7. The use of reparation as a sentence
7.1 Introduction
7.2 Use of reparation for all offences in 1998
7.3 Use of reparation for property offences
7.3 Use of reparation for property offences [Continued]
7.1 Introduction
The Criminal Justice Act 1985 replaced the old compensation order (frequently referred to as restitution) with the new sentence of reparation. When first introduced, Section 11 of the Act established a presumption in favour of reparation: "In every case where an offender is convicted of an offence for which a sentence to make reparation may be imposed, the court shall impose such a sentence (whether by itself or in conjunction with any other sentence or order) unless it is satisfied that it would be inappropriate to do so". Under Section 22 the court could sentence an offender to make reparation when the court was satisfied that any act or omission that constituted the offence caused any loss of or damage to any property of another person. A 1986 amendment to this section of the Act authorised Courts to sentence the offender to reparation when the Court was "satisfied that any other persons suffered any loss of or damage to property through or by means of the offence ...".
The statute was further amended in 1987 to provide that the reparation sentence may also be imposed where the Court is satisfied that any other person suffered emotional harm through or by means of the offence.
The Criminal Justice Amendment Act 1993 strengthened the wording of Section 11 of the principal Act so that "The court shall consider imposing a sentence of reparation in every case, and, subject to section 22 of this Act, shall impose such a sentence unless it is satisfied that it would be clearly inappropriate to do so". Section 12 of the Act was also amended to allow the courts to take into account any offer of compensation, whether financial or by means of the performance of any work or service, by or on behalf of the offender to the victim. Prior to this amendment "compensation" would generally have been taken to mean only financial compensation.
The reparation sentence was examined in depth about four years after it was first introduced. The findings of that investigation were presented in Galaway and Spier (1992). This chapter presents information on the use of reparation over the period 1989 to 1998, and in particular, examines whether the amendments to the Criminal Justice Act in late 1993 had an effect on the use of reparation in subsequent years.
7.2 Use of reparation for all offences in 1998
Reparation can be imposed on an offender when a victim has suffered property damage, property loss or emotional harm through or by means of a criminal offence. Table 7.1 shows that property offences are the most likely to result in a reparation sentence, with 21% of such charges (footnote 3) resulting in a reparation sentence in 1998. The proportions for the other offence types were very much lower, with violent offences (4%) being the next highest category. It should be noted that Galaway and Spier found that, in the time period covered by their study, around 41% of property offences and 96% of offences against the person (i.e. either violent offences or other offences against the person) resulting in conviction involved no financial loss to the victim. Therefore, for these charges, reparation for property damage or loss could not be imposed (although it could still be imposed for emotional harm suffered through or by means of the offence). Also, Spier (1997) reported the results of some research by Patricia Knaggs of the Ministry of Justice of reasons for non-use of reparation for property offences. The reasons most commonly cited by judges for not imposing reparation were that the loss had been made good or the property was recovered, or that there was no victim loss or an insignificant (i.e. minimal) loss. Information on whether there was a financial loss to the victim is not available in the current data.
Table 7.1 Whether convicted charges resulted in a sentence of reparation in 1998, by type of offence
|
Offence type |
Resulted in reparation |
Did not result in reparation |
||
| q |
Number |
Percentage |
Number |
Percentage |
|
Violent |
611 | 3.8 | 15589 | 96.2 |
|
Other against persons |
44 | 1.2 | 3494 | 98.8 |
|
Property |
11230 | 21.0 | 42266 | 79.0 |
|
Drug |
13 | 0.1 | 14170 | 99.9 |
|
Against justice |
49 | 0.3 | 15652 | 99.7 |
|
Good order |
114 | 1.1 | 10457 | 98.9 |
|
Traffic |
837 | 1.3 | 61480 | 98.7 |
|
Miscellaneous |
327 | 3.2 | 10048 | 96.8 |
|
TOTAL |
13225 | 7.1 | 173156 | 92.9 |
Eighty-five percent of the reparation sentences imposed in 1998 involved property offences, and property offences accounted for 78% of the total amount of financial reparation imposed in 1998 ($9.7M of the total $12.4M).
Two individual non-property offences did result in reparation for a significantly greater proportion of charges than for the major non-property offence categories indicated in the table above. Twenty-five percent of driving causing death offences and 17% of driving causing injury offences resulted in reparation in 1998.
It should be noted that it is not possible to identify from the data whether reparation was imposed as the result of property damage or loss, or as the result of emotional harm. It is also not possible to detect whether reparation sentences were imposed for part or the full amount of the victim's financial loss. Finally, using data from the Case Monitoring Subsystem of the Law Enforcement System it is not possible to determine whether imposed reparation sentences were actually paid.
3. Convicted charges are used in the analysis in this chapter. Charges are much closer than cases to being victim-based and reparation can potentially be imposed on all charges where there is property damage or loss, or where there is emotional harm to the victim.
