Community-Based Sentencing: The Perspectives of Crime Victims

1. Introduction

1. Introduction

1.1 Community-Based Sanctions

Over the past decade, most western nations have experienced an expansion of community-based alternatives to imprisonment. In conjunction with statutory directions to judges to sentence with restraint regarding the use of custody (see below), this has resulted in an increased judicial reliance on non-custodial sentencing options. A number of factors explain this increased interest and legislative activity. First, there has been a growing awareness of the limitations of imprisonment, in terms of rehabilitation as well as deterrence. Correctional experts generally agree that most rehabilitation programs can be more effectively implemented when the offender is in the community rather than custody.

With respect to deterrence, it is becoming increasingly clear that prison is no more effective a general or specific deterrent than the more severe intermediate punishments (e.g., Doob and Webster, 2004). Second, keeping an offender in custody is significantly more expensive than supervising him or her in the community. Third, public opinion research has demonstrated that in recent years, the public has become more supportive of community-based sentencing, except when applied to serious crimes of violence (see Roberts, 2002; Roberts and Stalans, 2004).

Finally, the widespread interest in restorative justice - both here in Canada (see Roach, 1999; von Hirsch, Roberts, Bottoms, Roach and Schiff, 2003) and in other jurisdictions such as England and Wales and New Zealand -- has also revitalized interest in community-based sanctions. Restorative justice promotes the use of victim compensation, and service to the community. Restorative justice responses to crime generally encourage the offender to accept responsibility, express remorse for the offence, and apologise to the victim. Research has found that many crime victims state that they appreciate these steps on the part of the offender.

The statutory amendments to the Criminal Code introduced in 1996 place considerable emphasis on punishing offenders in the community rather than prison (see Daubney and Parry, 1999). Bill C-41 codified the principle of restraint in sentencing. According to section 718.2(d): "an offender should not be deprived of liberty, if less restrictive alternatives may be appropriate in the circumstances"; 718.2(e) further states that: "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" (emphasis added).

Finally, restorative purposes were added in 1996 to the traditional purposes of sentencing. Section 718(e) provides that one of the objectives of a sentence is "to provide reparations for harm done to victims or to the community" and section 718(f) provides that another objective is "to promote a sense of responsibility to offenders, and acknowledgment of the harm done to victims and to the community." Comparable provisions exist at the youth court level in the Youth Criminal Justice Act (see Bala, 2003; Roach, 2003).

The virtues of community sanctions [1] have thus become increasingly apparent in recent years. When offenders are punished in the community, the state saves valuable correctional resources, the offender is able to continue (or seek) employment, and maintain ties with his or her family. Offenders have much to gain from serving their sentences in the community. Whatever the benefits for offenders, however, victim interests must not be overlooked. From the victim perspective, community penalties have the advantage of increasing the likelihood that the offender will be able to work and pay compensation, in the vent that this is ordered by the court. In appropriate circumstances, a community sanction might also facilitate restorative objectives of acknowledgment and reparation of the harm done to the victim. At the same time, some victims, and victim rights' advocates, have expressed concern that the offender's presence in the community - particularly if he lives in the same neighbourhood - may cause additional suffering for the victim. This concern is only partially addressed by including as a condition of the community sanction that the offender is not to have contact with the victim.

If the offender has been convicted of a personal injury offence, particularly one of the more serious crimes, the victim may be apprehensive of further offending. In addition, some victim rights organizations have expressed the view that the imposition of a community sanction, even a community term of imprisonment, may depreciate the seriousness of the offence. Some victims may link the severity of the sentence to the harm inflicted; if the harm is considerable, and if a community sentence is perceived to be lenient or not properly enforced, community sentencing may exacerbate the suffering of crime victims. Whether crime victims feel this way is an issue that was explored in this research.

Research to date on community-based sentencing, and in particular the conditional sentence of imprisonment, has not explored the reactions of crime victims. It is a regrettable omission, in light of the importance of the victim in the sentencing process. We know very little about the reaction of a crime victim when the offender is ordered to discharge his sentence in the community.

The principal vehicle by which victims may provide input to the court at sentencing is the Victim Impact Statement (VIS). Victims in Canada have the right to make and deliver orally a statement describing the effect of the crime upon their lives. Courts are obliged to consider this statement when imposing sentence. Most of the research on victims and community sentencing has addressed the role and impact of the victim impact statement (see Roberts, 2003). The VIS is the vehicle by which victim interests at sentencing can be put before the court. For this reason, this study also explored the extent to which victims had submitted a victim impact statement.

1.2 The Conditional Sentence of Imprisonment

One of the elements of the Sentencing Reform legislation of 1996 was the creation of a new community based sanction, the conditional sentence of imprisonment. As will be seen, this form of custody in the community carries important consequences for victims. The ambit of the sanction is broad: if the other statutory criteria are met, a court may impose a conditional sentence of up to two years less a day. Since approximately 96% of custodial terms are under two years in length (Roberts, 2004), the conditional sentence can be, and has been imposed for very serious personal injury offences. The proportion of the most serious offences resulting in a conditional sentence is relatively small [2]; nevertheless, the impact on the victim cannot be ignored.

Although this research project explored victim reactions to community sentences in general, much of the discussion focused on the conditional sentence of imprisonment. The reason for this is clear: this sanction can be imposed only on offenders that the court has deemed must be sent to prison [3], in other words, offenders for whom no non-custodial sanction is appropriate. These are the more serious cases of offending. There is an obvious relationship between the seriousness of the offence and nature of victims' reactions. Victims are unlikely to have a negative reaction to the imposition of a term of probation, since it is likely to be imposed in a crime of relatively low seriousness. However, if an offender has committed a crime the seriousness of which requires the imposition of a term of imprisonment, and that individual is permitted to remain in the community, some (but by no means all) victims may find this outcome troubling. Victim reaction to conditional sentences may also play a significant role in how both those in the criminal justice system and the community at large accept conditional sentences as the most visible form of community sanction.

1.2.1 Community Custody vs. Prison

If an offender is sentenced to custody, victims know that for a specified period of time (subject to parole or statutory release), the offender will be in detention. Custody is a sanction with which members of the public and victims are quite familiar. Moreover, a sentence of custody carries conditions common to all prisoners (serving their sentences at the same security level). The critical variable of a sentence of imprisonment is the length of sentence. In contrast, a conditional sentence is far more flexible, and cannot easily be fixed on a scale of sentence severity. All conditional sentence offenders must abide by a limited number of statutory conditions. All of these conditions relate to the offender and none to the victim [4]. However, in addition, judges devise and impose conditions to reflect the specific needs of individual offenders, as they may emerge from sentencing submissions or from the Pre-Sentence Report (PSR). Optional conditions may also relate to victim interests if they are also reasonable and necessary "for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences [5]." In an important respect, these conditions define the nature and severity of the sanction.

1.3 Importance of Promoting Victim Understanding and Acceptance of Sanction

A number of conditional sentence judgments have referred to the importance of the views of the public with respect to the conditional sentencing regime [6]. As well empirical research has explored public knowledge of, and attitudes towards the conditional sentence (e.g., Marinos and Doob, 1998; Sanders and Roberts, 2004). This concern with community reaction to non-custodial sanctions is understandable. If the general public does not understand, or accept, the conditional sentence of imprisonment, judges will lose confidence in the disposition. If this happens, the sanction will eventually fall into desuetude [7]. However, crime victims represent an even more important constituency than members of the public. If victims are opposed to conditional sentencing, either because they have not been given sufficient information about the sanction, or for some other reason, this also creates a problem for the sentencing process. Or, put another way, if victims support the conditional sentencing regime, this will provide the sanction with some degree of legitimacy in the community.

In several respects, victim input is also important to the sanction. This is clear from R. v. Proulx ([2000] 1 S.C.R. 61), wherein the Supreme Court noted that the 1996 sentencing reforms were designed not only to decrease the use of imprisonment but also to expand the use of restorative justice principles in sentencing. The Court explained at para 18:

Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victims and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.

The Supreme Court of Canada has been more enthusiastic than courts in other countries about developing a "jurisprudence of restorative justice". It has identified "restorative justice both as a penal philosophy that focused on the needs of offenders, victims and the community affected by the crime and as a penal technique that involved community sanctions and was tied to restraint regarding the use of imprisonment." (Roberts and Roach, 2003 at 246-7).

The Court in R. v. Proulx also stated that "In determining whether restorative objectives can be satisfied in a particular case, [and hence whether a conditional sentence is imposed] the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim's wishes as revealed by the victim impact statement" (at para 113; emphasis added).

There is another element of the Proulx judgment that pertains to the interests of the victim. The Court noted that: "In my view the use of community service orders should be encouraged… By increasing the use of community service orders, offenders will be seen by members of the public as paying back their debt to society. This will assist in contributing to public respect for the law" (para 112). Once again the judgment is sensitive to the nature of public reaction: if members of the public see the sentence as having an important impact on the life of the offender, they are more likely to accept the sanction as a substitute for a term of institutional imprisonment [8].

The corollary of this proposition is that if the public believes the offender's life has not been changed by the sentence, support for the conditional sentence will decline. Victim input is important here too. If victims feel that the offender's life has been seriously constrained, they will be more likely to accept the sanction as an adequate substitute for a custodial sentence served in a correctional facility. On the other hand, if offenders are seen to be violating their conditions, or if the court order appears to have had little impact on the life of the offender, victims will have a negative view of the sanction. For this reason, victims' perceptions regarding the administration of a conditional sentence were one of the issues explored in this research.

1.3.1 Nature of the Input

The crime victim may have specific security needs that can be addressed by the conditions imposed. For example, victims may feel threatened if the offender visits their workplace or walks past their residence. In the research workshops on the role of the victim conducted for the Policy Centre for Victim Issues by Young and Roberts (2001), victims' advocates expressed concern over the adequacy of supervision of offenders serving sentences in the community. In addition, reparation is a key component of community sentencing, and the victim is best placed to provide input regarding this issue. These issues were therefore explored in this study.