Madeleine Laracy
Madeleine Laracy
The way individuals are harmed and the way they experience and describe the harm is personal to them and almost infinite in its variability.
In December last year LawNews published What you can and cannot say in victim impact statements. My opinion piece is offered in response. It sets out the role of public prosecutors in assisting victims to provide these statements and in key respects I put a different view.
Prosecutor’s role
The Victims’ Rights Act 2002 sets out the purposes of Victim Impact Statements (VISs) and the role of the prosecutor in producing them. The Solicitor-General’s Prosecution Guidelines provide prosecutors with further guidance.
The prosecutor’s job is primarily to make sure victims know the purposes of the statement and therefore what they should include. Prosecutors must then ensure the victim verifies the content as being true and submit it to the court in a timely manner.
Prosecutors do not to write the statement. Advising victims of the purposes and nature of information sought involves consideration of the legal boundaries. Those boundaries are more accommodating than the 2025 article suggests.
The boundaries are principles that must be applied in specific cases. If, having correctly informed the victim of the purposes for which information is sought, a statement falls on uncertain ground relative to the statutory purposes or is expressed in strong language, there may be a deciding role for a judge.
It is not the sole task and responsibility of the prosecutor to determine what a victim can properly say, and they can certainly say more than the previous article indicates.
Controls and formality
When sentencing an offender, the court needs to understand and reflect the public interest in responding to a proven public harm. The defendant has been convicted after a fair process, and the court must consider the circumstances of the offender and of the offending, which includes the impact on those harmed.
People who have been most harmed by the defendant’s conduct are entitled to publicly express the impact on them with natural emotion and in their own words. The control and formality required of a public court process must be borne in mind, as must the permissible bounds, judged primarily by the statutory purposes of VISs and sentencing.
The purposes of the Sentencing Act 2002 include to “promote in the offender a sense of responsibility for, and an acknowledgement of, … harm” and to “provide for the interests of the victim of the offence”. One of the principles the court must take into account when sentencing is the effect of the offending on the victim. A judge must take into account the extent of loss, damage or harm resulting from the offence.[i] This information is usually put before the court in the statement.
Timeframes important
Victims are often highly vulnerable and find it difficult to get started on their statement until the deadline is looming and many struggle to find the words to express themselves.
We must not underestimate how difficult it can be for people, many of whom are traumatised, to reopen these feelings and put complex impacts into words. Once they have managed to do this, it can be hugely upsetting and disempowering to be asked to remove parts of the statement, or to change the way they have expressed themselves.
This is a heavy task, and one the Solicitor-General expects prosecutors and police officers will sometimes need to undertake before submitting a VIS. When a statement is provided to a prosecutor with inappropriate material – overly inflammatory or beyond the scope – this should be discussed with the victim prior to the sentencing hearing and the problem explained.
We expect the prosecutor to seek to redact the material or, if that is not reasonably possible, to acknowledge to the court that it should not be taken into account.[ii]
Prosecutors make best efforts to file and serve statements at the same time as sentencing submissions. For many reasons, even with best efforts, VISs can come to a prosecutor late and are then filed when available.
This is no different from many pieces of information relevant to sentencing. I welcomed the June 2025 change to the Criminal Procedure Rules 2012, requiring prosecutors to “use best endeavours” to file statements at least five working days prior to sentencing.[iii]
This new rule is taken seriously and at the same time has an aspirational quality: prosecutors are still obliged by the Victims’ Rights Act to file a statement they receive later.[iv] This simply reflects that prosecutors support the process but do not control it.
I understand that later this year the timeframes for filing sentencing submissions and VISs are likely to move even earlier (12 days prior to sentencing for Crown submissions and VIS, 6 days for defence).
A requirement to provide VISs ahead of sentencing allows defence counsel and the court more time to consider any material in it that has passed the prosecutor’s prior assessment but which they consider should be removed.
Late filing makes matters more difficult for everyone, including victims. A larger window between filing and the sentencing hearing gives the prosecutor time to talk to the victim about the need for redaction (rather than it occurring in a rush just before the pressure of the hearing), or respond with reasons why the content should indeed remain as it is.
As I discuss below, difficult subjective questions of tone, style, scope and language choice can arise. The Victims’ Rights Act, in my view, envisages that after the prosecutor has conscientiously carried out their role, it is for the judge to make the decision as to how a statement should be dealt with where stubborn or finely nuanced questions of this sort remain.
Existing statutory guidance
The statutory framework confirms a broad ambit for content. It must be relevant to the purposes and principles of the Sentencing Act and, as noted, the harm caused to victims is a mandatory consideration for judges.
Statements may reflect, in the victim’s own words, relevant aggravating or mitigating factors. The Victims’ Rights Act governs the form and provides more detail. It is both directive and permissive in scope. says a statement should contain information about:
- any physical injury or emotional harm suffered by the victim through, or by means of, the offence; and
- any loss of, or damage to, property suffered by the victim through, or by means of, the offence; and
- any other effects of the offence on the victim; and
- any other matter consistent with the purpose of victim impact statements set out in section 17AB.
Section 17AB says the purposes of a VIS are to:
- enable the victim to provide information to the court about the effects of the offending; and
- assist the court in understanding the victim’s views about the offending; and
- inform the offender about the impact of the offending from the victim’s perspective.
Section 17AB was inserted in 2014. The purpose of the reform included “to widen the scope of what victims may include in their victim impact statement”.[v]
There was also a recent reinforcing amendment in the Sentencing (Reform) Amendment Act 2025. Section 8(1)(f) of the Sentencing Act now specifically references VISs and provides that the sentencing judge must take into account any information provided to the court—
(i) to help to recognise the victim’s needs in the court’s sentencing or otherwise dealing with the offender according to law; and
(ii) concerning the interests of the victim (for example, about the effects of the offending on the victim).
In time the Solicitor-General may consider further prosecutor guidance about the practicalities of the prosecutor’s role with VISs. But in most respects the law is clear, and controversies really come down to how a victim has expressed themselves in a particular case and how “relevant” their contribution is to the sentencing exercise.
Content issues
The LawNews article implies it is impermissible for victims to refer to the impact the court process itself has had on them and, if the process is harmful to them, the article suggests victims can avoid attending court.[vi]
For people working with victims, that perspective is artificial and unrealistic, and in part incorrect.
The court process is one of the impacts the offending has had on the victim. Victims would not have gone through the court process if the offending had not happened. It has direct “bearing” (to use the article’s word) on the crime being considered.
The Prosecution Guidelines recognise that victims may experience trauma from their involvement in a criminal justice process,[vii] and, consistent with good practice in other social contexts and overseas, our prosecuting agencies are seeking to be more informed about trauma responses.
As to avoiding court, many victims are in fact compelled to attend court as witnesses. But in any event, if the process is itself harmful, the harm cannot reasonably be reduced to an ordinary “choice” they have brought upon themselves when “not compelled” to attend.
Many victims need, at a human level, to attend court hearings to hear a public account of their experience and to see justice being done. The Victims’ Rights Act and sentencing process reflect a policy view that Aotearoa New Zealand should recognise and support victims’ special interest in criminal justice, and also their special fragility when exposed to justice processes.
No prosecutor will suggest a sentence should be increased to reflect the fact an offender has exercised their right to “put the Crown to proof”. But it does not follow that victims should sanitise out of their statement the impact of the criminal process on them.
It is for the judge to decide what weight to place on this impact.
Similarly, victims may refer to impacts of the offending that are indirect or which seem unconnected to the offending, but which are felt by them to be connected. Such remarks are not inconsistent with the scope of VISs, which are meant to reflect the victim’s genuine view of the impact. Prosecutors, defence counsel, and judges should be slow to say the victim’s reasoning is “wrong.” It is well known that trauma responses may not present as logical thought processes.
Overstepping the boundaries
Two other issues which can overstep the bounds, but not necessarily so, are where victims want to mention other (uncharged or prior) offending by the defendant and where victims speak directly to the offender.
The Prosecution Guidelines takes a cautious approach and recognises that such comments can cause problems and may require redaction. However, as always, a case-specific judgment is required by the prosecutor and potentially by the judge.
Victims may see uncharged conduct as being part of a pattern or part of the overall impact on them. If a comment seems gratuitous, antagonistic or wholly unrelated, it should be removed. But if there is a link between separate incidents, or if different experiences are hard for the victim to separate out, the mention of it by a victim should not be treated as impermissible.
Even where the prosecutor is not relying on a prior alleged incident as a specific aggravating factor, judges retain the ability to be flexible in receiving the information in the statement as a reflection of the victim’s view. Judges can be clear, if necessary, that they put no weight on it and prosecutors can prepare victims for that outcome.
There is also no rule of law prohibiting a victim from addressing parts of their statement directly to the defendant.
Prosecutors need to consider the tone and purpose of any such comments and will on occasion need to ask victims to reword them. However, victims can use their own “voice”, in writing or speaking, so long as what they are saying is within scope and expressed reasonably.
It must not be invective, but a purpose of a VIS is to “inform the offender about the impact of the offending from the victim’s perspective”.
The circumstances and how it is said will be the guide for what is acceptable. Individual sentencing exercises should be able to recognise that some victims best express the harm caused to them by personally addressing defendants, even though this may feel untraditional or confronting in a court setting.
Expressing emotional impact
The article expressed the view that the appropriate place to “vent” at a defendant is at a restorative justice meeting, not sentencing. The article also commented that victims “can talk about what financial cost there has been or what physical harm has been done”.
It is not clear if it was suggesting these are the only things that can be put in a statement, but it does not mention the validity of emotional hurt, trauma, upset and anger.
A VIS can properly show strong feelings or summarise details with adjectival language and, notably, the emotional impact of offending is expressly permitted (s 17(2)(a)). If the LawNews article suggests otherwise, it is wrong.
The Adams commentary and law are clear:
“It is unrealistic to expect that [a VIS] can be devoid of all emotive language, as it should authentically express the views and feelings of the victim. For example, anger on the part of the victim may be one of the effects of the offence, and conveyed either directly or indirectly by the victim expressing that anger in what is said: R v Ofakineiafu CA301/04, 8 December 2004.
While s 17 obliges the prosecution to take all reasonable steps to gather information as to the emotional harm suffered by victims through, and by means of, the offence, the detailing of harm can be an arduous process and victims should not necessarily have to detail all the ways they have been emotionally harmed: Ocean Fisheries Ltd v Maritime New Zealand [2021] NZHC 2083, [2021] 3 NZLR 443.”
Prosecutors will seek to avoid material that is sensational or might be seen as inflammatory, but the nuances of personal expression and voice are a difficult topic to govern.
Prosecutors discuss with victims the redaction of clearly inflammatory or abusive material, but the assessment is subjective and the line not always clear. Prosecutors are then in a difficult position. Where there are finely-balanced questions of tone, it can quite properly be the judge, rather than the prosecutor, who decides.
Victims should not feel they are losing their own voice or being overly censored at the one point in the process where they are entitled to be heard on how they have experienced harm and what it has meant for their lives.
Judges are well experienced at sifting the relevant from the irrelevant, the proper from the questionable, and saying what material they find useful at sentencing.
Madeleine Laracy is the Deputy Solicitor-General (Criminal), at Crown Law | Te Tari Ture o te Karauna
Footnotes
[i] See sections: 7(1)(b), (c); 8(1)(f); 9(1)(d) Sentencing Act 2002 and other victim-specific aggravating factors: s 9(1).
[ii] Prosecution Guidelines, Victims, 63.2.
[iii] Criminal Procedure Amendment Rules 2025.
[iv] Victims’ Rights Act 2002, s 21.
[v] Explanatory note. This was the same amendment that introduced the mandatory restorative justice referrals.
[vi] The Law Association offered the view that this material should not be part of VISs: “victims often wanted to talk about how traumatic they found the trial process and sitting through evidence, although that had no bearing on the crime being considered for sentencing and victims are not compelled to attend court”.
[vii] Prosecution Guidelines, Victims, 54.
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