Introduction | Appendix 1 | Appendix 2

RESTORATIVE JUSTICE PROVISIONS IN THE SENTENCING ACT 2002, PAROLE ACT 2002 AND VICTIMS' RIGHTS ACT 2002

Introduction

Courts in the criminal justice system have considered restorative justice outcomes on an ad hoc basis since the mid-1990s. For example, proceedings have been adjourned to enable a restorative justice process to take place, and informations have been withdrawn after the completion of restorative justice plans. However, with the passage of the Sentencing Act 2002, Parole Act 2002 and Victims' Rights Act 2002 restorative justice processes have been given explicit statutory recognition in the formal criminal justice system. The passage of these Acts is a significant development for the use of restorative justice processes in New Zealand.

In summary, the Ministry considers that the restorative justice provisions in the new legislation:

• give greater recognition and legitimacy to restorative justice processes,
• encourage the use of restorative justice processes wherever appropriate, and
• allow (and require) restorative justice processes to be taken into account in the sentencing and parole of offenders, where these processes have occurred.

However, the provisions do not:

• require restorative justice processes to be undertaken in every case (in particular, no obligation is imposed on Judges to adjourn cases for restorative justice processes to occur),
• require offenders or victims to take part in restorative justice processes,
• impose obligations on justice sector agencies to facilitate, arrange, hold, or resource restorative justice processes,
• require sentencing Judges to give priority to restorative justice outcomes over any other factors relevant to sentencing (for example, sentencing precedent, pre-sentence reports and victim impact statements),
• require sentencing Judges to accept or confirm restorative justice outcomes in every case where restorative justice processes have been used, or
• require the Parole Board to give priority to restorative justice processes and outcomes over any other factors relevant to parole (the safety of the community will always be the paramount consideration when considering the parole of an offender).

Restorative Justice Provisions

Sentencing Act 2002

Section 7: Purposes of sentencing or otherwise dealing with offenders

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/whānau to the offending
• any measures taken or proposed by the offender or the offender's family/whānau to make compensation or apologise to the victim or the victim's family/whānau, 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, whānau, 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, whānau, 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.

Parole Act 2002

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)).

Victims' Rights Act 2002

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.