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Supreme Court of Canada.. Application of s.718.2(e) of the Criminal Code: R. v. Gladue

This is an excerpt from the Supreme Court of Canada's decision concerning the meaning and application of a section of the Criminal Code of Canada with respect to alternative sentencing, particularly for Aboriginal offenders, but not limited to such. The decision discusses the goals of sentencing and explicitly examines restorative elements in sentencing - especially accountability and acknowledgment of the harm done, and restitution and reparation for that harm - as codified in this section of the Criminal Code.

Newfoundland Supreme Court - Trial Division.. A Healing Circle in the Innu Community of Sheshashit

This is the report, attached to a sentencing decision, of a healing circle in a Native community in Canada in response to an assault case. The offender was non-Native, and the victim was Native (Innu). The report details the participants (including the offender and the victim), the principles, the process, and the outcomes of the healing circle for the participants.

Johnson, R. Police v Kapa (unreported) CRN 0090007932

This document presents the sentencing notes of Judge R. J. Johnson of the District Court of Waitakere in the matter of the Police v Caine John Kapa. The case involved offenses of aggravated burglary and aggravated assault. Subsequent to the arrest of Mr. Kapa and prior to sentencing in court, he entered a guilty plea and a restorative justice conference occurred. Participants in the conference included Mr. Kapa, the victims, a policeman, and other interested parties. In view of all the circumstances of the case, subsequent events, and the law, Judge Johnson imposed a prison sentence but suspended it.

Gittos, P. R. v Fletcher (unreported) T990070

This document presents the sentencing notes of Judge J. P. Gittos of the District Court of Auckland in the matter of the Queen v Mark Fletcher. Mr. Fletcher pled guilty to a violent offense – specifically, a charge of wounding with intent to cause grievous bodily harm. Following his arrest and arraignment, Mr. Fletcher participated in a restorative justice conference with the victim, the conference apparently being instigated by the police officer initially involved in the case. The sentencing notes present the judge’s reasoning on the facts of the case, the restorative justice conference, relevant circumstances of Mr. Fletcher’s background, and the imposition of a sentence of two years imprisonment (suspended) and reparation.

Becroft, Andrew. Restorative Justice in the Youth Court: A Square Peg in a Round Hole?

New Zealand is known as a leader in the application of restorative justice to youth offending, with over 80% of juvenile offenses being handled through police diversion. The remaining 16-20% results in formal charges in the youth court. This article provides excerpts of a paper that examines the restorative potential of the New Zealand youth court. The full paper, written by Judge Andrew Becroft, Principal Youth Court Judge, New Zealand Youth Court, is attached.

Justice Gray. R v Police. No. SCCIV-02-1261 [2002] SASC 403.

Appeal against sentence- Young Offender. The appellant and others stole a letter box and caused damage to school property after attending two parties - alcohol and drugs consumed - appellant pleaded guilty on the basis of joint enterprise and was convicted, sentenced to two months detention - suspended - ordered to perform community service - whether magistrate erred in failing to consider the utility of referring the matter to a family conference - statutory diversion and its purpose in the Young Offenders Act 1993 (SA) - the fettered police discretion to divert - the unfettered judidical discretion to divert - no consideration given by magistrate to the impact of convictions on appellant - whether error in recording convictions - the power to impose a period of detention without recording a conviction - the ambit of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) and section 17 of the Young Offenders Act - erroneous approach to proceed on the basis that no power to order a period of detention without imposing a conviction - impact of convictions - importance of rehabilitation when dealing with young offenders - the effect of a curfew on sentence - partial deprivation of liberty is a relevant factor to be considered when sentencing - principles governing the reception of fresh evidence - whether new information about the possible inability to obtain a visa overseas was evidence in the nature of fresh evidence - whether appellant's decision to undertake additional community service as a permanent volunteer with the Country Fire Service over and above his ordered community service obligations was in the nature of fresh evidence - error demonstrated - appeal allowed - appellant re-sentenced. (excerpt)

Justice Doogue. Palenapa v R.

[35] It was further submitted for the appellant that restorative justice might have occurred had the Court been invited to adjourn sentencing for that process. It was also submitted that reparation was not considered at sentencing. [36] For the appellant it was submitted that a final sentence of two years imprisonment with leave to apply for home detention is the appropriate response to the appellant’s appeal. This is in particular because of the personal and family circumstances of the appellant, the fact that her husband is in custody, her willingness to pay reparation to the victims and her willingness to undertake restorative processes in order to provide for the interests of the victim. (excerpt)

Chief Justice Spigelman and Justice Simpson and Associate Justice Smart and Justice Simpson. R v Qutami.

In Regina v. Hami Qutami, the Crown or government appealed against the sentence imposed by the District Court upon Hami Qutami for the offense of soliciting to murder. The District Court sentenced Qutami to imprisonment of four years, five months, and twenty one days, with a non-parole period of eleven months and twenty one days. The Crown appealed on grounds of the inadequacy of the sentence. This document summarizes the facts of the case; the District Court judge’s findings which led to the sentencing disposition (including the offender’s religious and cultural background, current social situation, the community setting and support, emotional state, medical state, character, and prospects for reconciliation with the prospective victim and restoration of community harmony); the Crown’s arguments for a more severe sentence; and the Court of Criminal Appeal’s ruling.

Chief Justice of Samoa. Police v Pili.

The accused’s family had also performed a ifoga (traditional formal apology) and it was accepted by the family of the deceased. The accused’s family had also presented a large pig and thirty boxes of tinned fish to the family of the deceased for the deceased’s funeral ‘lauava’. A presentation of two cattle beasts and thirty boxes of tinned fish was also made by the accused’s family to the village council of Saleapaga, the village where this incident occurred. Thus the incident that occurred has been settled between the family of the accused and the family of the deceased, and between the family of the accused and the village of Saleapaga. This is all part of what is now commonly referred to as ‘restorative justice’. (excerpt)

Chief Justice of Samoa. Police v Tafiligia.

In his plea in mitigation, the accused expressed remorsefulness for what he has done. He also expressed remorsefulness to the probation service. He is very worried and concerned about the outcome of this case. The family of the accused has also performed a traditional apology (ifoga) to the father of the victim and was accepted. This was confirmed to the Court by the father of the victim. The accused’s family has also presented one cattle beast, two large pigs, thirty boxes of tinned fish as well as breakfast and lunch for the village as penalty for the offence committed by the accused. All of this was accepted by the village. Thus this matter has been settled in accordance with Samoan custom not only between the family of the accused and the family of the victim but also between the family of the accused and the village. This is all part of what is now commonly referred to as ‘restorative justice’ even though for very many years it has been the customary way Samoans penalise offences committed within a village and settle any possible enmity or friction that may arise between the family of an accused and the family of a victim. (excerpt)

McElrea, F W M. The Crown v Junior Sami. Notes of Judge FWM McElrea on Sentencing.

These sentencing notes refer to a case of assault that went to a restorative process. The judge refers to the report from the process and its impact on each of the participants and how this influences his sentencing decisions.

Panko, Charmaine. R. v. T.D.P.: A Young Offender, His Sentencing Circle, and the YCJA.

In this paper, Charmaine Panko discusses a Canadian case – R. v. T.D.P. – where the accused was a young offender. In the sentencing process, the judge directed that a sentencing circle be used. The judge’s remarks in doing so pointed to the value in this kind of restorative justice process, namely that certain factors were brought to light about the young offender’s life and community situation that may not have been included in the disposition of the case otherwise. While this case evidences some of the benefits of sentencing circles with respect to young offenders, Panko comments that it also shows some of the challenges in this kind of disposition. Panko details all of this by looking at the principles and purposes of sentencing under the Youth Criminal Justice Act (YCJA), the use of sentencing circles, the individual participants in a sentencing circle, and sentencing circles and the YCJA.

Crime and Justice Research Centre and Triggs, Sue. New Zealand Court-Referred Restorative Justice Pilot: Evaluation.

The pilot was established in 2001 in four District Courts throughout the country. The court-referred restorative justice pilot was designed to test the effectiveness of the court-referred model of restorative justice in achieving three broad objectives: mitigation of the crime's effect on victims who participated in restorative justice conferences; increased victim satisfaction with the processing of their cases; and a reduced rate of recidivism by offenders referred to restorative justice conferences compared with offenders subjected to conventional criminal justice processes. Over the period addressed by the evaluation (February 4, 2002, through February 3, 2003), just over 500 cases were referred for restorative justice in the pilot courts, and approximately 200 restorative justice conferences were held. The evaluation team examined the data in the restorative justice database established to hold information on all referrals for restorative justice conferences. In addition, survey forms were sent to all participants and facilitators involved in the conferences, and the offenders and victims referred to conferences were interviewed immediately after the conference, after the sentence, and 12 months after the conference. Ninety conferences were observed as well. Data on reconvictions were compared for pilot participants and a matched control sample. Approximately one-third of pilot offenders had reoffended within 12 months of their conference, which was a small, albeit significant, reduction compared with the average rate of reoffending for matched comparison groups. There was strong support for continuation of the pilot programs among victims, offenders, and facilitators. Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.org.

Minnesota Supreme Court. State of Minnesota v. Signe Elissee Pearson, C9-99-2021 [2002]

This document presents the ruling of the Supreme Court of Minnesota in the appeal of a case by Signe Elissee Pearson against the State of Minnesota. A sentencing circle, in providing a sanction against an offender following a plea agreement, had recommended to a district court a stay of adjudication of a felony theft count against Signe Elissee Pearson. The district court followed this recommendation and stayed adjudication. The State of Minnesota appealed, and the court of appeals reversed the district court. In this ruling, the state Supreme Court reverses the ruling of the court of appeals, thus upholding the district court and the recommendation of the sentencing circle.

Lamer, Antonio and Binnie, William Ian Corneil and Bastarache, Michel and Iacobucci, Frank and Major, John C and Binnie, William Ian Corneil and Gonthier, Charles Doherty and Major, John C and McLachlin, Beverley and Binnie, William Ian Corneil and Iacobucci, Frank and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire and Major, John C and McLachlin, Beverley and Binnie, William Ian Corneil and Bastarache, Michel and Iacobucci, Frank and Gonthier, Charles Doherty and L'Heureux-Dubé, Claire. R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5

Criminal law -- Sentencing -- Conditional sentences -- Accused pleading guilty to dangerous driving causing death and dangerous driving causing bodily harm and receiving sentence of 18 months of incarceration -- Whether Court of Appeal erred in substituting conditional custodial sentence for jail term -- Proper interpretation and application of conditional sentencing regime -- Distinction between conditional sentence of imprisonment and suspended sentence with probation -- Meaning of "safety of the community" -- Criminal Code, R.S.C., 1985, c. C-46 , ss. 742.1, 742.3. (excerpt)

Lipton, S E. Reasons for disposition of the Honourable Judge S.E. Lipton. R. v. C.L.T., 2002 ABPC 116.

This document presents the reasons given by Judge S.E. Lipton, Provincial Court of Alberta, for his disposition of a particular case. On May 31, 2002, final arguments were given by counsel with respect to charges for which C.L.T. (the “young person"?) had earlier entered guilty pleas. Pursuant to the guilty pleas, counsel for the Crown asked the court to impose on the young person a sentence of two years secure custody followed by probation, a weapons prohibition, and a DNA order. Counsel for the young person, agreeing with the weapons prohibition and making no submission with respect to the DNA order, asked the court to impose a sentence of probation. The document covers the agreed facts of the case, background information on the young person and the victim, analysis of the case by the judge, the judge’s reasoning on the age of the offender and the sentencing provisions of the Young Offenders Act, and the judge’s disposition of the case.

Supreme court of Queensland. R v Tran; ex parte A-G

In this case, the Attorney-General of Queensland appealed against the sentence imposed upon the respondent for the offense of armed robbery with personal violence. The respondent had been sentenced to serve a 12 month intensive correction order and to pay a significant amount in compensation. Certain aspects of the adjudication of this case featured a restorative justice approach, particularly in that the complainant (victim) was consulted in the determination of the sentencing outcome. After reviewing the facts of the case and principles of restorative justice, the court denied the appeal and upheld the lower court’s sentencing order.

New Zealand Court of Appeal. The Queen v. Andrew Bruce Nodwell

The judgment of the New Zealand Court of Appeal in this case dealt with an appeal of a conviction and sentencing for theft and aggravated robbery. The appellant argued that the sentences were excessive in light of particular circumstances. Some of those circumstances included actions on the part of the offender – for example, his writing a letter of apology to the victims to express his remorse, contrition, and shame; and his participation in a community group conference (without the presence of the victims) in which he offered to make amends for the harm caused by his actions. While the Court of Appeal explicitly did not express general opposition to the concept of restorative justice, the Court upheld the original sentencing and rejected the appeal.

Restorative Justice in Sentencing: South Africa

In a recent sentencing decision in a murder case, Judge E. Bertelsmann of the High Court of South Africa wrote of the importance of restorative justice in the South Africa context. The full decision is presented here with a downloadable version attached.

McElrea, FWM. The Crown v Junior Sami

Notes of Judge FWM McElrea on Sentencing