Mike Yardley & the Sensible Sentencing Trust attack restorative justice

There’s a new tweak to the criminal justice system. Essentially, in every criminal case in the District Court where a guilty plea is entered and there is a victim or victims, the case must be adjourned for an investigation into whether a restorative justice meeting should occur. That’s a meeting between the offender and victim, presided over by a restorative justice coordinator, with the results of the meeting able to be taken into account at sentencing.

Last week, when I had no time to blog, Mike Yardley wrote a column in The Press entitled ‘Restorative justice of little benefit to victims‘. Mr Yardley describes himself as “predominantly focussed on travel media”, but he evidently also does a good line in rehashing press releases from the Sensible Sentencing Trust.

The main thrusts of his column are twofold, one of which I agree with, one of which I don’t. The first is that the new system is going to be hugely expensive and time-consuming. That’s true. In a significant proportion of cases, there’ll be an added one or two court appearances before a Judge. A basic common assault guilty plea (involving an offender with not enough criminal history to raise a Judge’s eyebrows) would ordinarily intimate the guilty plea at a Registrar’s List, before confirming the plea before a Judge. The Judge would then usually hand down a sentence on the day, generally ranging from a good behaviour bond to supervision to community work. An additional step now needs to be added, whereby restorative justice is investigated, and a second additional step may then be required if the victim wants to go ahead with restorative justice.

That’s a time cost, but it’s also a financial cost. Apparently, it costs around $10,000 per day to run a single courtroom. Plus, with legal aid files, lawyers can apply for an additional $120 flat fee for the additional appearances plus actual hearing time at $48 per half hour.

Nonetheless, if restorative justice works – reducing recidivism, and helping victims – then the additional cost may well be worth it. The second thrust of Mr Yardley’s column is of course that it doesn’t work. He writes:

The Sensible Sentencing Trust is pillorying the new regime, arguing that restorative justice should only apply in situations where it’s possible for the victim to have restored to them whatever they may have lost as a result of an offence. For example, the theft of a bike or damage to their letterbox.

But serious violence, really?

Yes, really.

I remember a case involving a young man who pleaded guilty to kicking another man in the head at a party, while the victim was already unconscious. A restorative justice meeting was held, and my client and his parents were able to meet with the victim, his parents and his girlfriend. From the transcript of the meeting, it was obvious that hearing a heartfelt apology from my client meant an awful lot to the victim and his family. And the victim was moved to tears when he was presented with a cheque for the several thousand dollars that my client had managed to save up, to help make up for the victim’s lost wages and other expenses.

It was a case involving serious violence, and restorative justice worked for both the victim and the offender. I would be extremely surprised to hear that my client has ever reappeared before the courts.

Nonetheless, the SST’s and Mr Yardley’s main issue is that a good restorative justice meeting might result in lighter sentences for offenders:

Sensible Sentencing’s biggest beef is that these restorative justice conferences are actually offender-driven. They will be taken into consideration as part of sentencing, potentially resulting in brownie-points and lighter penalties.

My response is, “So what?” Our Sentencing Act already required the court to take into account the views of victims. The outcome of a restorative justice conference is essentially an extension of a Victim Advisor’s report. The SST and Mr Yardley are essentially arguing that victim’s voices should be heard, but only if the victims are denouncing those who offended against them. It’s a somewhat hypocritical stance.

When it comes down to it, the SST simply opposes pre-sentence restorative justice conferences full stop. Such conferences might assist an offender at sentence; they must, therefore, be A Bad Thing.

Mr Yardley fancies the New South Wales model, where restorative justice can only take place post-sentence. But where’s the incentive for an offender to engage in the process post-sentence? They could be forced, which seems implicitly acknowledged by Mr Yardley when he notes that in NSW restorative justice conferences “often [occur] in conjunction with rehabilitation programmes at the end of a sentence”. However, that seems like a recipe for over-burdening an already over-stretched probation service.

At the end of the day, the stats I’ve seen confirm that restorative justice helps reduce recidivism. Young burglars who sit down across a table from the people they stole from are less likely to burgle again. Those who commit drunken assaults in town are less likely to engage in that behaviour in future if they see with their own eyes the effect of their offending on a victim. Victims become real people, not just names on a Summary of Facts.

To my mind, the old system of voluntary opt-in restorative justice worked well, and ways of opening up the system further should certainly be looked. Whether the benefits of the new “opt-out” regime outweigh the costs remains to be seen. However, the knee-jerk antipathy shown by the SST and Mr Yardley to the very concept of pre-sentence restorative justice seems rather foolish.

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