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A
court referred restorative justice pilot project has been taking place since
2001 at Auckland, Waitakere, Hamilton and Dunedin District Courts.
This is administered by the Department for Courts.
Quite
independently of the Court-referred pilot project, restorative justice
processes, as of 1 July 2002, have been provided for in the Sentencing Act 2002. The principle sections of that act to consider in respect of
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.
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.
6 September 2002