Recognizing Ancillary Harm at Sentencing: A Proportionate and Balanced Response

Abstract

Victim participation in sentencing has become an important theme in the victims’ rights literature and continues to be the subject of much debate among academics, practitioners, courts, and the wider public. The debate about the role and effects of victim impact statements (VIS) and family impact statements continues in most common law jurisdictions. The responses to our initial article in this journal illustrate the importance and diversity of this debate across the world, within domestic and international legal orders. This article responds to the commentaries upon our original article. We continue to argue that the primary aim of ancillary harm should be to inform the courts on the seriousness of the crime in order to facilitate the determination of a more proportionate sentence. We do not support a victim-centred approach where sentencing decisions rest on victims’ suggestions and opinions. Further, we do not claim that compensation and therapy for victims should be the primary role of sentencing. Instead, our position rests on retributive grounds and proposes a balanced approach to sentencing where all relevant factors are considered, including ancillary harm as an aggravating factor. We acknowledge the importance of limits, namely on the content of VIS, the effect of ancillary harm, and the importance of its reasonable foreseeability as a criteria for considering the aggravating effect of ancillary harm.