newsletter of the court-referred restorative justice project - january/february 2003 - issue #14
Inside this issue
Many Asian victims are baffled by the law in New Zealand and paralysed by fear, says Ingrid Kam - a Chinese Singaporean who facilitates restorative justice conferences in Auckland.
Justice in Communities
A New Zealander living and working in Colombia was part of a team which spearheaded a world-first in community justice innovations.
Annette Pearson began advocating setting up community justice houses in 1994. Two justice houses were initially piloted in major Colombian cities. Today 32 of these houses make up the country's national justice house programme, and continual activities are carried out to strengthen and improve their ground-breaking work. "We are doing a lot of things that end up being restorative justice without calling it that."
Annette, who is a lawyer, criminologist, victimologist and law and development expert, has worked in South and Central America for more than 20 years. She was brought up in Ohakune, studied law at Victoria University and then worked for the Ministry of Justice before heading overseas.
Sixty percent of Colombia's 44 million people live below the international poverty line and are isolated from traditional justice services by their geographical location, lack of education or sense of abandonment by the state. "It may take them two buses and one and a half hours to get to the nearest court room," says Annette.
"Traditional justice services are centralised and complex. If you don't have access to the formal justice system, you use informal ways of dealing with conflicts. Informal conflict resolution alternatives in Colombia tend to be violent."
The justice houses were constructed to strengthen peaceful co-existence in communities where basic justice services were scarce. The houses include interagency-type facilities such as prosecution agencies for minor crimes, a human rights/citizens' rights lawyer and services for child welfare, domestic violence, neighbourhood conflicts, as well as wide-ranging conciliation and mediation services. Each justice house has basic services, but can have additional programmes that vary depending on the particular neighbourhood's needs.
Annette worked as the first national director of this innovative programme from 1995 to 1996. These days her role is more as a consultant, co-ordinating the international financial assistance and co-operation for the programme.
The initiative's basic objectives are to:
Community involvement in the justice houses has been much greater than in the formal justice system, but there is still a "long way to go to get widespread joint state and community involvement to work collectively towards peaceful co-existence goals. " Other difficulties have included getting state agencies to work together in one place, and changing staff attitudes. " Having very limited state funding and reliance on international aid has not helped."
The houses have, however, made it easier for women to access the justice system. More than 60 percent of users are women with family violence, neighbourhood dispute and minor crime issues. "Of all the people who go to a justice house and who ask for help, 95 percent are helped with the initial circumstance. There is much to be said for trying to get basic justice services out into the community."
Some Burglary Victims 'Paralysed by Fear'
Many Asian victims are baffled by the law in New Zealand and paralysed by fear, says Ingrid Kam - a Chinese Singaporean who facilitates restorative justice conferences in Auckland.
"Where they come from, the court takes over. The idea of restorative justice is quite alien and it is hard to get across.
"Fear of backlash from the offender is the overriding issue,"
says Ingrid, who is with the Waitakere Restorative Justice Community Group, and who acts as a facilitator for the court-referred restorative justice pilot.
Language difficulties and cultural differences create further barriers.
"A lot of Asian victims are victims of burglaries and robberies. They feel they have been violated and they find it difficult to understand when the police tell them burglary is low priority."
Many will refuse to take part in restorative justice, she says, because they believe the courts should be taking care of it. Yet in cases that do go to conferences, she has witnessed some amazing transformations in victims.
They may have a perception that the offender was a monster lurking around waiting to strike again. "After the offence they get really frightened and are unable to live life normally. Then they meet the offender and find that they are like any other person."
Ingrid has had a case where cultural misconceptions were resolved by going to conference. "If the two parties had gone to court they wouldn't have talked."
It is a matter of helping them "get over the hurdle and realise that with restorative justice they can have a say," says Ingrid, who is an Asian relationship consultant in Auckland.
She is also careful at conferences to read the body language of Asian victims, as they may only say what they feel is acceptable. Often she can get to the bottom of their real feelings by speaking in Mandarin or Cantonese. "They fear running foul of the law and don't want to say something wrong.
"Quite often an Asian victim feels as if they contributed to the offence or crime. I had one boy who was bashed and robbed and who carried the burden of thinking he might have done something to attract that."
The New Role of Restorative Justice
Seminars being held throughout the country to update lawyers on the new legislatively enshrined role of restorative justice have been well received.
"We were trying to bring home to people that there are a number of new dimensions to sentencing in the Sentencing, Parole and Victims' Rights Acts of 2002," says seminar presenter Judge Fred McElrea. The Victims' Rights Act, for example, now expressly encourages the victimoffender meetings which lie at the heart of restorative justice.
The seminars, run in Auckland, Hamilton, Wellington, Christchurch and Dunedin by the New Zealand Law Society, featured Judge McElrea and Christchurch barrister Jonathon Eaton, who spoke about home detention, minimum nonparole periods, the Victims' Rights Act and special conditions of release or parole. Attendees included lawyers and representatives from the Police, defence forces and other government departments.
Judge McElrea stressed that the Sentencing Act provides three new purposes of sentencing which closely reflect the underlying principles of restorative justice - to hold the offender accountable for harm done to the victim and the community, to promote a sense of responsibility for that harm, and to promote the interests of the victim.
"Parliament has now built these into the law."
He says there is a "compulsory stop sign" in section 11 of the Sentencing Act. In every case where a person is found guilty or pleads guilty, the court must consider whether it is more appropriate to deal with them in other ways than a formal sentence - such as through a discharge with or without conviction, by ordering the offender to come up for sentence if called on within 12 months. Another alternative is deferring sentencing to allow a restorative justice plan to be carried out - at which stage the information (charge) may be withdrawn.
"These are all ways restorative justice outcomes can be implemented without formal sentences being imposed, but with the court remaining in control."
Judge McElrea says that lawyers now have an obligation to raise restorative justice with defendants before a decision is made on plea. They must also encourage victimoffender meetings in appropriate cases. Defendants who plead not guilty to see if they can get off on a technicality, as has been common in the past, may be worse off if they fail than if by not being eligible for restorative justice processes. The seminars also discussed the lawyer's role in restorative justice conferences: "They are not there as advocates but as advisors and supporters of their client," says Judge McElrea.
Restorative justice can now even be relevant when offenders are sentenced to prison. The Parole Board must have regard to any restorative justice outcomes when setting conditions of parole or home detention.
Judge McElrea was particularly keen to emphasise the significance of victim vindication, and quoted an English professor (Dr Nigel Biggar): "Justice is not primarily about the punishment of the perpetrator, but rather about the vindication of the victim."
Copies of the seminar booklet are available for $40 from the New Zealand Law Society, P O Box 5041, Wellington, Phone (04) 472 7837, email: carol.ferguson@lawyers.co.nz
Thinking on Your Feet Important Skill
Facilitating a restorative justice conference requires "a lot of thinking on your feet.
"You need to recognise that no two conferences are ever going to be the same," says court-referred restorative justice facilitator Felicity Bond (pictured). "So there isn't a simple formula that you can learn and apply. But having faith in the process is important." Felicity, who works under the umbrella of Presbyterian Support Services in Dunedin, says that preparation is the most critical component of a successful conference.
"You need to know as much as you can about the circumstances and those involved, so there are no surprises from left field at the conference. I can't over-emphasise the importance of the pre-conference meetings."
'Left field' surprises Felicity has experienced have included child victims who weren't going to be at a conference turning up at short notice. "We had to have a rapid rethink whether the conference could go ahead." After ensuring the other participants still wanted to be involved and preparing them for the changed circumstance, suitable arrangements for the children's involvement were hastily made and the conference proceeded.
Another surprise occurred when a victim turned up at a conference with a much more aggressive and angry attitude than she had displayed pre-conference. "We had to frequently remind her of the ground rules and give extra encouragement for other participants to speak.
"There are always going to be some surprises, but it is important to try to limit them."
One challenge in a conference is to ensure a victim focus is maintained when an offender has a sad story to tell. "You need to be careful the floor doesn't slip too far away from the victim. It is important that the offender has an opportunity to explain. But it is also important to remind participants that harm has been done to the victim, and we need to keep the focus on how the harm can be repaired."
Most restorative justice facilitators feel quite passionate about the process, but Felicity says it is important they don't get tempted into doing a hard sell at the first meeting. "You have to remind yourself you are there to present the information as clearly and concisely as you can. You want people free to make up their own minds with good information. You need to be really clear about the principles of restorative justice and what it hopes to achieve, and be able to explain its advantages as an addition to the normal criminal justice process."
Felicity says that an important part of the restorative justice process centres around follow-through to ensure the offender carries out the outcomes decided at the conference. Sometimes participants will be part of monitoring some of the agreement and sometimes it becomes part of the sentence, which is the responsibility of the Probation Service.
"At best, restorative justice is an amazingly powerful process that restores relations between the offender, the victim and the community. It is a safe process which gives more choice to victims and carries safeguards to ensure there is no further possibility of harm."
Television Screening
A Television New Zealand documentary on restorative justice is scheduled to be screened on TV1 at... pm on Sunday March 16.
Rehabilitative Work
The Department of Corrections spent $38 million last financial year on rehabilitation and reintegrative initiatives for offenders on both custodial and community-based sentences.
The type of programme or initiative offered depends on the department's assessment of the offender and the type of sentence they have received.
"It is not practicable though for every offender to receive rehabilitative programmes, particularly those who have stated unwillingness to change their offending behaviour," says Department of Corrections director of psychological service David Riley.
"It is considered more effective use of resources to target intensive programmes towards those offenders who have expressed a willingness to change."
David says that comprehensive evaluations have shown that it is critical to target the right programmes at the right offenders. "The best results are when the right person receives the right intervention, in the right situation at the right time and gets good support from community, friends and family to maintain their new behaviours once their sentence has ended and they have to look after themselves.
"You can teach people skills that will help them to stop behaving violently, then you need to get them to choose to use those skills. Raising victim issues can make a big difference in this process."
Straight Thinking is an intensive prison-based programme designed to help offenders look at the beliefs, attitudes and behaviours that led to their offending, and to recognise the consequences of their actions.
Straight Thinking arose from research by the Department of Corrections and is a thinking and reasoning skills programme developed specifically for New Zealand offenders.
It assists offenders to help themselves and avoid reoffending by teaching self-control, thinking skills, social skills, victim awareness, problem-solving skills, creative thinking, critical reasoning and social perspectives.
The programme is being evaluated to assess its effectiveness, with the findings likely to be available in late 2005. EQUIP is a cognitive skills programme for young inmates, and is similar to Straight Thinking.
All inmates under 18 years, and those under 20 who are deemed vulnerable, are held in units separate from adult offenders. They take part in the EQUIP programme, which is an intensive, youth-specific intervention designed to address the needs of young offenders.
It involves creating an environment where inmates behave appropriately and learn to co-operate with others.
"It is very solution-focused," says David. "A lot of time is spent on problem-solving and dealing with issues."
The department has a number of other programmes and initiatives to motivate, rehabilitate and reintegrate offenders. These include programmes that address issues such as anger management and alcohol and drug addiction, as well as tikanga Maori courses and programmes designed to improve employment opportunities for inmates once released.
David says the department's programmes are having a "modest positive impact consistent with what is happening overseas. We're reasonably confident that our work with child sex offenders is halving the rate of reconvictions. But evaluating programmes properly is expensive and resource-heavy, and we have only just started doing so on a large scale."
National Conference Planned
A national restorative justice conference is to be held in the Hawkes Bay from March 21 to 23. Information and registration forms were enclosed in the latest Restore publication. They are also available on the web at www.citwatch.org.nz or from Kay Whelan, Phone (06) 877 6537, email: m.k.whelan@xtra.co.nz
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; Marianne Lammers (Hamilton) Phone (07) 957 7816, (025) 271 5203; 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.
