newsletter of the court-referred restorative justice project - june 2002 - special issue
Inside this issue
The Sentencing and Parole Acts will give restorative justice a greater degree of legitimacy, according to one of the architects of the new legislation, Justice Deputy Secretary Warren Young.
'World First' For Restorative Justice
Sentencing and parole legislation passed last month brings restorative justice into the heart of our court system.
This is a world first. It is the first time that, in a key piece of legislation governing sentencing, judges are authorised to utilise restorative justice.
There is provision in the new legislation, which comes into effect on 1 July, for judges to look at alternatives to prison and to take into account recommendations of any restorative justice conferences and processes that have been held.
There are also a number of changes to community-based sanctions to improve their effectiveness.
The offences for which restorative justice can be considered are not confined to a narrow range of minor offences. The law recognises that restorative justice is applicable to all offending.
The new legislation strengthens the courtreferred restorative justice pilots because it puts restorative justice in the mainstream.
The intention of the pilots is not to prove whether restorative justice can be successful. They are there to gather data on how restorative justice should be carried out in the court system. They haven't been set up to fail. They have been set up to give information on how to improve our processes.
Victims will benefit from the new legislation because restorative justice keeps them at the centre of the process. The value of restorative justice processes in meeting the needs of victims, as well as holding the offender accountable, is recognised. The judge will hear the viewpoint of victims, and changes to the Parole Board will ensure that board members will be able to hear what victims want them to hear.
The presumption in favour of reparation for the victims of crime is strengthened. The extent of the loss or harm that can be taken into account has been extended, and judges will be required to give reasons when reparation is not imposed in cases where there has been loss, damage or harm incurred by a victim.
Suspended sentences of imprisonment are being abolished because they have failed to achieve their intended purposes.
They do not act as a greater deterrent than either prison or community-based sanctions. I understand that some people are fearful that with the removal of the term "suspended sentence," the intent of that option would also be taken. That is not the case.
What we wanted to remove was the unintended effect, which actually widened the imprisonment net. Where immediate custody is appropriate, that is what judges should impose. But if a judge does not think a prison sentence appropriate, now he or she has a range of alternative options.
A new national body - the New Zealand Parole Board - will take over from the old Parole Boards. It will be a professional, highly focused board, and for the first time its primary focus will be the protection and safety of the community.
For the first time in over a decade we are starting to get clarity in criminal justice legislation.
At last there will be a common thread that connects judges who sentence, prison staff who rehabilitate, and a Parole Board which decides when an offender should be released.
With this new legislation, the Government has drawn a line in the sand. Having drawn that line, we ask New Zealanders for their support for a co-ordinated approach to criminal offending. Most people in prison are not the terrible few that we see on the 6 o'clock news after a brutal attack. They are the sad many who drive while disqualified, or steal or take drugs.
Twenty-nine percent of offenders are in prison for property offences, 22 percent for traffic offences and 20 percent for other offences including drugs. That is why this new legislation also focuses on crime prevention.
We have to do everything in our power to ensure that those sad many who appear in our courts and serve time in our prisons for less serious offences are returned to their communities as safe citizens.
Matt Robson, Minister for Courts
Greater Legitimacy For Restorative Justice
The Sentencing and Parole Acts will give restorative justice a greater degree of legitimacy amongst groups who might have some reservations about the process, according to one of the architects of the legislation, Justice Deputy Secretary Warren Young.
"The new legislation makes specific provision for courts to take into account restorative justice processes and their outcomes in a wide variety of ways, which is intended to encourage courts to use them and to enable the agreements the offenders and victims reach during those processes to have an impact on the sentence that the court imposes," he told Te Ara Whakatika.
"The result of that I think will be that restorative justice processes develop further because they are being recognised and encouraged."
Mr Young does not believe that the abolition of suspended sentences will mean that "people who currently do not go to prison will now inappropriately go to prison.
"The Minister of Justice has made clear the Government's view that when offenders need immediate custody, whether by way of prison or home detention, that is what they should get. However, he has also made it clear that the Government recognises that a number of the offenders currently getting suspended sentences do not require immediate imprisonment, and should be dealt with in alternative ways."
Mr Young said that the new legislation "provides a range of alternative mechanisms to do all the things that suspended sentences currently do, without any of the unwanted side effects. These mechanisms include community-based sentences, adjournments, and orders to come up for sentence if called upon.
"It is the Government's intention that those alternative mechanisms be used."
Some of the cases currently receiving suspended sentences after a restorative justice process do so because of Appellate Court guidelines which stipulate that imprisonment is required for the type of offence involved. Mr Young expects that Appeal Courts over time will adjust their guidelines to take account of the changes made by the new Act.
Although the Sentencing Act is about a framework for dealing with offenders rather than about restorative justice, Mr Young said it was important that any sentencing legislation had adequate recognition of the informal processes that complemented it.
"Over the last three or four years there has been a growing recognition - pretty universal recognition - that restorative justice processes do have something to offer.
"They are seen as likely to satisfy victims and to hold offenders accountable in a different way than traditional processes on their own, and they do in some cases seem to have an impact on the likelihood of reoffending.
"We're going to have to wait for the outcome of the courtreferred restorative justice pilot to see whether those early indications are borne out, but I think at this stage there is fairly widespread recognition by people that these are processes to be encouraged."
Mr Young said it is important to emphasise that the legislation talks about restorative justice as a process.
"It is not about a particular outcome. So the view held by some that restorative justice provides soft outcomes is really misplaced. This is about a process for reaching an outcome which meets the needs of all the parties concerned, including the community.
"It is not about punishing offenders in a softer way or providing rehabilitation for them. It is about providing a plan that holds the offender properly accountable, meets the needs of victims and the needs of communities, and involves all of them in that process."
Mr Young said that the legislation provides various ways for restorative justice processes to be taken into account, and for the courts to have regard to the plans or agreements reached at a conference.
"Sometimes that might be more severe than what the courts are doing. Sometimes it might be - in some people's perceptions - more lenient. Sometimes it will just be different."
The boundaries around the court-referred pilots are not changed by the new Act. The pilots will still deal with the same range of offences, and offences outside that range will not be referred through the restorative justice coordinator, but lawyers dealing with those cases may be assisted to make contact with restorative justice providers willing to set up and run a restorative justice conference.
Victims Rights Bill Before Parliament
A new Victims Rights Bill is currently before Parliament. Its purpose is to broaden the rights of victims and to make recognition of victims' rights mandatory for the agencies that deliver those rights.
In addition to making the delivery of the rights expressed in the 1987 Victims of Offences Act mandatory, the Bill also proposes a raft of new rights for victims, including:
Many of the following guiding principles about the way victims should be treated are embedded in the Victim of Offences Act 1987:
References to Restorative Justice in the Sentencing Act
The following provisions in the Sentencing Act 2002 make reference to restorative justice or similar processes.
Section 8: Principles of sentencing. In sentencing or otherwise dealing with an offender the court must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (subsection 8(j)).
Section 9: Aggravating and mitigating factors. Mitigating factors that the court must take into account include any offer, agreement, or measure of a kind referred to in section 10 (subsection 9(1)(f)).
Section 10: The court must take into account any offer, agreement, response, or measure to make amends. In sentencing or otherwise dealing with an offender the court must take into account any offer of amends, any agreement between offender and victim as to how the offender may remedy the wrong, the response of the offender or the offender's family to the offending, or any measure to make compensation to the victim.
Section 25: Power of adjournment for inquiries as to suitable punishment. A court may adjourn proceedings after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with. The purposes of adjournment include to enable a restorative justice process to occur, or to enable a restorative justice agreement to be fulfilled (subsections 25(1)(b)and (c)).
Section 26(2)(c) states that the pre-sentence reports may include information regarding any offer, agreement, response, or measure of a kind referred to in section 10(1) or the outcome of any other restorative justice processes that have occurred in relation to the case.
Section 27 provides that the offender may request the court to hear a person speak on the personal, family, whanau, community, and cultural background of the offender. That person may speak on, amongst other matters, any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence (subsection 27(1)©).
Section 32: Sentence of reparation. When determining the amount of reparation to be made the court must take into account any offer, agreement, response, or measure or action as described in section 10.
Section 62: Guidance to probation officer in determining placement of offender for community work. This requires probation officers to take account of the outcome of any restorative justice processes that have occurred in the case when deciding on a placement of an offender for community work (Subsection 62(e)).
Sections 110 and 111 provide that the court may order an offender to come up for sentence if called upon. Under section 111 the offender under such an order may be called up for sentence if he or she fails to comply with any agreement or fails to take any measure or action of a kind referred to in section 10 that was brought to the attention of the court at the time the court made the order under section 110. The list of those who can make an application to the court to have an offender brought before the court for sentence after an offender has been stood down for sentence and has reoffended or not complied with a court order or an agreement reached by a restorative justice process includes any person designated by the chief executive of the Department for Courts or the chief executive of the Department of Corrections.
Section 7 also reinforces consideration of restorative justice outcomes in reaching a sentencing or other decision.
Section 7(a) to (d) provide that the purposes for which a court may sentence or otherwise deal with an offender include: to hold the offender accountable for harm done to the victim and the community; to promote in the offender a sense of responsibility, and an acknowledgment of, that harm; to provide for the interests of the victim of the offence; to provide reparation for harm done by offending.
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. 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.
