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A Survey of 10 Years of New Zealand Court Cases on Restorative Justice

This paper by Judge Stan Thorburn offers a brief account of the development of restorative justice in the Courts of New Zealand since it has been practised over the past 10 years. In particular, it examines a selection of court decisions and identifies significant principles emerging from them. Finally, it compares those to legislation, in particular the Sentencing Act 2002.

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.

Briggs, Daniel and Auty, Kate. Koori Court Victoria – Magistrates Court (Koori Court) Act 2002.

The introduction of Koori Courts in Victoria pursuant to the Magistrates Court (Koori Court) Act 2002 has not been without its detractors and like all change, is attended by controversies. Steps which attempt to ‘move the law along’ (as if she were an old bag lady), are often seen as a threat to the legitimacy of the legal system. Before we even commenced sitting at Shepparton by the Bayunga or Koriella river, known to non-Aboriginal people as the Goulburn, our regional Koori court was the subject of criticism with members of the legal profession commenting that Aboriginal people would not be able to find their way to the court, or that they would ‘go walkabout’ on the day of the hearing (Herald Sun 6/5/2002). This early criticism was met by much positive commentary (The Age October 2002). Nevertheless criticism continued, when a senior member of the Victorian bar, citing the establishing Act incorrectly, suggested that the Koori Court ‘tipped the scales’ and provided ‘luxury’ or ‘special’ courts and some ill-defined special regime of sentencing options (Galbally, Herald Sun 13/3/2003). He also contrasted the banning of Father Christmas from child-minding centres with the Koori Court initiative. The Victorian Attorney General, Rob Hulls criticised the ‘impaired logic’ which underpinned this commentary (Herald Sun 14/3/2003). It is timely to put the controversy and distractions to one side and start seriously considering what we do in the Koori Court in Victoria. (excerpt)

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)

Considering Restorative Interventions in Sentencing

New Zealand's Sentencing Act of 2002 incorporated restorative justice language in its sentencing provisions. Judges are now required to consider the results of a restorative process in sentencing decisions. Judge Stan A. Thorburn of the District Court in Auckland applies these provisions to a case of aggravated robbery.

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)

Lunabek, Vincent. Public Prosecutor v Sablan.

2. The victim girl was seriously affected. It was very painful for her to give evidence against her father doing the trial. Since there is no specific confinement scheme in Vanuatu, I consider it is essential to protect the defendant, the victim daughter, the family and the community, to adjourn the matter to consider and explore a restorative justice process based on custom, village and traditional “welfare or social support” under Section 20(3) of the Penal Code Act [CAP 135] and Section 119 of the Criminal Procedure Code Act [CAP. 136]. (excerpt)

Thorburn, Stan. The Arrival of Restorative Justice in the Courts: A Brief Outline of the New Zealand Experience

The paper is intended to provide a narrative about the emergence of Restorative Justice into the processes of the Courts in New Zealand.