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University of Sydney Institute of Criminology
New South Wales
Australia
Wednesday 7 May 2003
From Youth Justice to Adult Restorative
Justice
in New Zealand/Aotearoa
Helen Bowen and Jim Boyack
Introduction
Restorative Justice has been gathering momentum in New Zealand since 1989
when parliament enacted progressive legislation requiring young offenders to
attend family group conferences. This ground-breaking legislation has set in
motion a community-driven restorative justice conference movement. This in
turn prompted the government in 2002 to enshrine restorative justice
processes in legislation for adult offenders.
With legislative sanction, the
community in New Zealand is now taking up the challenge to show that it
deserves its new found voice in the criminal justice system. The government
itself is piloting restorative justice conferencing in the adult jurisdiction.
New South Wales now has legislation which provides for restorative
conferencing for serious crime in the adult jurisdiction.
Youth Justice
The Children, Young Persons and Their Families Act 1989 (CYPF Act) was an
attempt to recognise the inadequacies of the prior legislation (Children and Young
Persons Act 1974) which was “welfare” based. The new act adopted a “justice”
model with more culturally appropriate ways of dealing with youth at risk.
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One of the innovations of the CYPF Act was that it provided general principles which
guide the conference and the court. The principles are consistent with the aims of
restorative justice.
Youth justice principles include:
Keeping young people out of the criminal justice system

Keeping young people in the community

Providing special legal protection to young people during the investigation
process (e.g., enhanced right to silence)

Making young people accountable

Time frames

Due process

Strengthening and involving families

Involving victims

Consensus decision-making

Culturally appropriate resolutions and social services.
Youth re-offending rates
Important conclusions have emerged from small samples of offender studies:
FGC’s can contribute to reducing re-offending even where other adverse early
childhood experiences are taken into account;
Critical features to reducing re-offending for youth are:

having a memorable conference,

not being made to feel a bad person,

feeling involved in the conference decision-making,

agreeing with the conference outcome,

completing the tasks agreed to,

feeling sorry for what they have done,

meeting the victim and apologising and
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
feeling that they had repaired the damage.
[6]
Further research is required to identify effective interventions in combination with the
youth justice process.
Adult Restorative Justice
The Youth Justice Legislation had been in place for six years when the first official
experiments in New Zealand in adult restorative processes were undertaken. The
first adult restorative justice conferences were facilitated by volunteers who believed
that the youth justice model had application in the adult court. The first New Zealand
restorative justice group, which offered facilitation of conferences for adult offenders,
consisted of social workers, lawyers, ministers of religion, teachers and other
community-mined people. Having said this, some Maori alternative processes for
adult offenders had existed in some areas, alongside the traditional criminal justice
system, throughout.
The restorative justice group came to appreciate that the FGC only sought to hold
the young person accountable. Its focus was on the youth in the community. It gave
insufficient emphasis to victims’ needs.
Thus the group decided that adult
conferences should be victim-centred rather than paternalistic.
The group also soon realised the power of apology in the conference. It recognised
that apology was more likely in a conference where the offender attended voluntarily
than in the FGC process where it was mandated that the young person attend. Preconference assurance to the victim of an adult crime that the offender wishes to
meet and wishes to apologise was reassuring to the victim. This was so even if the
victim chose not to attend the conference.
Another advantage of voluntary attendance at the conference was discovered to be
a freely given decision by the offender to undertake tasks or provide reparation.
[6]
Family Group Conferences and Re-offending, Maxwell G, Morris A 2001
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One of the criticisms of FGCs was that there was inadequate monitoring of
conference agreements.
The adult scheme sought to rectify this by getting a
commitment during the conference from responsible people who would supervise
conference outcomes.
Another issue the group identified as a weakness in the FGC process was the failure
to locate and invite the widest family group, which in turn would be taking
responsibility for the young person’s future behaviour. Also, the legislation provided
for only one supporter to accompany the victim, an anomaly which the adult process
sought to rectify.
Since the first community group of volunteers to offer restorative justice services was
established in 1995, more than 20 other such groups have formed around New
Zealand. The proliferation of such groups has created a groundswell in favour of
such processes, which in turn has prompted the government to take its own
restorative justice initiatives.
Common Law Recognition
In 1998, the New Zealand Court of Appeal in R v Clotworthy
application of restorative justice in the sentencing process.
[7]
cemented the
This was a serious
stabbing case in which the Court of Appeal substituted a three-year prison sentence
for a two-year suspended sentence.
“[W]e would not want this judgment to be seen as expressing any
general opposition to the concept of restorative justice (essentially the
policies behind ss11 and 12 of the Criminal Justice Act 1985). Those
policies must, however, be balanced against other sentencing policies,
particularly in this case those inherent in s5, dealing with cases of
serious violence. Which aspect should predominate will depend on an
assessment of where the balance should lie in the individual case. Even
if the balance is found, as in this case, to lie in favour of s5 policies, the
[7]
(1998) 15 CRNZ 651 (CA).
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restorative aspects can have, as here, a significant impact on the length
of the term of imprisonment which the Court is directed to impose. They
find their place in the ultimate outcome in that way.”
The Court thus acknowledged the importance of restorative justice policies which
properly are to be balanced against other sentencing policies of deterrence and
public safety. Where the balance should lie will depend on the circumstances of
each case.
Mr Clotworthy and the offence victim attended a restorative justice conference prior
to sentence being passed in the Auckland District Court.
A restorative justice
conference report was among the matters considered by the District Court Judge. In
his sentencing remarks, the judge noted that the restorative justice conference report
made it “very clear that they (victim and defendant) had intimate and personal
communications which could well have achieved more by way of healing of attitudes
than anything else”.
The judge was able to see the open flow of conversation
between the victim, the offender and the victim’s support persons, and he was able
to see in this transparent report that the victim in fact did “not see any benefit in a
festering agenda of vengeance or retribution in his heart against the prisoner”. And
so the judge was able to balance this aspect favourably against the aggravating
circumstances of the case.
While the judge at first instance was able to pass a sentence which in law could then
be suspended, the Court of Appeal found that the balance tipped in favour of a term
of imprisonment. Nevertheless, New Zealand’s highest court said, “Under s12 we
must consider what, if any, weight to give to Mr Clotworthy’s offer of compensation.
We consider that substantial weight should be given to this dimension, in particular
because the victim was prepared to accept that offer as expiating the wrong.” The
judgment went further, however, and noted, “It must be said, however, that a wider
dimension must come into the sentencing exercise than simply the position between
the victim and defendant.
New Zealand Department for Courts Restorative Justice Pilot
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The government in 2000 agreed to fund a four-year national pilot to examine
restorative justice processes in the communities around four district courts. The pilot
is evaluating conferences which take place between the time a plea of guilty is
entered and sentence. A report of the conference is given to the Judge and the
outcomes agreed by the parties are taken into account at sentencing.
The
Clotworthy judgment, and the surprising generosity of victims who attend
conferences, mean that the courts tend to hand down less punitive sentences. The
rationale for this is that offenders are truly held to account and victims’ opinions are
given weight. The pilot seeks to determine victims’ satisfaction with the process. It
also aims to enable offenders to take responsibility for their actions and reduce
chances of re-offending.
The first pilot conference took place in Auckland in September 2001 after 120
community facilitators were trained by Helen Bowen and Jim Boyack in the type of
restorative justice process that had been developed over the previous six years in
New Zealand. The training largely drew from the New Zealand Restorative Justice
Practice Manual (www.restorativejustice.org.nz) written and edited by Jim and Helen.
Update on Department for Courts Restorative Justice Pilot as at April 2003.
The Sentencing Act 2002
The Sentencing Act 2002, which became law in July of last year, contains clear
restorative provisions which oblige Judges to take into account outcomes of
restorative processes prior to sentence.
This legislation is principles-based:
Restorative principles relating to sentencing purposes are:

to hold the offender accountable for harm done to the victim and the
community by the offending;
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
to promote in the offender a sense of responsibility for, and an
acknowledgment of, that harm;

to provide for the interests of the victim of the offence;

to provide reparation for harm done by the offending;
There is no definition of “restorative justice” in the legislation, nor is there a definition
of “restorative process”.
The main sections of the Sentencing Act which incorporate restorative justice are
ss7, 8, 9 and 10.
Section 7 provides for holding an offender accountable for harm done to the victim
and the community, and for promoting in the offender a sense of responsibility for,
and acknowledgement of, that harm, and provides for the interests of the victim of
the offence and for reparation for harm done by the offending.
These are all restorative justice statutory purposes of sentencing.
Section 8(j) requires the court to 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.
Section 8(i) requires the court to take into account the offender’s personal, family,
whanau, community, and cultural background in cases with a partly or wholly
rehabilitative purpose. (See also s27(1)(c).)
These two sub-sections provide for restorative justice outcomes arising from a
restorative justice process.
Section 9(2)(f) says the court must take into account as a mitigating factor any
remorse shown by the offender, or anything described in s10.
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Section 10 is the restorative justice section.
It requires the court to take into
account:-
i)
any offer, agreement, response or measure to make amends, whether
financial or by the performance of work or service, made by or on behalf of the
offender to the victim,
ii)
any agreement between the offender and the victim as to how to remedy the
wrong, loss or damage,
iii)
the response of the offender or the offender’s family, whanau or family group
to the offending,
iv)
any measure taken or proposed to be taken to make compensation to any
victim of the offending or family, whanau or family group of the victim, or to
apologise to any victim of the offending or family, whanau or family group of
the victim.
The court must take into account such offers, agreements, responses, measure or
actions in determining the appropriate sentence for the offender.
These are all
matters usually covered in a restorative justice conference report.
Section 10(4) permits the court to adjourn cases until compensation has been paid,
or work or service has been completed, or to fulfil any agreement between the victim
and the offender, or to allow any measures proposed to be completed or to allow any
remedial action taken or proposed to be taken by the offender in relation to the
circumstances of the offending to be concluded.
All of these aspects of s10, read in conjunction with s7, 8 and 9, make restorative
justice mainstream and a mandatory consideration for the court since 1 July 2002.
Referrals to restorative justice conferences will come from lawyers, victim advisers or
victim support people, the police or indeed from victims or the families of victims, as
well as from the offender, or the offender’s whanau, and the judge must take into
account such conferences and a report of their outcomes when passing sentence.
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Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing)
Act 2002 ss 3A and 21A and Crimes (Sentencing
Procedure) Amendment
(General Sentencing Principles) 2002 s21A
The Crimes (Sentencing Procedure) Act 1999 was amended last year to include
ss 3A and 21A..
The new s3A set out seven purposes of sentencing of which three are clearly
restorative.
These are:
1.
to promote the rehabilitation of the offender
2.
to make the offender accountable for his or her actions
3.
to recognise the harm done to victim of the crime and the community
Section 21A sets out general sentencing principles and aggravating and mitigating
factors. General sentencing principles require the Court to consider the degree to
which the offender has shown contrition for the offence either by taking action to
make reparation for any injury, loss or damage resulting from the offence, or in any
other manner. They also require the Court to consider the character, antecedents,
cultural background, age, means, physical and mental condition of the offender, as
well as the prospect of rehabilitation of the offender. These are all matters which
become clearer during a restorative process, as do the personal circumstances of
any victim, another relevant matter.
Over a period of time we have discovered that the conference forum discloses
information not normally available to the sentencing Judge. For example, victim
impact statements are usually prepared by police officers or victim support workers
in New Zealand. They tend to accentuate, not mitigate harm caused by an offender.
The conference therefore can assist the Court to get a more balanced picture of the
actual injury, emotional harm, loss or damage, also being relevant matters in
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aggravation or mitigation of an offence. The conference is also a forum in which
victims occasionally volunteer acceptance
of
partial responsibility for the
circumstances in which the offence occurred.
It is clear to us that the 2002 amendments to the Crimes (Sentencing Procedure) Act
1999 which clarify sentencing purposes, principles and aggravating and mitigating
factors in sentencing contain rich prospects for restorative justice practice for adult
offenders in New South Wales. While the New Zealand legislation goes further
towards the encouragement of restorative outcomes, nevertheless, the new
provisions in New South Wales contain more restorative language than the prior
sentencing legislation in New Zealand. As the Court of Appeal noted in R v
Clotworthy, reparation and offer and acceptance of amends, concepts in the prior
legislation, justified the use of a restorative process at that time. No greater
legislative authority was necessary.
The door to restorative justice in New South Wales has been opened by your new
legislation.
Helen Bowen and Jim Boyack are Trustees of the New Zealand Restorative
Justice Trust. They are both criminal barristers with restorative justice
practices. They offer training in restorative justice facilitation practice to
government agencies and community groups in New Zealand and overseas.
restore@clear.net.nz
www.restorativejustice.org.nz