Some restorative elements (or opportunities for them) can be identified in the current criminal justice process and in existing sentences. Collectively, they provide considerable opportunity for a restorative approach. On the other hand, it may be argued that the full benefit of individual restorative elements cannot be realised if they are encapsulated within a non-restorative process.
Restorative justice programmes in overseas jurisdictions are varied. However, common features include victim-offender meetings and the idea of reparation, either to individual victims or to the community. Until recently in New Zealand, the victim's part in the court process was little more than that of a witness. It was through the advocacy of victims themselves that their vital interest in criminal proceedings has come to be more fully recognised in legislation and practice (Graham, 1993).
The Victims of Offences Act 1987 established a set of principles relating to victims of crime. These principles cover the way that victims should be treated; the assistance, information and protection that should be provided to them; and the involvement of victims in the criminal justice system. Through these principles, victims have become more integrated into the court process. In particular, the victim is to be fully informed about the court process, and the victim's views are to be taken into account in some cases when bail for the offender is being considered.
The harm done to victims is communicated to the court using victim impact statements. There is some debate as to how effective increased victim involvement in the criminal justice system has been in meeting the needs of victims of offences, or whether changes which have increased their involvement can be considered restorative.
The New Zealand youth justice system applies to children and young people under 17 years of age. It has a variety of goals, a number of which accord with a restorative approach. These include: an emphasis on young offenders paying for their wrongdoing in an appropriate way; the involvement of families and offenders in decision-making arising from the offending; the participation of victims in finding solutions; and consensus decision-making (Children, Young Persons and Their Families Act 1989).
There is both an informal and formal system, with the family group conference having a central role in both systems. In the informal process, once the police have established an intention to charge, they are able to direct a youth justice co-ordinator to convene a family group conference without reference to the court.
If this family group conference achieves agreement about what should be done and the young offender completes the plan, then the matter will not proceed to court. Where agreement is not reached, or when the members of the family group conference agree that the young offender should appear in court, the police are able to refer the case to the court.
If a young offender is arrested, the formal youth justice process operates.
The young offender will appear in court without entering a plea. If the charge is not denied, the judge will direct a youth justice co-ordinator to convene a family group conference. If the charge is denied, then the case will proceed to a defended court hearing. If the charge is proved, the court must order a family group conference and consider the outcome prior to imposing an order on the young offender (section 279, Children, Young Persons and Their Families Act 1989).
A family group conference involves the victim (or their representative), the offender and members of the offender's family. It is attended by the police and facilitated by a youth justice co-ordinator who is employed by the Department of Social Welfare. Others, such as a social worker and a legal advocate for the young offender, may attend the conference at the request of the co-ordinator. Maxwell and Morris (1993: 117) described it thus:
The theory underlying the bringing together of the victims, the young offenders and their families is to effect a reconciliation between the parties. The offender should accept responsibility for the wrongdoing done to the victim and should offer to make amends to the victim. In particular it is intended that attendance at the family group conference should be in part a healing experience for victims.
The legislation envisages considerable variation in practice at family group conferences with the family of the offender applying the procedures they wish.
In practice, youth justice co-ordinators have played a key role in advising families about how to proceed. They inform those entitled to attend of the conference details, discuss the process with the family and invite other interested parties, such as social workers, sports coaches or teachers.
In their review of youth justice practice, Maxwell and Morris (1993) suggested that the conferences followed a typical pattern. The process generally involves:
· Introductions;
· An explanation of the procedure by the co-ordinator;
· The presentation of the summary of facts of the offence by the police;
· An opportunity for the offender to comment on the accuracy of the police statement;
· An opportunity for the victim (or representative) to present their view if the offender admits the offence;
· A general discussion of possible outcomes;
· A discussion of options among the offender's family;
· The formulation of a plan, response or outcome by the offender's family;
· General negotiation;
· Agreement from the enforcement agency and victim;
· Recording of the agreed plan and closure of the meeting.
A family group conference may proceed even if some participants who are entitled to be there decline to attend. Victims do not have to attend. Offenders do not have to attend either, although conferences rarely proceed without their attendance.
Only two outcomes are permitted. All of those who attend the family group conference have to agree to the plan or recommendation. If there is no agreement, the matter must be referred back to the youth court.
The proceedings of family group conferences are confidential. Neither the enforcement agency (usually the police) nor the court may use information from the conference, even if there is no agreement and the matter goes on to a defended trial.
The Children, Young Persons and Their Families Act has moved significantly towards providing for the personal involvement of victims in the youth justice process. The guiding principles for youth justice contained in the legislation require that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending (section 208).
Victims (or their representatives) are also legally entitled to be present at any family group conference called to deal with alleged offending against them (section 251). As entitled members, victims are able to disagree with any plan proposed. This power is considerable since all members of family group conferences must agree in order for a plan to be presented to the court or prosecuting authority (section 264).
While the youth justice process gives a more prominent and direct involvement to victims, less than half of the family group conferences in the Maxwell and Morris sample had victims or victims' representatives attending. While this was in the first year of operation of the new procedures, three years later it was still the case that fewer than half of youth justice family group conferences involved victim attendance (Department of Social Welfare, 1993).
Maxwell and Morris also found that although 95% of the family group conference cases in their sample were recorded as having an agreed outcome, a high level of victims (40%) were recorded as dissatisfied with the outcome (Maxwell & Morris :1993). A number of possible reasons for this result were suggested, including that:
· Victims may not have realised that they could have effectively vetoed any proposal put forward by the family;
· It was relatively common that family group conferences did not ascertain whether or not the victim agreed; and
· The victim's agreement was not sought with the same emphasis as other parties.
Family group conferences can be either a positive or re-victimising experience for victims. In a 1993 survey of groups and individuals who provided services to victims of crime, about half the respondents were critical of family group conferences.
It was suggested that the venue and timing of conferences can be inconvenient for victims, that victims can be intimidated at family group conferences and that the balance favours the offender. There were also a number of complaints about the lack of consideration given to victims by youth justice co-ordinators.
Difficulties mentioned with reparation agreed through family group conferences included slow payment and the lack of follow-up (Lee & Searle, 1993).
In 1994, the Children, Young Persons and Their Families Act was amended to address criticisms raised in a number of reports. The changes emphasised requirements to involve victims and to consult with them as to the time and venue for a family group conference. Victims are now entitled to bring supporters to the family group conference, although these people are not entitled to have a say in decisions.
It has been suggested that the victim is at the heart of the youth justice process (Brown cited in Maxwell and Morris, 1993: 172). However, there is an inherent conflict between this view and the provisions of the Children, Young Persons and Their Families Act, which has as its primary focus offenders and their families and which, while providing for involvement of victims, require only that due regard be given to their interests.
The criminal justice system for adults operates in the district and high courts and applies to those aged 17 years or over, although it also deals with the most serious offending committed by those under this age. There are a number of provisions in the adult system which have a restorative focus or would allow for this focus to be introduced. These provide the opportunity for victim involvement in decision-making, individual or community reparation and in some cases victim-offender meetings.
The police pre-trial diversion scheme for adult offenders was first developed in 1988. The scheme involves offenders who would otherwise be prosecuted being diverted to a programme after their first court appearance and before the charge is formally heard. Where this diversion programme is satisfactorily completed, the charge is ultimately withdrawn or no evidence is offered. Judicial agreement is sought for the initial remand for diversion and to the later withdrawal of the charge if that is the preferred method of case disposal. Diversion is usually also accompanied by a police warning that further offending will result in action through the court system (Young & Cameron, 1992).
Guidelines were developed when the scheme was initially set up and these have since been revised and formalised into national police policy
(New Zealand Police, 1994). Selection of cases is based on the following:
· The offender should have no previous convictions, or where there are previous convictions there should be special circumstances which make diversion appropriate;
· The offence must not be serious;
· The offender must admit guilt, show remorse and be prepared to make full reparation to the victim;
· The victim must always be consulted about the proposal to divert the offender and serious consideration given to their views; and
· The police officer in charge of the case must also be consulted and account taken of their views and
· The offender must agree to diversion.
The nature of diversion differs between police districts. Common elements with a restorative focus include an apology delivered personally or by letter to the victim, full reparation to the victim, a donation to charity, community work and a course of counselling. Some police districts allow community groups to determine diversion programmes and supervise offenders' completion of them. This introduces an element of informal community justice and its focus on community responsiveness to and responsibility for offending differs from the general focus of the diversion scheme (Young & Cameron, 1992).
In 1994, there were 144,575 cases prosecuted, and 2,637 adult offenders were diverted through the police scheme (New Zealand Police, 1995).
The Criminal Justice Act 1985 included a provision allowing any offer of compensation made by or on behalf of the offender to the victim to be taken into account in sentencing (section 12). An amendment in 1993, permits the court to consider any offer by an offender for compensation in a financial sense or by means of work or service for the victim. This allows the court to recognise a variety of cultural practices for the resolution of disputes involving criminal offending.
There are no records of the number of offers made and considered by the court. However, court practitioners suggest that there has been little use of this provision. The Act does not impose an obligation on any officials or officers of the court to investigate or monitor offers to make amends. The implication is that offenders must either approach victims directly which is generally otherwise discouraged, have their counsel make the approach, or make the offer to the court without reference to the victim.
Section 14 of the Criminal Justice Act 1985 empowers the court to adjourn proceedings in any case where an offender has been found guilty or has pleaded guilty, before sentence, to allow inquiries to be made or to determine the most suitable method of dealing with the case. This provision has been used by judges of the district and high court to arrange victim-offender meetings in appropriate cases and to consider the outcome of that meeting in the sentencing process (Mansell, 1994; Tompkins J, 1995).
Probation officers may present pre-sentence reports on their own initiative, but must prepare them if requested by the court (section 15, Criminal Justice Act). These reports may include recommendations relating to the disposition of the case and the officer's opinion of how the offender would respond to any sentence. A victim-offender meeting could be initiated by a probation officer under this provision in appropriate cases, and the outcome included in the recommendations to the court on the disposition of the case.
Section 16 of the Criminal Justice Act provides for an offender to call a witness as to how matters associated with ethnic or cultural background may relate to the commission of the offence or help to avoid further offending.
This could be an opportunity for the offender or counsel to present the outcome of a restorative process to the court for it to consider in reaching any sentencing decision.
REPARATION [sections 22-25 of the Criminal Justice Act 1985] This is a relatively new sentence, having been introduced in 1985. It involves the payment of money by an offender to the victim of an offence through the court as recompense for emotional harm or loss of or damage to property. Reparation is not available in respect of physical injuries.
In theory, the process for determining reparation provides for the victim and offender to meet with a probation officer whose role includes facilitating communication between the parties and regulating the interaction. Where the amount of recompense is under $500, reparation can be ordered without specific reference to the victim. In other cases, where a reparation report is requested, a variety of factors combine to reduce the likelihood of meetings between the victim and offender.
A survey in 1992 found that face-to-face meetings occurred in only 4% of cases referred for reparation reports and the reality was that probation officers were largely acting as intermediaries with most victim contact by telephone rather than in person (Jervis, 1995).
Court orders for reparation were made in approximately 17% of all cases each year between 1991 and 1993 (Jervis, 1995). This represents a significant increase over earlier use of the sentence (6% of cases in 1987). While the proportion of cases to which reparation has been applied has been relatively stable in recent years, the amount of reparation ordered has been increasing. In the 1991/92 financial year, $10.4 million was ordered, with $4.6 million paid to victims. By 1993/94, the amount ordered had risen to $13 million, with $6.5 million paid to victims. The difference between the two amounts represents reparation that is due to be collected as a result of time payment arrangements, enforcement action and reparation not due for payment (Department of Justice, 1994).
Reparation can be imposed in combination with other sentences including imprisonment and community-based penalties. Legislative provision was strengthened in 1993 and Judges are now required to consider reparation in all cases and impose such a sentence unless "it would be clearly inappropriate to do so" (section 11). Additionally, amendments in 1993 gave priority to the payment of reparation to individual victims over the remittance of fines to the state. Where an offender has insufficient means to pay both a fine and reparation, although both would be appropriate, then reparation alone may be ordered. The satisfaction of reparation obligations is also to have priority in respect of any payments made by an offender subject to both fines and a reparation order.
FINES [section 28 of the Criminal Justice Act 1985] Where an unprovoked offence causes emotional or physical harm to a victim and the court imposes a fine, it is required to consider whether all or part of the fine should be awarded to the victim. This only applies where a fine is to be imposed and is, therefore, not a general requirement that the court consider compensating victims. There is no standard means of establishing appropriate levels of compensation and the imposition of this penalty does not directly involve the parties other than in payment and receipt through the medium of the court. In 1993/94 a total of $77.6 million in fines was imposed (Department of Justice, 1994). It is unfortunately not possible to identify how much of this was ordered to be paid to victims.
This system of restitution to victims has many of the faults attributed to the British system of compensation orders. These include insufficient information for judges, impoverished defendants and the potential for disputes over the size of loss (Marshall, 1990). In New Zealand, it is possible that provisions for criminal compensation, and later accident compensation have shifted attention away from fines as a means of restitution to victims.
COMMUNITY SERVICE [sections 29-36 of the Criminal Justice Act 1985] Where convicted offenders consent, the court may impose an order requiring that they complete between 20 and 200 hours of service for certain types of community organisations. Offenders generally undertake the service on an individual basis but may be working alongside other offenders. They are supervised by representatives of the organisation receiving the service, while the sentence is monitored and enforced by a probation officer. The imposition of this sentence is limited by the suitability of the offender and the availability of suitable work.
This sentence is in the nature of symbolic reparation to the community for the offending behaviour. It may provide direct reparation to the victim where the community organisation concerned was the victim of the offending but this is less usual. In 1993, 9,953 offenders were sentenced to undertake community service - almost 10% of total cases sentenced (Spier, 1994).
PERIODIC DETENTION [sections 37-45 of the Criminal Justice Act 1985] Periodic detainees carry out community work in small groups supervised by a Department of Justice employee. They are in day-custody and required to undertake the work which is in the nature of symbolic reparation. A total of 23,279 offenders received this sentence in 1993 - 23% of total sentenced cases (Spier, 1994).
COMMUNITY PROGRAMME [sections 53-57 of the Criminal Justice Act]
This sentence seeks to have offenders comply with programmes which address the individual causes of their offending. Where a programme involves components aimed at integrating an offender back into their community, community or family members may be involved in
decision-making about the programme presented to the court.
A total of 1,177 offenders received this sentence in 1993 - 1.2% of all sentenced cases (Spier, 1994).
PRISON WORK [sections 20-21 of the Penal Institutions Act 1954] While serving sentences of imprisonment, prison inmates are required to undertake work as directed by the superintendent. The objectives of prison work include reparation to society for the offending behaviour and an increasing number of inmate hours have been devoted to community work projects. In 1993/94, 143,740 inmate hours were spent on community work. This is the equivalent of 75 full-time workers.
Another employment option taken up by a small number of inmates nearing release provides the opportunity to recompense individual victims of offences. Section 21A of the Penal Institutions Act permits the daily release of inmates to engage in employment in the community. Earnings are paid by the employer to the Chief Executive of the Department of Corrections who is empowered to pay, among other things, any fine or reparation. A factor in work parole decisions is whether release would enable contributions to be made to reparation or other, lawfully directed or authorised, compensation.
Only 11,868 inmate hours were spent in work under this scheme in 1993/94 - the equivalent of six full-time workers. The extent to which reparation or compensation was paid through the release to work scheme is not known.
There are a number of opportunities for using restorative processes and achieving restorative outcomes within the scope of existing schemes, current legislation and sentencing options. In terms of the involvement of individual victims, the youth justice system and the procedures for the preparation of reparation reports in the adult system come closest to achieving a mandated mediation process.
However, there are qualifications regarding each. The youth justice system is primarily concerned with offenders and their families while reparation sentences seldom involve face-to-face mediations and deal only with financial issues. Nonetheless, there is nothing in the existing law which would preclude the judiciary from initiating victim-offender meetings either for their own sake or to contribute to the sentencing process and some judges have done so. None of the sentencing options satisfies all three of the principles of restorative justice noted in paragraph 2.6. Additionally, the restorative elements within the current criminal justice system are fragmented.
For example, the restitution provisions for property loss, emotional harm and physical injuries are divided between reparation and fines provisions.
This fragmentation contributes to an environment in which victim-oriented restoration is difficult to achieve and often assumes less importance in relation to other criminal justice objectives.
Whether or not it was the intent of legislators to introduce restorative elements for adult offenders, players within the current criminal justice system have authority to initiate some restorative solutions to the problem of crime. Where these have been attempted, they have been characterised by a lack of adequate resources, follow-up or evaluation. With the exception of reparation reports, they have tended to be ad hoc rather than part of formal programmes.
The experience of family group conferences highlights that, whatever the intent of legislation, it is actual practice which impacts upon victims, offenders and the community. For example, although the Children, Young Persons and Their Families Act gave victims the entitlement to attend family group conferences, this means very little if in practice they are not informed of this right nor provided with sufficient opportunity to exercise it.
Legislative restrictions do not inhibit the development of a restorative approach in the existing criminal justice system. Accordingly, practice and the views and behaviour of those who have a key interest and power may be strong influences on directional change within the system.
Jackson (1988: 180) suggested that actors in the criminal justice system "...apply judgements which reflect the concerns of the conforming public". Public opinion influences the system through its impact on legislators, enforcement and administration agencies. The following chapter deals with current research about the New Zealand public's attitude to the criminal justice system in general, and restorative justice in particular, and also considers other studies about public attitudes to reparation.