Introduction | Appendix 1 | Appendix 2
Sentencing Act 2002
Parole Act 2002
Victims' Rights Act 2002
The purposes for which a court may sentence or otherwise deal with an offender include to (sections 7(1)(a) to (d), (h)):
hold the offender accountable for harm done to the victim and the community by the offending, and/or
promote in the offender a sense of responsibility for, and an acknowledgment of, that harm, and/or
provide for the interests of the victim of the offence, and/or
provide reparation for harm done by the offending.
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 (including, without limitation, anything referred to in section 10) (section 8(j)).
Section 9: Aggravating and mitigating factors
Mitigating factors that the court must take into account in sentencing or otherwise dealing with an offender include any remorse shown by the offender, or anything as described in section 10 (section 9(2)(f)).
Section 10: Court must take into account offer, agreement, response or measure to make amends
In sentencing or otherwise dealing with an offender, the court must take into account (section 10(1)):
any offer of amends (whether financial or the performance of any work or service) made by or on behalf of the offender to the victim
any agreement between the offender and victim as to how the offender may remedy the wrong, loss or damage caused by the offender or ensure that the offending will not continue or recur
the response of the offender or the offender's family/whänau to the offending
any measures taken or proposed by the offender or the offender's family/whänau to make compensation or apologise to the victim or the victim's family/whänau, or to otherwise make good the harm that has occurred
any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.
In deciding whether and to what extent any offer, agreement, response, measure or action should be taken into account, the court must take into account whether or not it was genuine and capable of fulfilment, and whether or not it has been accepted by the victim as expiating or mitigating the wrong (section 10(2)).
If a court determines that, despite anything of the kind referred to in section 10(1), it is appropriate to impose a sentence, it must take that offer, agreement, response, measure, or action into account when determining the appropriate sentence for the offender (section 10(3)).
In any case contemplated by section 10, a court may adjourn the proceedings until compensation has been paid, the performance of any work or service has been completed, any agreement between the victim and the offender has been fulfilled or any proposed measure or remedial action has been completed (section 10(4)).
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 (sections 25(1)(b) and (c)).
Section 26: Pre-sentence reports
A pre-sentence report 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 26(2)(c)).
Section 27: Offender may request court to hear person on personal, family, whänau, community, and cultural background of offender
If an offender appears before a court for sentencing, the offender may request the court to hear from anyone called by the offender to speak on 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, whänau, community and the victim or victims of the offence (section 27(1)(c)).
Section 32: Sentence of reparation
When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure or action as described in section 10 (section 32(6)).
Section 62: Guidance to probation officer in determining placement of offender for community work
When deciding on a placement of an offender for community work, the probation officer must take into account the outcome of any restorative justice processes that have occurred in the case (section 62(e)).
Sections 110 and 111: Order to come up for sentence if called upon
The court may, instead of imposing a sentence, order the offender to appear for sentence if called on to do so within a specified period (section 110(1)). The court may also make an order for the restitution of any property or the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered loss of or damage to property, emotional harm, or consequential loss or damage (section 110(3)).
Such an offender may be called up for sentence if he or she:
fails to comply with any order referred to in section 110(3), or
fails to comply with any agreement or 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 (sections 111(1)(b) and (c)).
An application to have the offender brought before the court to be dealt with for that offence may be made by:
a member of the Police,
a Crown Prosecutor,
the Solicitor-General, or
any person designated by the Chief Executive of the Department for Courts or
the Chief Executive of the Department of Corrections.
Section 7: Guiding Principles
When making decisions about, or in any way relating to, the release of an offender, one of the principles that must guide the Parole Board's decisions is that the rights of the victim are upheld, and victims' submissions and any restorative justice outcomes are given due weight (section 7(2)(d)).
Section 35: Direction for detention on home detention
The outcome of any restorative justice processes that may have occurred is one of the factors to be considered by the Parole Board when considering an application for home detention (section 35(2)(b)(v)).
Section 36: Detention conditions
With the approval of a probation officer, an offender on home detention may leave the residence in which he or she is detained to (section 36(3)(c)):
attend a restorative justice conference or other process relating to the offender's offending, or
carry out any undertaking arising from any restorative justice process.
Section 43: Start of process
When an offender is due to be released at his or her statutory release date, or to be considered by the Board for parole or home detention, the Department of Corrections must provide the Board with any reports arising from restorative justice processes engaged in by the offender (section 43(1)(b)).
Section 9: Meetings to resolve issues relating to offence
If a suitable person is available to arrange and facilitate a meeting between a victim and an offender to resolve issues relating to the offence, a judicial officer, lawyer for an offender, member of court staff, probation officer, or prosecutor should encourage the holding of a meeting of that kind (section 9(1)).
These people should only encourage a meeting if they are satisfied that (section 9(2)):
the victim and offender agree to the holding of a meeting, and
the resources required for a meeting to be arranged, facilitated, and held, are available, and
the holding of a meeting is otherwise practicable, and is in all the circumstances appropriate.
Section 10: Enforceability of Principles
Section 9, and the principles in it guiding the treatment of victims, do not confer on any person any legal right that is enforceable, for example, in a court of law.