oral
VISs in the courtroom.
Since 1997, members of the deceased victim’s family statutorily described as ‘family
victims’, have been entitled by statute to submit a VIS to the sentencing hearing in
matters where the deceased victim has died as a result of the of‌fence.3 From 2003,
family victims have also had the option of reading their VISs aloud to the sentencing
court.4 The study found that while the levels of emotional tension in the courtroom were
raised in those matters where VISs were read aloud to the court, proceedings nonetheless
remained orderly in all but one matter. Moreover, to the writer’s knowledge, there were
no media reports of victim dissatisfaction.
Gof‌fman’s ‘cooling out’ process (Gof‌fman, 1952) provides the conceptual framework
for analysing these f‌indings. It is argued that family victims were ‘cooled out’ by various
legal structures and processes so as to manage and contain the emotional tension in the
courtroom as well as assist victims to adjust to the legal constraints and the compromise
inherent in their position in the process. The cooling out structures and processes
demonstrated an empathic response to the situation and concerns of victims.
Part 1 outlines the disjuncture between the goals and interests of the adversarial
sentencing process on the one hand, and family victims on the other, and illustrates
this disjuncture through Borthwick. Findings from the recent UK study of VISs in the
courtroom are also outlined. Part 2 sets out f‌indings from the observation study which
are then analysed through the ‘cooling out’ framework in part 3.
1. The disjuncture between family victims and legal process
There are three major aspects to this disjuncture: the adversarial form of legal proceed-
ings; the narrow legal focus of the sentencing hearing; and the expressive function
of VISs.
The adversarial form of legal proceedings
Legal proceedings take an adversarial form which means that the sentencing hearing is
conducted by two opposing and partisan parties – the prosecution who prosecutes the

216
Australian & New Zealand Journal of Criminology 45(2)
charge on behalf of the Crown (representing the State and the community, here called
‘the Crown’) and the defendant. Only the Crown and the defendant have legal
‘standing’ to participate in the hearing by presenting and scrutinising evidence and
making submissions in relation to penalty. These of‌f‌icial parties shape the hearing,
identify the contentious issues, determine the evidence and inf‌luence penalty. Family
victims are not parties and excluded from this process. The proceedings are managed
by an independent and impartial sentencing judge who determines the penalty
(Spigelman, 2004).
Moreover, as non-parties, family victims 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 (Mulcahy, 2011; Tait, 2001). The
business of the hearing – taking evidence, hearing witnesses, making submissions and
imposing penalty – takes place in the body of the courtroom, here called the ‘central
performance zone’. Only the judge, the parties and their legal representatives are per-
mitted in this zone during the hearing; ‘outsiders’ enter by invitation. Family victims are
not allocated space in this zone and, of necessity, they join members of the public in the
public gallery as the ‘audience’ to the hearing. The public gallery is a zone established at
the rear of the courtroom physically separated from the central performance zone by a
railing or some other barrier. From this region, the view of the hearing may be restricted
and the audibility of the proceedings varies in quality.
In contrast, in civil law jurisdictions, family victims are included in the proceedings as
partie civile. Tait describes a French murder trial in which the family victims were
‘fully included’, being located in the performance zone and able to ask questions of
the defendant (Tait, 2001: 207–208).
The legal focus of the hearing
The focus of the hearing is the defendant: the circumstances of the defendant’s crime, the
defendant’s personal situation and the defendant’s future. Viewed from a narrow legal
perspective, the sentencing hearing aims to evaluate the seriousness of the of‌fence and
determine the appropriate punishment for the of‌fender according to law. The parties
tender evidence to the court relevant to the nature of the killing and the defendant’s
culpability, as well as any particular mitigating and/or aggravating factors that might
af‌fect the penalty. While the maximum penalty is prescribed by statute, the ultimate
penalty imposed is a function of the judge’s discretion guided by the relevant legislative
and common law principles such as retribution, deterrence, rehabilitation and protection
of the community.5
The Crimes (Sentencing Procedure) Act 1999 (NSW) provides family victims with a
limited opportunity to participate in this process through the submission of VISs that
recount the impact of the deceased’s death on his or her family.6 From a legal perspec-
tive, however, it is unclear whether the purpose of such a statement is to inf‌luence the
penalty imposed. Little guidance is provided in the legislation, which simply directs the
court to take account of VISs from family victims in the determination of the penalty
only ‘if it considers that it is appropriate to do so’. The NSW Supreme Court has taken
the view, however, that it is not appropriate to take account of such VISs from family

Booth
217
victims because the resulting penalty might ref‌lect not the culpability of the of‌fender but
instead the value and worthiness of the deceased person (R v Previtera; R v FD; R v JD;
Booth, 2007; Kirchenghast, 2005).7 The more valuable and worthy the deceased, the
greater the impact of the death on the deceased’s family,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT