This paper is an attempt to answer the call for information about the development of Restorative Justice in the Courts of New Zealand since it has been practised, albeit in a beginning way over the past 10 years.  In particular it is of interest to look at the some court decisions since its language has been imported by Parliament into statutes, particularly the Sentencing Act 2002. 

Readers of this paper would be assisted if they read the author’s earlier paper entitled “ The Arrival of Restorative Justice in the Courts: a brief outline of the New Zealand experience” presented at the Symposium sponsored by the Institute of Crime Prevention and Control at Nanjing University, 16-17 December 2003.  That paper provides a background to the New Zealand community and culture out of which restorative justice grew.

The scope of this paper is intentionally limited to a survey of only some cases, and mainly where the outcome has been imprisonment, and is not intended to encompass other developments in the restorative justice movement in New Zealand.

Cases referred to are taken from the District Court, the High Court, and the Court of Appeal, and are not offered by the author as an authoritative or complete survey of all cases of relevance.  Unfortunately there is no capture system that enables that and so the presentation is an appraisal only by reference to cases that are known to the author and in loose chronological order.  Only some of the decisions cited are officially reported.

The “bullet points” appearing after the case details are the author’s suggestions of significant developments that the case demonstrates and of factors that seem to have played a part in the exercise of the discretion of the judge.

There will be many District Court decisions (being the Court of first instance) that are not included. High Court decisions (mainly appeals) are less in number and likely to be known, and for the Court of Appeal (solely appeals), there is at this stage only the one guiding decision of R v Clotworthy (1998) 15 CRNZ 651 (CA).  That decision will be referred to first because in a formative way it addressed issues of the relevance, value and applicability of restorative justice that soon become conundrums raising debate and discussion. 

For example, there can be uneasy tension between the retributive theory of sentencing which would exemplify punishment as a main purpose, and the restorative theory which would exemplify repair and restoration as a main purpose.  The former has a compelling logic that the punishment should fit the crime, that is, a terrible crime should be dealt with by a terrible punishment, and any approach that changes that emphasis could be regarded as flawed or wrong.  Also flowing from that is a view that if restorative justice has a place, it will be only for minor offending and not for serious criminal acts (not a view held by proponents of restorative justice), because lenience can be more readily accepted where there has been less harm.


Stan Thorburn
February 2006