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 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

Sentencing

Deterrence

Denunciation

Rehabilitation

Protection of Society

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:

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&%20Social%20LAws.pdf

Concept of Sentencing

Relationship between victim and sentencing

Role & Expectations of Victim from Sentencing

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.

*****

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