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Victims and the Criminal Trial pp 205–233Cite as

Palgrave Macmillan

Appeals, Punishment and Parole

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Part of the book series: Palgrave Studies in Victims and Victimology ((PSVV))

Abstract

After the sentencing hearing, victims are generally excluded from any further participation in the remainder of the criminal trial process. With perhaps the exception of the parole hearing, where the victim may be invited to attend to submit a VIS, victims have been afforded few rights once the prisoner is handed over to the state for punishment. The appeals process contains few powers that could be characterised as service, participatory, or enforceable level rights. Rather, the state takes over and excludes victim participation during appeals against conviction or sentence, during the prisoner’s term of sentence, whether custodial or non-custodial, and during the parole application and determination process.

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Notes

  1. 1.

    See NSW Code of Practice for the Charter of Victims’ Rights (Victims Services, NSW Department of Justice 2015: 30): ‘Victims Registers will: record the names and contact details of victims who have asked to be registered in order to receive information about an offender or forensic patient; facilitate victims making submissions to relevant decision-making authorities in line with applicable legislation for each organisation; provide victims of crime who have safety concerns about the release of an offender, with information that will assist them in taking the steps they feel are necessary for their own protection; and advise the victim of the offender’s proposed release date; if the offender escapes; of any change in security classification that results in the offender being eligible for unescorted absence from custody; if an offender’s release is to be considered by a releasing authority; if an offender is returned to custody having breached the conditions of parole; if the revocation is subsequently rescinded and the offender is returned to the community prior to expiry of the sentence in full, in relation to which they are registered.’

  2. 2.

    See Strong v R (2005) 224 CLR 1 regarding the validity of the offender’s sentence under the Habitual Criminals Act 1957 (NSW). The offender was sentenced for offences of stalking and intimidation and then pronounced a habitual criminal and sentenced to further concurrent term of imprisonment. The High Court dismissed the appeal but Kirby J took the opportunity to review the legislation, noting that at par [62] ‘The Law Reform Commission recorded that the Office of the Director of Public Prosecutions at that time was in favour of repeal of the Habitual Criminals Act and that already the Act had ‘fallen into disuse’. Nevertheless, the Act was not repealed. It remains part of the law of the state. Over the last decade, in the way of these things, there has been a revival in Australian law of notions of preventive detention for ‘the protection of the public’. This has been given effect in legislation providing for lengthy mandatory imprisonment for repeat offenders; additional sentences of indefinite detention; and specific legislation addressed to certain long-term prisoners. As long as such laws are constitutionally valid, when they are invoked (as here), it is the duty of courts to uphold them and of sentencing judges to apply them in accordance with their language and purpose. In the present appeal, no challenge was raised to the constitutional validity of the Habitual Criminals Act.

  3. 3.

    Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 21A. Victim’s submission relating to further order (1) As soon as practicable after the court sets a date for the hearing for making its final decision under section 22 in relation to the prisoner, the chief executive must give written notice (hearing notice) of the issue of the warrant and hearing date to the following eligible person: (a) subject to paragraph (b), the person mentioned in section 9AA(1)(a) as the actual victim of the serious sexual offence for which the prisoner was serving a term or period of imprisonment; (b) if the victim is under 18 years or has a legal incapacity, the victim’s parent or guardian. (1A) However, subsection (1) does not apply if: (a) the chief executive has already given the eligible person a hearing notice for the prisoner; and (b) the person has informed the chief executive that the person no longer wishes to receive hearing notices for the prisoner. (2) The notice must invite the eligible person to give to the chief executive, before the date stated in the notice, a written submission stating: (a) the person’s views about any further order or conditions of release to which the prisoner should be subject; and (b) any other matters prescribed under a regulation. (3) It is sufficient compliance with subsection (1) for the chief executive to give the notice to the eligible person at the eligible person’s last-known address recorded in the eligible persons register. (3A) The chief executive must, before the hearing, give the Attorney-General: (a) if the chief executive received a submission from an eligible person in response to a hearing notice—the submission; or (b) information that the eligible person has not given a submission in response to a hearing notice; or (c) information that the eligible person has informed the chief executive that the person no longer wishes to receive hearing notices for the prisoner. (4) The Attorney-General must place before the court for the hearing of the division 3 order any submission received from the eligible person before the hearing date.

  4. 4.

    See also Parole Board (2015) Information for Victims, UK Government.

  5. 5.

    The sentencing report for Adrian Bayley is contained in The Queen v Bayley (2013) VSC 313. The unsuccessful appeal against his minimum term is contained in Bayley v The Queen (2013) VSCA 295.

  6. 6.

    England and Wales is in the process of modifying their monitoring of paroled offenders. The Criminal Justice and Courts Act 2015 (UK) makes further amendments to the parole provisions of England and Wales by providing for the electronic monitoring following release on licence, recall adjudicators, tests for release after recall for determinate sentences, creation of relevant offences, including the offence of remaining unlawfully at large after recall.

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Authors and Affiliations

  1. Faculty of Law, The University of New South Wales, Sydney, Australia

    Tyrone Kirchengast

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  1. Tyrone Kirchengast
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Kirchengast, T. (2016). Appeals, Punishment and Parole. In: Victims and the Criminal Trial. Palgrave Studies in Victims and Victimology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-51000-6_6

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  • DOI: https://doi.org/10.1057/978-1-137-51000-6_6

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  • Publisher Name: Palgrave Macmillan, London

  • Print ISBN: 978-1-137-50999-4

  • Online ISBN: 978-1-137-51000-6

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