Restorative Justice changes – thus far, a dog’s breakfast

Late last year, I wrote about a new change to the criminal sentencing process, involving the mass rollout of Restorative Justice:

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.

My post was in response to a column by Mike Yardley, who appeared to have simply reprinted a anti-Restorative Justice press release from the Sensible Sentencing Trust. In my post, I criticised Yardley and the Trust for their knee-jerk antipathy towards the entire concept of pre-sentence Restorative Justice. On the other hand, I agreed with the other main thrust of his column, which was that the new Restorative Justice system was likely to be hugely time-consuming and expensive.

To date, the new system has come under heavy fire, from both lawyers and judges. In Christchurch, earlier this month, Judge Alistair Garland described the forced delays as “an appalling situation”, before going on to state that:

“Not only do we now have this mandatory referral, but there appears to have been no consultation between the legislature and the community. It was wholly predictable that Restorative Justice Services would be completely overwhelmed.”

Meanwhile, in my home court of Gisborne, Judge Tony Adeane last week said that the court, and others in New Zealand, would grind to a halt if the requirement is carried out in strict compliance.

The major issue is that very basic projections don’t appear to have been carried out. In Christchurch, Restorative Justices services are apparently funded for only ten referrals per week. With current referrals this year estimated at about 70 per week, it’s obvious that things will grind to a halt. In Gisborne, a staff member at Te Runanganui o Ngati Porou, who run the region’s Restorative Justice services, confirmed that they were funded for just one referral per week. They would need to be applying for further funding, based on the number of referrals coming through.

I’m at a loss as to why these numbers hadn’t already been estimated and provided for by the Ministry of Justice on a court-by-court basis. The MoJ should surely have access to court-by-court figures regarding the percentage of cases that involved a specific victim or victims (as opposed to victims in general, for crimes such drug dealing, or victimless crime). It is mind-blowing that resources would not have been made available up front, ready for the influx of referrals, based on easily calculated projections.

However, on a tangent, let’s look at Judge Adeane’s criticism, cited above, that the courts would grind to a half if the requirement is carried out in strict compliance. What is strict compliance?

Section 24A of the Sentencing Act states that:

(1) This section applies if—

(a) an offender appears before a District Court at any time before sentencing; and
(b) the offender has pleaded guilty to the offence; and
(c) there are 1 or more victims of the offence; and
(d) no restorative justice process has previously occurred in relation to the offending; and
(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2) The court must adjourn the proceedings to—

(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

The key issue to me is the requirement that a “suitable person” is to inquire as to whether Restorative Justice is appropriate. Just who a “suitable person” is isn’t defined. Must it be a Restorative Justice co-ordinator? Surely not, given that at Gisborne District Court those initial inquiries tend to be made by the Court’s victim advisor services.

If it doesn’t have to be a Restorative Justice co-ordinator, why then can’t the courts simply deem the police officer in charge of the case to be a suitable person? When the officer in charge takes a Victim Impact Statement, all they’d need to do is canvas with the victim whether they want to undergo Restorative Justice. If it’s made clear on the Victim Impact Statement that Restorative Justice isn’t wanted, why then adjourn the case? Sentencing should surely be able to proceed immediately.

And speaking of strict compliance, here’s another thing. The Registrar must have informed the court that an appropriate Restorative Justice process can be accessed. If there’s no funding for Court referrals, and Restorative Justice staff simply cannot cope with the workload, can the court simply rule that an appropriate process simply cannot be accessed?

That’s not to say that Restorative Justice is a Bad Thing. My previous post on the matter should make it clear that I’m a supporter of it. As the Howard League points out:

[R]esearch shows that it reduces reoffending by 12 percent, and that’s surely what matters. Less offending means less victims of crime.

Furthermore, the overwhelming majority of victims who undertake RJ benefit too: as one Ministry of Justice study shows, rates of satisfaction among victims who attend RJ are very high, with 74 percent saying that they felt better after attending a conference, 77 percent saying they were satisfied with the overall experience and 80 percent saying they would recommend restorative justice to others.

The initial failure of the new Restorative Justice system is one of logistics and bad drafting. It’s the fault of our lawmakers and their advisors. They failed to consult with the courts, the judges or the criminal bar. They seem to have failed to run basic projections, and even if those projections have been compiled, they’ve failed to provide funding based on them. All in all, they’ve completely failed to consider how the law would work in practice.

And in doing so, they’re giving Restorative Justice a bad name that is undeserved.

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