CRIMINOLOGY Penology and Sentencing Sentencing As The

CRIMINOLOGY

Penology and Sentencing

Sentencing as the Means of Insuring Victims Justice

Component – I (A) - Personal Details Role Name Affiliation

Principal Investigator Prof(Dr) G S Bajpai Registrar National Law University Delhi Paper Coordinator Neeraj Tiwari Assistant Professor, National Law University, Delhi Content Writer/Author Nikhil Kashyap Assistant Professor, Amity Law School, Amity University, Noida, UP Content Reviewer Prof. BB Pande Former Professor, Faculty of Law, Delhi University

Component - I (B) - Description of Module Description of Module

Subject Name Criminology

Paper Name Penology and Sentencing

Module No. Criminology/Penology & Sentencing/23

Module Name/Title Sentencing as the means of insuring victim justice

Pre-requisites Basic knowledge of criminal procedure and trials.

Objectives The student will be able to argue the importance of Sentencing.

The student will be able to appraise the importance of victim at the stage of sentencing

The student will be able analyze the necessary steps that are required to realize the goal of restorative justice at the stage of sentencing.

Keywords Sentencing, Victims, Justice

1. Introduction Sentencing is a very crucial part of criminal trial. It is indeed the last part of the trial. Sentencing takes place after the conviction is made against the accused. There are various purposes of sentencing. They are as under:

Deterrence

Protection of Society Sentencing Denunciation

Rehabilitation

Deterrence refers to the process of avoiding similar future criminal conduct. Denunciation refers to the act of society that shows the feeling of hatred for the crime committed. Rehabilitation is the process by which the offender is reformed and rehabilitated to be a part of civil society. The latter purpose is to protect the society from the re-occurrence of the crime by the same offender.

There are various purposes or objectives of the sentencing. One of the main purposes of the sentencing is to protect the society. This aim is achieved by reforming the convict and preventing others (society) from committing the crime in future. Originally sentencing had three main purposes; justice, deterrent to the society & reformation of the convict. In all of these, the victim could only get revenge for the crime committed against him/her. Till date the pertinent question that remains

unanswered is that what does the victim expect from the sentencing and what does he actually get in the complete process of justice.

This module will be focusing on the concept of Sentencing, Its importance and its development. Further, the focus will shift on the role of victim in sentencing of the accused or in the criminal justice system. Subsequently, the role and expectations of victims in sentencing will be discussed.

Learning Outcome:

The student will be able to demonstrate the following:

Concept of Sentencing

Relationship between victim and sentencing

Role & Expectations of Victim from Sentencing

2. Sentencing: concept & its importance

2.1 Sentencing as concept The ancient Indian author Manu stated that the most important sanction behind any state is force. He further adds that the If the force is not used, then the law of the jungle will prevail. He says Danda is the only saviour of people’s life and property. He acknowledges the importance of using the physical force in the rightful manner. The only way that a man might be kept pure and righteous was by fear of danda (punishment) (VII.22-24).1

The modern Sentencing (or danda) is defined as the punishment given to a person convicted of a crime. A sentence is ordered by the judge, based on the verdict of the

1Manu: Legal Jurisprudence & Social Laws by Dr. Ruchi Tyagi Associate Professor Department of Political Science Kalindi College available at http://kalindi.du.ac.in/uploads/polsc/MANU%20on%20Legal%20Jurisprudence%20&%20Soci al%20LAws.pdf

jury (or the judge's decision if there is no jury) within the possible punishments set by state law (or federal law in convictions for a federal crime). 2 In other words, sentencing means the amount of jail, fine, community service etc are ordered against him against committing of a crime.

2.2 Factors leading to a Sentence 47th Report of Law Commission of India on the trial and punishment of the social and economic offences stated many factors for sentencing an offender. They are provided as under:  the nature of offence,  the circumstances extenuating or aggravating the offence,  the prior criminal record if any of the offender,  the age of the offender,  the professional, social record of the offender,  the background of the offender with reference to education, home life, the mental condition of the offender,  the prospective rehabilitation of the offender, the possibility of treatment or training of the offender,  Lastly, the sentence by serving as a deterrent in the community for recurrence of the particular offence. The apex court of the country also stated various factors in reaching a composite and satisfactory sentence. In Re. Gopal Singh Case (2013) 3 suggested the considerations while passing the sentences. The court stated that:

“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the

2 Law.com available at http://dictionary.law.com/Default.aspx?selected=1917 3 Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545

antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.”4

The above stated case provided factors related to the sentencing and reforming the offender.

2.3 Importance of Sentencing It is a general belief in Courts that sentence should suit the crime as well as criminal. The sentencing is a very important part of the criminal justice system. The Supreme Court in Dhananjoy Chatterjee v. State of West Bengal5stated the importance of appropriate sentence. The court stated that:

4Ibid 5 (1994)2SCC220

“Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.”

These lines provide that the sentencing is a medium for the judiciary to respond back to the society’s cry for justice. Punishment provided in a case is the outcome of the criminal trial in a court. If the resultant is not appropriate, even though the process was perfect, still the process will remain a complete failure. So, the sentencing part is very important to reach the correct resultant of the criminal trial.

3. Victim in Sentencing

It is pertinent to start with the importance of the victim in the state of criminal justice in India today, the Government Notification constituting the Criminal Justice Reforms committee (Malimath Committee) observed:

“...People by and large have lost confidence in the Criminal Justice System .... Victims feel ignored and are crying for attention and justice ….. There is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.” 6

From the victim’s perspective there can be two set of rights that are considered in many jurisdictions across the world. First right is right to participate in criminal proceedings and lastly, the right to compensation for the injuries suffered etc. In a criminal proceeding the most important part is of sentencing as there are many factors that might make the sentence harsh or light. Both the scenarios of the sentencing are not good for the society at large.

In the year 1985, the United Nations General Assembly adopted the Declaration of Basic principles of Justice for Victims of Crime and Abuse of Power in which one of

6As provided in Malimath Committee Report, p 75.

the rights was providing assistance to the victim during the criminal trial.7 Recently, the debate has been initiated with regard to the inclusion of victim’s perspective in reaching the correct sentence. In the previous section, we referred to the concept of sentencing as well as various factors leading to composite sentencing.

Sentencing is a very crucial aspect of criminal justice system. The Apex Court stated the importance in Alister Anthony Pareira Vs. State of Maharashtra.8 The apex court states that:

“Sentencing policy is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing and accused on proof of crime. The courts have evolved certain principles: twin objectives of the sentencing policy are deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

7i. Access to justice and fair treatment – This right includes access to the mechanisms of justice and to prompt redress, right to be informed of victim’s rights, right to proper assistance throughout the legal process and right to protection of privacy and safety. ii. Restitution – including return of property or payment for the harm or loss suffered; where public officials or other agents have violated criminal laws, the victims should receive restitution from the State. iii. Compensation – when compensation is not fully available from the offender or other sources, State should provide financial compensation at least in violent crimes, resulting in bodily injury for which national funds should be established. iv. Assistance – victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary and community-based means. Police, justice, health and social service personnel should receive training in this regard. 8 AIR 2012 SC 3802

In another case9, the Supreme Court held that "The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim is irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."

In the above-mentioned cases, the principles for the guidance in sentencing for judges in the sentencing part of the criminal trial are suggested. It is important to note that the victim’s participation in the sentencing is not even considered for sentencing the offender. According to the apex court, the plight, pain harm etc. suffered by the victim should not be a factor in sentencing the offender. The pertinent question that is required to be answered is ‘Is this the complete ‘JUSTICE’ we want from our criminal justice system.

In other jurisdictions across globe there have been various ways of involving victim in the criminal justice system. In Australia, there is a concept of ‘Victim Impact Statement’. 10 This statement may be provided by the victim at the stage of sentencing. It is important to note that this is optional. There is no boundation created by the law for its strict compliance. In the year 1988, Canada included the concept of victim impact statement, restitution preferred over punishment and created victim surcharge, even though, most of the processes or changes introduced in the criminal justice system were unsuccessful. In contrast, the introduction of the victim impact statement does not impose an enormous fiscal burden upon the government and as

9 State of Karnataka v. Krishnappa, AIR 2000 SC 1470 10 For further understanding of process if sentencing in Australia, please read ‘The Role of Victims in sentencing’, Available at http://www.lawreform.vic.gov.au/content/9-role-victims- sentencing

such should not be doomed to failure, yet studies suggest that the victim impact statement has not had a dramatic impact on the sentencing landscape.11

In India, there is no bar on victim’s representation in the court with regard to the consequence of the crime. But there is no specific provision or the due process of law for the same. It is important to understand that when there is no sanction of law or backing of the law, rarely any new practice is introduced in the system. In the recent past, criminal amendments were introduced through which the definition of victim12, victim compensation schemes13 etc. were brought in the statute book.

There are other ways in India through which the victim is involved in the justice system. After the 73rd and 74th Amendment the concept of Panchayati Raj System was introduced in the legal system. At panchayat level petty cases are heard and during the process the impact on the victim because of the crime is also considered while adjudicating the case. However in rural India it has been observed that there is awareness about the Panchayati Raj system which tries to dispense justice at

11 Alan N. Young, Victims of Crime Research Series: The Role of the Victim in the Criminal Process: A Literature Review — 1989 to 1999 available at http://www.justice.gc.ca/eng/rp- pr/cj-jp/victim/rr00_vic20/rr00_vic20.pdf 12 Section 2 (wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal their; 13 357A. Victim compensation scheme. - (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.

minimum cost and the perspective of the victim is secured. The judiciary does not have the scope to act in Panchayati raj system as it is subservient to the executive as the heads of panchayats are elected. One more major drawback that is faced is that the heads of panchayats are not learned in law; in many circumstances they don’t even have school level education and literacy.

There are some criminal cases which are against an individual more than it is against the society. These types of offences can be compounded without the permission of the court under the sub section (1) of 320 of the Criminal Procedure Code, 1973. The offences under this category are: hurting religious feeling of a person, hurt, confinement, mischief, criminal trespass, adultery, defamation etc14. This procedure was introduced however with the aim to only dispose the number of pending cases, not to strive on the path of restorative justice. Above are the few initiatives in India and abroad to include victim in the criminal justice system.

4. Role & expectations of victims from sentencing

The question is what is the expectation of a victim from a criminal trial? The answer can be justice or revenge or something else. Does concept of justice differ for victim or offender or state’s perspective? Yes it does. The answers to the abovementioned questions are subjective in nature. For this part of the module, we are concerned about the victims thought of justice.

In the previous sections, we have discussed about the non considerationon the part of Indian criminal judicial system with regard to the victim’s expectations from the sentencing. In the English Case of R v. P, states the importance and reliability of victim as evidence in a criminal trial. The court held that:

... because in our adversarial system of criminal justice the victim is not directly represented and has no more right to be heard in the sentencing process than in the trial, a difficulty arises as to how information relating to the effect on the victim is to be gathered and presented to the court. That

14 Dr. G. S. Bajpai’s paper on “Towards Restorative Justice” available at http://www.forensic.to/webhome/drgsbajpai/towards%20restorative%20justice.pdf

reliable information of that nature should be presented is in the public interest, not only in the interest of the injured victim (or of the accused, if the victim has escaped relatively unharmed), since a proper sentence should not be based on a misconception or ignorance of salient facts. There is not necessarily any unfairness or impropriety in the representative of the Crown assisting in this regard. The prosecutor appears in the public interest and has the role of assisting the court in reaching a fair decision rather than exclusively advocating a particular interest.15

The abovementioned case states that the victim as an evidence is unreliable. Unfortunately, Indian judicial system is following the same opinion with regard to victim as evidence in the court of law. This perception needs to be changed or the approach towards the victim’s pain and hardship has to be revisited.

Another pertinent aspect is the expectations of victim/s from the sentencing in a criminal trial.

15 R v P (1992) 64 A Crim R 381, 384

It can be inferred from the above-mentioned study that the general view of the victims at large is that sentence should be effective and the criminal justice system should ensure that the offender does not commit the same offence again. This research is very successful and impressive with aspect of involving victims to reach the conclusion that sentencing is a very important aspect of criminal trial where they should be necessarily be heard.

The probable expectations of the victims from sentencing are provided as under:  The inclusion of victim impact statement or victim personal statement in the criminal procedure should be made at the legislature level.  The submission of victim impact statement or victim personal statement should be made mandatory for the sentencing purposes. As these statement/s will provide the effect of the crime or offence on the victim or his/her family member.  The sentencing should focus on rehabilitation of offender. The rehabilitation should be of such a nature that it ensures that the offender will not repeat the crime again.  A study is required with respect to the duration of the sentences and their effectiveness in achieving the goal of rehabilitation.  Innovative methods of sentencing should be adopted like community service or sentencing. These methods may not be 100% successful as the offenders may fail in community service.  Every legal system depends on certainty as its primary object. For reaching the abovementioned goal, it is necessary to make the process of sentencing transparent and effective.  The participation of the victim/s should be made mandatory in sentencing stage of a criminal trial. The prosecutor should ensure their participation the sentencing process.  There are many victims who are illiterate or who do not have any legal background, the Court should ensure that the sentences are explained to them in the language in which the victims or legal representatives are comfortable. This step will create the faith of the victim in the criminal justice system.

 Step by step communication of the judicial proceedings should be made to the victim or his legal representatives by the state for better understanding of the procedure.  The need of the hour is that the different stakeholders (like victims, NGOs dealing in restorative justice, judges, retired judges, advocates etc.) should come together and create a mechanism of realizing the broad goals created by restorative justice.

Victim’s perspective of justice in India is not supported by any exhaustive legislation per se, but we do find its traces and fragments in precedents.The need of the hour is either the amendments in the existing law are introduced or the new law supporting the concept of victim oriented justice system is to be enacted. The concept of retributive justice often over-rides restorative justice considerably because of high number of cases pending in district criminal courts and legal awareness in which India ranks 59th according to a study in the United States where criminal justice system was assessed.16

When we compare criminal justice system to victim oriented justice system the broad line of difference is that in criminal justice system the crime committed violates the Law and State, on the other hand in victim oriented justice system, the crime committed violates people and obligations which are to the contrary. Crimes committed against have increased gallantly in recent past which is alarming and calls for reforms in current criminal justice system which is more inclined towards retributive system of justice. Some guiding principles could be made from formation of a Law Commission which would praise the plight of restorative justice in India as this system is need of the hour for a civilized and prosperous society.

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16Affairs Cloud by Sendhill available at http://www.affairscloud.com/india-ranks-59th-in-the- rule-of-law-index/.