Victims’ mitigating views in sentencing decisions : a comparative analysis

Abstract

This article explores the arguments for and against victims‟ mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims‟ recommendations as to penalty must be avoided. However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims request a more lenient sentence. Several case studies from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court taken proper cognisance of these comparative legal developments, it would, at very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process.