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The role of victims in the criminal justice system has traditionally been a very limited one.

However, in recent decades attempts have been made to accommodate the interests of victims in the criminal justice system. An objective of the Sentencing Act is to recognise the interests of victims.

When an offender pleads guilty or is convicted after a trial, the magistrate or judge has the discretion to decide the appropriate sentence. The judge bases his decision upon objective factors – factors which directly relate to the facts of the offence. These include:

  • the circumstances of the offence
  • the nature of the offence
  • the offender’s criminal record, if any.

Mitigating factors submitted to the court may be taken into account, and have the effect of reducing the sentence. Mitigating factors, which are generally subjective factors of the offender, may include:

  • the offender’s age
  • the offender’s state of health
  • the offender’s family circumstances
  • the remorse shown by the offender for the offence
  • the offender was not fully aware of the consequences of his or her actions because of the offenders age or any disability
  • an early plea of guilty

Note that the list is not exhaustive.

Aggravating factors are factors which increase the offender’s criminal culpability and therefore are likely to result in the offender receiving a more severe punishment. The court may take into consideration aggravating factors in sentencing. These factors include, but not limited to:

  • the offence was committed in company
  • the offence was committed in the presence of a child under 18 years of age
  • the offence involved gratuitous cruelty
  • the offender abused a position of trust or authority in relation to the victim
  • the offence was part of a planned or organized criminal activity
  • the offence involved the actual or threatened use of violence
  • the offence involved the actual or threatened use of a weapon

If the offender has been convicted and is being sentenced the judge or magistrate may call for, or accept, a victim impact statement. This is a statement prepared by the victim, which outlines the personal harm suffered as a direct result of the sexual assault.

It relates only to physical injury, mental illness or shock suffered by the victim. The victim impact statement can only refer to those offences for which the offender is being sentenced. The final decision about whether or not to submit the victim impact statement to the court lies with the prosecutor. Victim impact statements are only admissible in the Local Court in relation to certain acts of sexual assault (listed in Table 1 Sch.1 to the Criminal Procedure Act 1986).

It is a matter of judicial discretion as to what weight, if any, the judge will give the victim’s impact statement.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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