Victim’s impact statement should have been taken into account by Magistrate

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A child sex victim should have been given a voice during the sentencing of the man who molested her, according to the Chief Justice.

He criticised Magistrate Khamisi Tokunbo for failing to take a statement from the 12-year-old girl into account just because the prosecutor was late in delivering it.

In the statement, the girl told how she cried every day for a year and had nightmares over Joshua Crockwell, who got her to give him oral sex.

Crockwell was a 20-year-old firefighter at the time.

Chief Justice Ian Kawaley printed the girl’s account of her pain in a ruling where he rejected attempts by prosecutors to win a tougher punishment than the 15-month suspended sentence Crockwell was handed in May by Magistrate Khamisi Tokunbo (see main story).

Mr Tokunbo refused to take the statement into account because prosecutors should have filed it in advance. It was not produced until he was just about to impose the sentence, and he felt it would have been “wrong and unfair” to consider it at that stage.

Mr Justice Kawaley noted that the Magistrate “had a full list of other matters to deal with” that morning, and his irritation was understandable.

However, he said, Mr Tokunbo “adopted the wrong approach” as victim impact statements are an “important statutory requirement” to “give victims a voice” and it is mandatory under the Criminal Code to consider them.

He want on to say: “Although the potential scope for victim impact statements to be used is wide, their import is clearly greater in some cases than in others. The field of sexual offences, particularly where the victims belong to a traditionally vulnerable and legally discriminated against class — such as women and children — is an emblematic area for heightened scrutiny of the fairness of the entire trial process for the victim.

“Accordingly, when there is a collision of interests between procedural good order and the need to ensure that justice is both done and seen to be done from the perspective of the female child victim of a sexual offender, the interests of the victim must prevail.”

The Chief Justice said he wanted to “formally acknowledge the failure of the proceedings below (at Magistrates’ Court) to adequately give voice to the victim’s perspective at the sentencing stage in this respect”.

He said: “Had the complainant’s victim impact statement been received as it ought to have been, it could have been read out at the sentencing hearing. This could have had more than symbolic significance for the victim herself. If the remarks had been published, they could have inspired other victims to report or to recover from similar offences and possibly helped to educate the respondent (Crockwell) about the consequences of their offending.”

He therefore published the victim impact statement the court was meant to hear in his written ruling yesterday, correcting spelling errors in brackets.

In it, the girl wrote: “When I was sexually [assaulted] I kept it to myself for almost a year before I told my parents because I was afraid how they were going to react. I kept crying every day. I told them nothing was wrong. I didn’t sleep that well because of the types of nightmares I was having. I was scared that he would send one of his friends and tell them to do something bad to me or my family.

“The court experience was scary and even though my name was not revealed in the news, people still found out it was me and I had embarrass[ing] moments about what they were saying. It [a]ffected me so much that I had to go to [counselling] at Teen Services and I had to see the [counsellor] at my school regularly.”

She added: “This experience has made me less trusting of boys, their actions like negatively saying things that would hurt me. I’ve now chosen to hang around better people and share my problems with my parents and now focus on my sports and my school work. I’ve put all this behind me and I want Joshua to stay away from me and let me live my life.”

Although the Chief Justice criticised the Magistrate over the victim impact statement, he upheld the sentence that he eventually imposed.

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