newsletter of the court-referred restorative justice project - august/september 2002 - issue#11
Inside this issue
Restorative justice is ensuring that the community's voice isn't lost in the court system, says facilitator Michelle Tawhai Werekake-Apelu.
New Zealand's lead in developing restorative justice processes will soon be aired on television screens in Britain and Australia.
Emotions Run High
A powerful emotional experience...
That is the way Auckland District Court police prosecutor Jason Mackie described his first experience of a restorative justice conference.
"I wouldn't have appreciated the emotion involved without going." Jason had the opportunity to attend a court-referred conference as an observer - an opportunity that he feels privileged to have been granted.
He is writing a paper on restorative justice as part of his law degree.
Jason says it is important for lawyers and police to understand the restorative justice process, although he warns that their presence at a conference could sometimes stifle honest and open communication between victims and offenders.
"A conference allows a lot more informal interaction between victims and offenders than a courtroom.
"The nature of the court environment and the procedural aspects of court can leave victims feeling powerless. The restorative justice conference I attended enabled the victims to be empowered."
The conference involved a case of serious assault.
"What struck me is the fact that there was a lot of whanau and children at the conference.
"I think it would have been a lot more hostile without those children."
Jason sat between a victim and the offender and could "sense the hostility."
The conference produced forgiveness towards the offender, although there were still issues unresolved, as others were involved in the assault who weren't at the conference.
Jason says the conference enabled the victims to express their feelings in their own words.
Often a victim impact statement is written by someone involved in the system, and it is hard to express the emotional harm suffered by victims in words on paper."
The conference took two hours - something Jason said could never be catered for in the normal busy system where as many as 20 sentencings are scheduled for one day in court.
Jason says that restorative justice should not replace the normal court system, but can work well in conjunction with it.
Chance to Laugh, Cry and Be Angry
Restorative justice is ensuring that the community's voice isn't lost in the court system, says court-referred restorative justice facilitator Michelle Tawhai Werekake-Apelu.
Michelle, who works for Central Youth and Family Net (CYFN) in the Onehunga Community House, has been appointed to the court-referred restorative justice pilot's national liaison committee.
Of Nga Puhi and Te Mahurehure descent, Michelle's first liaison group meeting in Wellington meant visiting the capital for the first time in 27 years. "Last time I was there was for the Maori land march in 1975."
Michelle's background is in community and youth work, with a focus on justice in recent years.
CYFN, which operates under the umbrella of Te Waka No Nga Hau e Wha, has been involved in a form of restorative justice developed over a number of years that brings together victims, offenders, schools, police, elders and the community in Auckland and Northland.
"We'd been doing this mahi for years but didn't have a name for it. We didn't know that restorative justice was the buzz word."
However, the pieces of the jigsaw fell together on the last day of applications for facilitators and provider groups wanting to be involved in facilitation for the court-referred pilot.
Te Waka No Nga Hau E Wha won a contract to be a provider group—a major breakthrough for a group used to being "paid in oranges and apples." The group, which has two part-time workers and 13 volunteers, offers social and justice services that often involve crisis intervention.
"We often see whanau from all walks of life when they have been hit very hard in life."
Restorative justice has provided a vehicle for the group to help people to break the cycle of crime and for "grown men to voice themselves. A lot of these people have been around the block several times."
CYFN's holistic approach has produced some stunning results. One involved a 32-year-old who had been on the streets sleeping under bridges since he was 13. "For 18 months our youth and whanau workers walked with him, helping him to learn to read and write. It's a privilege to see this man realise his dreams."
He is now studying for a Bachelor of Science at Auckland University and has been involved in a number of restorative justice processes with victims of his crimes over the years. Facilitators from CYFN have been involved in more than 10 court-referred conferences.
Michelle says that restorative justice offers an opportunity for the community to have its views passed on to the courts.
She believes that it is important for both the community and those involved in the pilots to listen to each other. "It's about creating a balance."
Sometimes conferences are so emotional that it seems a reconciliation will never happen. "It is such a privilege to be there. All these people talking, crying, laughing, saying how pissed off they are, whatever. I never underestimate or assume what will happen at a conference. We remain non-judgemental."
CYFN debriefs its facilitators immediately after the conferences because of the emotional energy involved. "We just check everyone's okay. If our kaimahi are not well, how on earth can we do our jobs? We laugh, cry and try to uplift each other."
BBC Films NZ Restorative Justice
New Zealand's lead in developing restorative justice processes will soon be aired on television screens in Britain and Australia.
A documentary was recently filmed in New Zealand for the BBC's Foreign Correspondent programme.
"They wanted to find out where the idea of restorative justice originated from," says documentary producer Mihingarangi Forbes.
The documentary looks at a victim and offender involved in a community-based youth restorative justice project in Feilding, and a victim and offender who took part in the court-referred project in Auckland. "It follows them through the process from the beginning to the end," says Mihingarangi.
The hour-long documentary also features interviews with Pita Sharples, Judge McElrea, restorative justice facilitators, and Alan Duff. It is due to screened on the BBC in early 2003. The ABC in Australia has also bought the documentary. Michelle (front left) at a community development day.
Personal Process Between Victim and Offender
Waitakere probation officer Marie Rowan believes that restorative justice has a role to play in ensuring victims aren't excluded from the system.
"Restorative justice can restore the relationship between the victim and the offender.
"It's a good thing because so often when someone gets burgled or a shop robbed, the State becomes involved and the victim stops being part of the process. Restorative justice enables people to have a greater sense of being involved."
Marie attended her first restorative justice conference late last year as part of the court-referred pilot.
"I'm not sure what I was expecting. Part of the reason I went was because I'd never been and I wanted to see what happened."
Most of Marie's work is with offenders doing home detention, but in this instance she was writing a pre-sentence report for the Court.
She had previously met an offender who had been involved in restorative justice.
The conference she attended was for a violent offence, in which someone had been injured.
"It was very emotional. But I think restorative justice conferences tend to be emotional. Offenders are certainly anxious about going to them."
The victims were forgiving and the offender was tearful.
A lot of people want to believe that offenders have a good side, says Marie.
"The conference enables them to think about the offender in a wider context than just the crime.
"A conference is personal between the victim and the offender. I'm outside that relationship and have a different role."
"The victims didn't want the offender to go to jail, but when I'm doing a pre-sentence report I have to be objective about whether he has the motivation to change, about the barriers he faces to attending programmes and about his willingness to comply with a community-based sentence.
"Even though I was moved by the conference, when I stepped back and assessed the offender in my role as a probation officer, I came to a different conclusion from the conference."
What is a Probation Service Pre-Sentence Report?
When an offender pleads guilty to (or is convicted of) an offence that carries a possible sentence of imprisonment, the Judge may ask a probation officer to prepare a pre-sentence report.
The pre-sentence report provides background on what led to the offending, including a summary of the person's social and health circumstances if appropriate. It includes the probation officer's assessment of how willing the offender is to change his or her behaviour, and recommends a sentence and, where appropriate, sentence conditions.
In order to prepare a pre-sentence report the probation officer will interview the offender, make enquiries with the offender's family and friends, and gather information from Police and Department of Corrections records. For very serious offending the probation officer will do an in-depth assessment which will examine what led to the offending.
In the pilot courts, the restorative justice conference report is given to the probation officer before sentencing, so that the outcomes of the restorative justice conference can also be taken into account in the sentencing recommendations.
The pre-sentence report goes to the Court, the offender and the offender's lawyer (if represented).
Once the offender has been sentenced, the information in the pre-sentence report is used by either the Community Probation Service or the Public Prisons Service to manage the offender, depending on whether the offender has received a communitybased sentence or a prison sentence. This may include further assessment of the offender to establish the best way to deal with his or her rehabilitative needs.
What is a Reparation Report?
A sentence of reparation may be imposed if an offender has caused a person to suffer
In most cases the Judge will order a reparation report to be prepared by the offender's probation officer prior to sentencing. The Court may direct a probation officer to prepare a reparation report as well as referring the case for restorative justice.
A reparation report covers the nature and extent of the loss or damage suffered by the victims, and the financial capacity and circumstances of the offender. The probation officer will usually discuss reparation with the victim and the offender in order to prepare a reparation report.
The Judge may order reparation to be paid where a reparation report hasn't been prepared, provided that he or she is satisfied that the information is available through another source such as a restorative justice conference report.
Reparation payments are made by the offender to the Court. The Department for Courts then makes the payment to the victim. The full amount of any payment made as reparation is passed on to the victim.
Judges See Potential ‘Across the Board'
Judges in the Auckland and Waitakere District Courts are referring a wide variety of cases and offenders through the court-referred restorative justice process.
"Judges are seeing the potential across the board," says Auckland restorative justice co-ordinator Islay Brown. Islay is also getting referrals from Justices of the Peace where offenders have pleaded guilty at depositions.
Co-ordinator Cathy Brown is seeing a large number of first offenders and young people through the restorative justice process in Dunedin, and would like to see more cases referred where the offenders have a number of past convictions.
"I think the case of Jackie Katounas, who had 138 convictions but went straight after meeting a victim for the first time, shows the value of this process even to people who have been in and out of the system a lot.
"And we need to keep remembering that from the victim's point of view, prior offending may not be relevant.
"One of the encouraging things in Dunedin is that we are having a number of police officers attend conferences, and receiving positive comments about the process from them."
About 35 percent of referrals are going through to conferences.
Cathy says that in many cases the victim doesn't want to go ahead.
"Once the process becomes better known, more people will realise the benefits it has for the victims."
Timing is important for victims, says Cathy.
"Sometimes if the process begins too soon after a crime, they are not ready. If it happens after a long period, it can be too late and they don't want to revisit the crime."
Waitakere co-ordinator Garry Summers says that a greater number of conferences are going ahead than in the early stages of the pilot, as facilitators become more adept at communicating the advantages to those involved.
Scene from the court-referred restorative justice training video
In the four pilot regions there have been close to 500 referrals and more than 170 conferences held.
Exciting Time
New Courts Minister Margaret Wilson is enthusiastic about the courtreferred restorative justice pilot, and intends keeping a close eye on progress in the four pilot courts.
"This is an exciting time to be involved in making changes for the better administration of justice."
The Minister says that she is looking forward to finding out more about restorative justice throughout the country and is particularly interested in the results of the evaluation of the court-referred pilot.
"It seems that restorative justice is already showing positive impacts for victims of crime and offenders."
Te Ara Whakatika is produced by the Department for Courts to ensure the wide community of people who support the restorative justice movement are kept informed about the court-referred restorative justice project. The items in this newsletter do not necessarily reflect the views of the Department for Courts or official policies. Articles in this newsletter may be copied and reproduced, but Te Ara Whakatika must be acknowledged. Te Ara Whakatika can be viewed online at www.courts.govt.nz/publications/news.html. Inquiries regarding the court-referred restorative justice project should be directed to: Alison Hill, Department for Courts, PO Box 2750, Wellington, Phone (04) 918 8839, Fax (04) 918 8820, email: alison.hill@courts.govt.nz; or to co-ordinators Islay Brown (Auckland) Phone 025 745 141, (09) 916 9000; Garry Summers (Waitakere) Phone 025 271 5148, (09) 916 5268; Jim Berkett (Hamilton) Phone 025 271 5203, (07) 957 7700; Cathy Brown (Dunedin) Phone 025 271 5164, (03) 471 5170. Te Ara Whakatika mailing list inquiries should be directed to: Abpost, PO Box 38756, Petone, Wellington Fax (04) 568 3400.
