New Zealand Expands Official Recognition of Restorative Justice
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Sentencing Act 2002
This new legislation is in part a response to a referendum of New Zealand voters in 2000, which produced a resounding “yes” to the question:
“Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them, and imposing minimum sentences and hard labour for all serious offences?”
While this has led to increased prison construction and a consideration of harsher sentences, the Sentencing Act also takes into account the needs of the victim by referring to restorative practices and values. The act makes several provisions for judges to consider restorative processes and outcomes when sentencing an offender. For example, paragraph (i) under the Principles of Sentencing states:
“[The court] should 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 that particular case.”
Restorative values are seen in the definition for the purpose of sentencing. These include:
- Hold the offender accountable for the harm done to the victim and the community
- To promote in the offender a sense of responsibility for and acknowledgement of that harm
- To provide reparation for harm done by the offending
The legislation goes on to list mitigating factors in deciding a sentence. Elements such as remorse, an offer of restitution, an apology, or the participation in restorative processes are all to be taken into consideration. The court is also allowed to adjourn proceeding to allow for the completion of an agreement between victim and offender. This consideration of restorative justice in sentencing provides a place for victims’ voices to be heard and their needs, both emotional and financial, to be considered.
Court Ordered Pilot Project
The Sentencing Act also adds legitimacy to the four-year court-referred pilot project. Where past practice and legislation concentrated on the use of restorative practices with juvenile offenders, this pilot project opens restorative conferencing for adult offenders of more serious crimes. These include some property crimes, common assault, and driving offenses resulting in death or injury.
The court may refer cases to the pilot when the offender pleads guilty and there is clear personal harm to the victim. If the judge decides the case is appropriate for referral, the offender is asked about participating. The conferencing service staff uses this first interview to determine if the conference will be a positive experience. If the offender agrees and the staff is comfortable that the offender is a good candidate for conferencing, the victim is then approached about participating in a conference. The process is entirely voluntary.
Conference participants include the victim and offender, and their supporters. Police and probation officers are invited to attend the conference, but are not required. In organizing a conferencing, coordinators consider the cultural traditions of each of the participants and attempt to assign coordinators from a similar background as the victim and offender.
This conference provides each participant a safe place to discuss the crime, its harm, and its continuing impact. The main goal is for the parties to decide the best way to move forward. Although some conferences will result in an agreement to be completed by the offender, this is not an expected goal in a conference. Once the conference is over, the facilitator writes a report for the court detailing the events of the conference as well as any agreements that result. The report is taken into account for sentencing purposes. This aspect of the pilot programme was strengthened with the Sentencing Act of 2002.
Four district courts are the sites for the conferencing pilot: Auckland, Waitakere, Hamilton, and Dunedin. The pilot has a built in evaluation component in that will test the impact of conferencing on both victims and offenders. The process will include interviewing 180 victims and 180 offenders shortly after the conference and one year follow-up interviews. Researchers will also interview individuals who chose not to attend a conference. The evaluation will include surveys of all victims and offenders attending conferences, observation of 90 conferences, and documentation of another 90. These efforts are meant to identify:
- Types of cases dealt with
- Direct and indirect costs
- Conference processes and outcomes
- Demographic characteristics
- Short and long term impact on victims, offenders, and the criminal justice process.
Resources Used for this article:
Department for Courts. N.d. Restorative Justice: Information on Court-Referred Restorative Justice.
Lynette Parker
October 2002
Last modified 2006-07-11 08:53
