Community-Based Sentencing: The Perspectives of Crime Victims

5. Reactions of Crime Victims


5. Reactions of Crime Victims

Each crime victim is an individual with unique experiences and opinions. As one experienced Crown noted, victims' reactions are dependent upon a range of factors, including the seriousness of the offence, the duration of the judicial proceedings, the treatment the individual received from legal and para-legal professionals and many other factors. The challenge to the researcher is therefore to uncover issues that are common to a number of people. Several such concerns emerged during the course of the interviews and focus group discussions. We begin with the question of victims' general reactions to community sentencing, and then turn to the critical question of level of knowledge about the sentence imposed.

The victims who participated in this study were not uniformly opposed to the concept of community-based sentencing or conditional sentencing. Not surprisingly, the level of awareness of the sanction varied considerably across victims. Several individuals felt that a conditional sentence could be effective if it was tough enough and if it was adequately enforced. However, there was a perception shared by several victims that the sentence should be used for less serious cases. One victim expressed it in the following way: "It should be given to teenagers. It's like being grounded." Two victims in Ottawa indicated that they were satisfied with the imposition of a conditional sentence in their case because it was the offender's first offence and they felt the embarrassment caused by the conviction was itself a significant punishment. Another victim agreed that a conditional sentence was appropriate because they felt the offender needed help, and because they didn't feel imprisonment would benefit the offender or the community. This is an example of victims supporting restorative principles.

Similarly, the victims in cases in which a suspended sentence had been imposed did not react negatively to the idea that the offender was not in prison, although they did have concerns about possible violations of conditions. One of the probation case victims described the sentence as one that she "thought was fair". However, she too expressed a desire for information about the offender's whereabouts (see below). Two victims expressed the view that the offender's presence in the community had created a kind of home confinement for them; they were apprehensive about encountering the offender in their neighbourhood.

5.1 Level of Knowledge

Despite the efforts of Crown counsel and VWAP personnel, the complexities of the justice system represented a challenge for the victims. Not surprisingly, many victims found the criminal process, including the sentencing phase, to be confusing. One individual brought us a copy of a memoir that she had written about the experience wherein she wrote: "I was so confused by it all…how people can change their minds, enter different pleas [at the] last minute, it is a tough world trying to understand the judicial system". Another individual described the criminal process as akin to "entering a whole new world", and yet another said "it was all totally new to me". One victim said that even now [at the time of the interview] "I don't know what I can and cannot ask". Several victims said that they felt "out of the loop", and did not know whether or when someone would get back to them in response to their queries.

In terms of information about the sanction imposed, most of the victims had received a copy of the probation or conditional sentence order, almost always by mail. Only two had received a copy of the reasons for sentence, but the victims were unanimous in their desire to have both documents. However, although most participants had received the court order, almost all found it confusing; their knowledge of the conditions imposed, and the likely consequence for the offender in the event that the conditions were violated, came from contact with VWAP personnel (or the Crown) rather than the document itself. One individual was unclear whether the offender had been sentenced to a conditional sentence of imprisonment or a term of probation.

Another victim who was generally satisfied with the sentence imposed (a suspended sentence accompanied by a term of probation) nevertheless acknowledged that she was "not totally clear" about the length of the order. (This individual had not received a copy of the order in the mail, but indicated in the interview that she would have liked to have had a copy.) Of those victims who had received a copy of the order, several stated that they would have liked to have had the order "interpreted" by a legal professional, or a VWAP representative, particularly the victim-related conditions such as no-contact restrictions. Another victim described the conditional sentence order that she had been sent in the mail as "full of legal jargon". One victim noted that she had received a copy of the offender's probation order in the mail but she "hadn't understood a word" of it.

Although they had not been asked to do so, several individuals brought copies of the conditional sentence order to the interviews [1]. Reviewing these orders, it was easy to see why the victims were baffled about the nature and conditions of the order. Several orders were missing critical pieces of information. One order pertaining to a conditional sentence case was actually a probation order, on which a conditional sentence had been written, with no indication of the duration of the conditional sentence. The individual victim in this case had heard that the offender was "covered for five years", but had no deeper understanding than this. In reality, it appears that the offender had been sentenced to two years less one day of conditional imprisonment, to be followed by three years probation. These are the maximum periods of time available to the courts for these sanctions, and this fact should have been made clear to the victim. The documentation provided to the victims in many cases appears to have been totally inadequate.

The conditional sentence order form was not conceived to provide a layperson with general information about the sanction; it is a legal document created for other purposes. Accordingly, it is of little use as a means of informing crime victims about the sentence imposed on the offender in their case. It is critical that victims have a sound grasp of the nature of the court order. Ideally, in light of the language used on the conditional sentence/ probation orders, the contents should be explained in person by either a VWAP individual or a legal professional.

It is important to provide personal injury victims with information about the conditional sentence of imprisonment as the paradoxical nature of the sanction (a term of custody served at home) can give rise to misunderstandings. For example, in one case the offender had been detained in custody pre-trial. The court had ultimately sentenced him to a conditional sentence of imprisonment. From the victim's perspective, he had been imprisoned (while presumed innocent), and then released to return home having been found guilty [2]. Conviction had resulted in liberty, albeit of a restricted nature. Criminal justice professionals well understand these apparent paradoxes, but they need to be explained to crime victims and members of the community.

In another case, the offender had been on bail, under conditions pre-trial, and in the opinion of the victim had violated some of these conditions. At sentencing he received a conditional sentence with conditions that seemed no different to the victim to the conditions on bail. She stated that: "In our case, we believe justice has not been done. A non-custodial sentence was issued [with] probation [i.e., bail] conditions similar to which I know he broke prior to being convicted, prior to the trial, so what encouragement did I have that he would abide by them now?". Another victim confronted with a similar scenario described it in the following terms, "The judge just gave him what he had already been given". Several victims indicated they did not see/understand the difference between probation and a conditional sentence.

Almost all the victims expressed a desire for more information of one kind or another, whether relating to the sentence imposed, its administration, or the offender. They would have liked to have received information regarding whether the offender was following the conditions, improving, participating in programs, when the sentence ends etc. A copy of the judge's reasons for the sentence imposed - why jail was not imposed, the length of conditional sentence, and the nature of the conditions attached to the order.

Several victims were confused about the sentencing factors given weight by the court. One individual had been the victim of a serious crime in Toronto involving two co-accused. One had no criminal record and the other was a recidivist, yet the court imposed the same sentence on both offenders. She did not understand how this was possible in light of their different profiles.

5.2 Victim Participation in Sentencing: Attending the Sentencing Hearing

Although almost all the participants had completed a VIS, most victims had not attended the sentencing hearing, and none had made an oral presentation of the statement. Only a few seemed aware that they had the right to make an oral presentation. One participant indicated that she did not submit a VIS because she was fearful of retaliation if the offender did not receive prison time. Several failed to attend the hearing out of apprehension that they would encounter the offender "in the elevator, or the parking lot", in the words of one victim. They expressed feelings of insecurity about attending the hearing, but made it clear that had they felt more comfortable, would have been present. Instead, they had asked family members to attend.

Two victims in one case had wanted to attend the sentencing hearing, but when they attended, the hearing was postponed to a later date. They were not informed about this second date, but in any event it was postponed a third time. On this occasion, understandably they declined to attend. These postponements (and the fact that they had not been informed of the second date) had been most troubling to the victims. Their experience was further marred by an apparent inability of the system to convey their Victim Impact Statements to court. They had completed two VIS, and clearly wanted these statements to be conveyed to the judge. However, even though they sent the statements to the court by courier, for some reason they were never provided to the Crown, and therefore never became part of the hearing. This was a major source of disappointment for these individuals.

5.3 Victim Input into the Conditions Imposed and Contact with the Crown

The conditions imposed on offenders serving conditional sentence orders or probation orders are critical from many perspectives, but particularly the interests of the victim. Accordingly, we explored the extent to which these victims had been able to make "submissions" to the Crown regarding the conditions that might form part of the prosecution's submissions at sentencing.

We had anticipated, based on findings from earlier research, that victims would express some disappointment about the extent and possibly also the nature of their contact with the Crown. However, with the exception of two individuals, all the victims reported being satisfied with their contact with Crown counsel. Most (but by their comments, not all) victims had received and completed a Victim Input Form. This form is provided by VWAP to the Crown counsel with carriage of the case. It contains information on whether the victim would like to submit a VIS, whether there are security concerns, and whether the victim seeks no contact conditions.

Crown counsel have few occasions, and very little time, to provide crime victims with information about the sentencing process, and to prepare them for the sentence that is likely to be imposed. Nevertheless, the interviews with Crown counsel made it clear that they make every effort to explain their position with respect to sentencing and solicit (where appropriate) the victim's input with respect to the conditions that may be sought in the event that a community sentence is imposed. The most frequently requested restriction was that the offender be required to stay away from the victim's residence or workplace. Being included in the discussion regarding conditions made the victims feel that they were being listened to and their input taken into consideration. Crown counsel added that they advised the victim that ultimately the determination of which conditions to impose lay within the discretion of the court, not the Crown. The Crowns also attempted, where possible, to explain why the court imposed a particular sentence.

The exceptional cases involved a victim who, as a result of a lengthy proceeding, had had contact with several Crown counsel, and another individual who reported that she had had a negative experience at the sentencing hearing. She stated that on the request of counsel for the offender, the Crown had suggested that she not attend the hearing, and the sentence imposed was in duration at least, far from what she had been led to expect from the Crown prior to the hearing.