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Basire, Katherine --- "Taking restorative justice seriously" [2007] CanterLawRw 2; (2007) 13 Canterbury Law Review 31


TAKING RESTORATIVE JUSTICE SERIOUSLY

Katherine Basire

I. Introduction

In August 2006 the New Zealand Law Commission made two recommendations to the Government.[1] The first was that a Sentencing Council be established to draft sentencing guidelines. The second was that the rules relating to parole be reformed so that at least two-thirds of a determinate sentence is served. The proposed changes have now been introduced in the form of the Criminal Justice Reform Bill. The major motivator behind the proposed reforms is the removal of inconsistencies in sentencing. Inconsistencies in sentencing and in actual time served were perceived by the Law Commission to be the major cause of public discontent with the criminal justice system. These same inconsistencies were also seen by the Law Commission as causing problems for resource planning by the Department of Corrections.[2] However, the Government has also announced it will be expanding restorative justice with three new proposals to be implemented over the next three years. One of these proposals is to increase court-referred restorative justice processes which operate at the pre-sentencing level for more serious offending.[3] The Law Commission believes a sentencing guideline can be drafted that will enable restorative justice process outcomes to fit the new consistent approach to sentencing.[4] The objective of this paper is to consider whether it is possible to draw up such a sentencing guideline, while at the same time taking seriously the theory and outcomes of restorative justice processes. In order to explore this argument, this paper looks at restorative justice theory and different models of sentencing practice as the context for the argument.

The first part of this paper sets out the issue and also considers the Law Commissions recommendations, the Criminal Justice Reform Bill, and restorative justice. The second part of this paper looks at sentencing practices as points on a continuum between absolute discretion and absolute consistency. In the context of this continuum, the merits of the two-stage sentencing practice, recommended by the Law Commission to become the standard sentencing practice in New Zealand, is debated. The third part of this paper explores the difficulties that arise when restorative justice processes intersect with conventional criminal justice sentencing, including the difficulties that arise depending on the point on the continuum at which the sentencing practice sits. The writer concludes that aiming for a sentencing practice that will provide consistent outcomes in sentencing will diminish the potential of restorative justice processes and that, therefore, the Government's initiatives are fundamentally incompatible.

II. The Problem Defined

Sentencing is a major component of any criminal justice system. Sentencing is the end outcome or result on which the criminal justice system is judged by all, including the victim, the offender, the public, and the state players. Sentencing involves weighty decisions on whether to take an individual's liberty away and, if so, for how long. The Law Commission's view is that it is the highly discretionary nature of New Zealand's current sentencing and parole arrangements that is the core problem.[5] It considers that there is significant inconsistency in sentences imposed by individual judges and, geographically, by individual courts, leading to unlike treatment of like cases.[6] The Sentencing Act 2002 codified sentencing purposes and principles. However, this Act continues to allow judges to determine policy as to sentence levels, subject only to the maximum penalty for an offence. Policy has been piecemeal and reactive, tied to the context of cases that come on appeal. There is no mechanism for Parliament to have input into sentencing policy other than prescribing maximum sentences.[7]

The Commission's paper does not discuss the rationale for the importance of consistency in any depth other than to say that consistency has always been an objective of sentencing policy and that s 8(e) of the Sentencing Act 2002 now gives this statutory backing.[8] Section 8(e) provides:

In sentencing or otherwise dealing with an offender the court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

The Law Commission believes that the guidelines will ensure transparency and hence 'truth in sentencing'.[9] Ashworth argues that consistency in sentencing involves a rule of law argument, that is, that judicial decisions should be taken openly and by reference to standards declared in advance.[10] He cautions, however, that consistency is an abstract virtue and should not outweigh the primary rationales for sentencing.[11]

The Commission also sees problems with parole. The Parole Board has considerable discretion, which the Commission views as further promoting inconsistency in sentences served and creating unpredictability in prison population forecasting for the Department of Corrections.[12] These factors led the Commission to recommend the establishment of a Sentencing Council to draft sentence guidelines. The sentencing guidelines envisaged will be similar to the Court of Appeal's two-stage guideline judgments which the Court has produced for certain offences when an appeal has provided the opportunity. Such guideline judgments exist only for some offences. The guidelines will contain a mix of numerical and narrative standards and will cover all offences in New Zealand.[13] To ensure consistency, judges would be required to adhere to the guidelines.[14] The Sentencing Council would broaden the basis of responsibility for determining sentencing policy by having a mix of judicial and non-judicial members.[15] The guidelines will be endorsed by Parliament through the select committee process and a vote of the whole house.[16] Parole for prisoners serving over one year in prison would not be available until two thirds of the sentence is served and there would be no parole at all for prisoners serving less than a one year sentence. These measures, the Commission argues, will allow for accurate prison forecasting and resource allocation.[17]

The measures are part of a wider sentencing review which is being proposed in the Criminal Justice Reform Bill. The explanatory note to the Bill says that its purpose is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. It is argued that this increase is no longer sustainable, neither financially or socially. New Zealand's imprisonment rate is considerably higher than the countries that New Zealand is habitually compared with, such as the United Kingdom, Canada, and Australia. The Bill is intended to contribute to a reduction in the imprisonment rate over time. The Bill builds on reforms contained in the Bail Act 2000, the Sentencing Act 2002, and the Parole Act 2002. Those reforms were a direct response to the 1999 criminal justice referendum and have led to serious and persistent offenders being punished more severely. The explanatory note says that there will be no retreat from that policy because the safety of the community means that there is no acceptable alternative to imprisonment for this class of offender. However, the Bill seeks to improve consistency and transparency in sentencing and to provide a greater range of sentencing options to the courts in order to reduce the number of offenders sent to prison. To this end, the Bill provides for the introduction of an explicit hierarchy of sentences and orders as well as three new noncustodial sentences. The latter are intended to address the increasing use of incarceration for less serious offenders, which, it is viewed, has played a significant part in the increasing prison population. The new alternatives to imprisonment included in the Bill are aimed at this group of offenders, and are to be used where appropriate and safe. They include a new separate sentence of home detention, a new sentence of community detention, and a new sentence of intensive supervision.

At the same time as introducing the Criminal Justice Bill, the Government is also expanding provision of restorative justice processes, including pre-sentencing processes. The Ministry of Justice has said with regard to expanding restorative justice that '[g]ood quality restorative justice process can reduce the number of offenders sentenced to imprisonment, shorten their sentence, and reduce re-offending'.[18]

Therefore, both reforms seem aimed at reducing the prison population. The Ministry of Justice describes restorative justice as

a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.[19]

So, restorative justice is a process that is personalised to the participants, and is designed to provide an outcome which is similarly personalised to the participants. The outcome of a conference cannot be known in advance because it is a result of an interpersonal exchange that happens between the participants; it is a process that has been shown to throw up unpredictable outcomes.[20]

The Law Commission stated:

We believe that a careful distinction needs to be drawn between the availability and execution of restorative justice processes (which are not the province of sentencing guidelines) and the way in which restorative justice outcomes should be taken into account in sentence decision-making. In relation to the latter, there appears to be no reason why a guideline could not be drafted for the explicit purpose of recognising the validity and relevance of such outcomes, and indicating how they may properly be taken into account on sentence. Examples of this kind of approach are found in s 8 of the Sentencing Act 2002 (emphasis added).[21]

The problem that faces the Sentencing Council is how to draft a guideline that provides consistency in sentencing, whilst remaining sensitive to the needs of victims, offenders and the community, and any outcomes they jointly agree to through a restorative justice process. The Law Commission itself has noted this as a particular concern:

In New Zealand, where restorative justice is expanding and showing some evidence of success and where it has particular relevance to Maori and Pacific Island cultures, it is important to ensure that this valuable initiative is not overtaken or stifled by the implementation of sentencing guidelines.[22]

Restorative Justice

There is now a large body of literature describing and debating what restorative justice is and chronicling its spread throughout the western world over the past thirty years as an alternative criminal justice paradigm.[23] New Zealand is seen as a world leader in incorporating restorative justice into the conventional criminal justice paradigm.[24] Successive New Zealand governments appear enthusiastic to continue the 'experiment' with this new paradigm, despite evaluations showing that it is not living up to the high expectations that some hold for restorative justice.[25]

Howard Zehr is seen as the foremost writer and expert on restorative justice and it was his book, Changing Lenses, which first gave a wide audience to the coining of the metaphor 'looking at criminal justice through a new lens'.[26] The conventional western criminal justice paradigm, Zehr argues, is a paradigm where crime is seen as a violation of the state. The main players are the state and the offender. The state defines what a 'crime' is and decides on the outcome for the offender.[27] This paradigm is seen by Zehr as having been unsuccessful in the western world, given spiralling crime rates and imprisonment rates.[28] The alternative paradigm, restorative justice, sees crime as a violation of people and relationships. The main stakeholders in the restorative justice paradigm are the victim, the offender, and the community. Thus the victim and his or her supporters, and the offender and his or her supporters, and at times the wider community, meet together to consider the impact of the crime in what is usually termed a restorative justice conference. The emphasis is on the offender to take responsibility for his or her actions and to redress the harm that he or she has caused. The outcomes of the conference are based on consensus decision making among the parties present.[29]

This paradigm, it is argued, presents more opportunity for the victim and the offender to recover from the harm of the crime, as relationships are restored and the offender has the opportunity to put things right rather than being punished for the sake of being seen to appease the public appetite for retribution. The focus of the conference is not outcomes. The focus of the conference is the interchange that happens between the offender and the victim, and between their supporters, in order to restore the harm done. The secondary aim of the conference is to decide on outcomes.[30] Thus the restorative justice paradigm suggests a complete severance from the conventional criminal justice process. This is in effect what happens in New Zealand for the majority of youth offenders, and for some adult offenders committing minor crimes.[31] However, for the majority of adult offenders, a restorative justice conference, if offered, is an addition to the conventional criminal justice system. That is, if the offender and victim are willing and the offender has pleaded guilty, then, prior to sentencing, the judge may allow a restorative justice conference to take place. Section 8 of the Sentencing Act 2002, for the first time, gave statutory backing to restorative justice, stating that judges must take into account restorative justice conference outcomes at sentencing. Section 8 does not say how these outcomes must be taken into account.[32]

There are many critiques of restorative justice. Thorburn claims restorative justice is not a substantive theory of criminal justice, but an anti-theory. He says:

Rather than setting out a new way of structuring the state apparatus of criminal justice, it suggests that we dismantle that apparatus and leave it largely up to the interested parties to deal with the aftermath of crime as they see fit.[33]

He argues while this may work with minor offences that are able to be diverted away from the formal court system, restorative justice theorists do not give a structure of how to deal with serious crime or persistent repeat offenders. Instead, Thorburn says, theorists continue to put forward core values as an answer, 'values that are about healing rather than hurting, moral learning, community participation and community caring, respectful dialogue, forgiveness, responsibility, apology, and making amends'.[34] Thorburn does acknowledge, however, that as an anti-theory, restorative justice is a useful critique of the conventional criminal justice paradigm because

restorative justice makes an important contribution to criminal justice literature in two much humbler ways: first, as a reminder to heed the emotional needs of all participants in the criminal justice system; and second, as a plea for restraint in the use of the criminal sanction.[35]

The writer rejects Thorburn's view that restorative justice is just an anti-theory. It is the writer's view that restorative justice is a substantive theory, albeit a theory that only focuses on crime as a violation of people. Restorative justice theory is about the potential for healing that can happen when a victim, an offender, and their community, sit down and talk about the offence. That does not mean as a theory it is able to deliver the type of miraculous outcomes that some commentators claim,[36] because the full potential may not be reached in all, or even the majority, of cases. It is arguable, therefore, that as a theory, it does not have universal application. Daly provides a useful critique based on research from Australia which suggests that the potential of the restorative justice process is affected by degree of preparedness of the participants. She concluded that victims who are deeply affected by crime were more likely to remain angry and fearful of the offender even one year after the conference and therefore needed more than restorative justice to recover from the crime.[37] The evaluation of the Court Referred Restorative Justice Pilot published by the Ministry of Justice in 2005 came to the same conclusion.[38]

Restorative justice processes cannot be a panacea for all criminal justice problems, nor can they be expected to dramatically reduce re-offending rates.[39] Accordingly the writer shares Thorburn's concerns regarding the inability of restorative justice theorists to offer a fully developed system of how to deal with all offending. In the Court Referred Restorative Justice Pilot evaluation, one of the major problems highlighted was that only one third of victims wished to meet the offender.[40] In the writer's view, this is a concrete example of Thorburn's critique; how can one construct a new model of justice based around the victim and offender meeting to repair harm done if the victim does not want such a meeting? While some theorists believe restorative justice could replace the conventional criminal justice system,[41] others acknowledge that this is not possible, and indeed should not be the aim.[42] As an alternative theory, restorative justice describes a way for victims, offenders, and the community, to heal the emotional impact of crime. This does not mean that the state no longer has a role to play in sentencing criminals. With respect to serious and persistent offending, it is arguable that the public good requires that the state retain an interest in sentencing. This accepted, the difficulty becomes whether to merge these paradigms of justice and, if so, how? The Sentencing Act 2002 does not provide for a merging of the paradigms, merely for a point at which they intersect, which is at sentencing. Is this a valid point of intersection? Or, is the intersection of the paradigms upon sentencing being pushed, on one hand, by a government eager for new answers to an old problem, and, on the other hand, by restorative justice proponents eager for their theory to find a wider group of participants? The writer believes that, even without state sanction, victims and offenders will continue to meet now that avenues exist for this to happen. Complete severance of the paradigms, therefore, is a valid option.

However, given that the paradigms of conventional criminal justice and restorative justice are to continue to intersect at sentencing as provided for by the Sentencing Act 2002, the issue becomes one of how a sentencing judge might recognise the state's role whilst remaining sensitive to the needs of victims, offenders, and the community, and any outcomes they jointly agree to through a restorative justice conference. It will be shown in the third part of this paper that the current sentencing system struggles to encompass both paradigms at sentencing. The issue is whether this struggle will be resolved under the guidelines drafted by the Sentencing Council, given that the underlying rationale for the guidelines is consistency. The paper now turns to the problem in the context of sentencing practice.

III. Sentencing Practice Continuum

Sentencing practice can be viewed as points on a continuum between absolute discretion and absolute consistency. Absolute discretion tends towards disparity in sentencing, whilst absolute consistency in sentencing leaves little room for discretion.[43] As the Sentencing Act 2002 provides for the conventional criminal justice system and restorative justice processes to intersect at sentencing, the type of sentencing practice employed is relevant to how successful the outcome of this will be.[44] Towards the absolute consistency end of the continuum is, for example, the United States and towards the absolute discretion end is, for example, Australia. New Zealand currently has a mixed sentencing practice. As the Law Commission states, New Zealand has highly discretionary sentencing laws, yet for some offences the Court of Appeal has issued guideline judgments that sit on a point midway on the continuum. This is because they aim for consistency without undue rigidity. The Law Commission's aim is for the Sentencing Council to produce guidelines for sentencing that are similar to the guideline judgments and thus attempt to position New Zealand sentencing practice at a midpoint on the continuum.[45]

All sentencing practices traditionally require the judge to weigh up a number of factors upon sentencing. These factors are usually divided into aggravating and mitigating factors.[46] It is the amount of the discretion the judge has over this process that leads different jurisdictions to sit at different points on the continuum. The concept of aggravating and mitigating factors has attracted little theoretical discussion. This is probably because they are so well established in sentencing law that they are no longer questioned.[47] The majority of aggravating factors relate to the offence itself, acknowledging, for example, that the circumstances of one assault can be quite different from another. Aggravating factors go towards increased seriousness of the crime. Mitigating factors, on the other hand, are generally personal mitigating factors. Ashworth argues that the policy behind mitigating factors ought to be tied to the primary rationale of sentencing. If the primary rationale of sentencing is proportionality, personal mitigating factors should not have much impact. But if the primary rationale of sentencing is rehabilitation, personal mitigating factors, such as remorse, may be relevant.[48] The difficulty in the use of aggravating and mitigating factors is that value judgments are being made, even in respect of the most accepted and long standing factors.[49]

United States

The United States Federal sentencing guidelines are a good example of the absolute consistent approach to sentencing. The guidelines consist of a two-dimensional numerical grid with one axis devoted to offence seriousness and the other to the offender's criminal history. The offence seriousness is the vertical axis and gives ratings from one to 45. For example, at the lower end of the scale, a minor assault is a base level of four, whereas first degree murder is a base level of 43. The guidelines include very detailed and complex instructions to calculate the offence seriousness.[50] Aggravating and mitigating factors are built into the offence seriousness axis. As an example of this, for the offence of criminal sexual abuse, the base offence level is 30. There are six further categories (or aggravating factors) that raise the base level. One, for example, is the victim's injuries. If the victim sustained permanent or life-threatening bodily injury, the base level is increased by four levels.[51] If the victim sustained serious bodily injury, the base level is increased by two levels. If the degree of injury is between these two descriptions, the base level is increased by three levels. The only two personal mitigating factors included in the guidelines are acceptance of responsibility and an early guilty plea. This is again built into the offence seriousness and a corresponding and specified deduction of points is allowed.[52]

The horizontal axis is the offender's criminal history. This is assessed by points for prior convictions. There are seven different categories ranging from I (0-1 points) to VI (13 + points).[53] The sentencing table works by the judge deciding at which point the offender is on each axis with the table then giving a sentence range for the point of intersection. Thus an offence score of 13 and an offender category of III would equal a sentence of 18-24 months. If the offender had a category of IV, his or her sentence would be 33-41 months.[54] Therefore, judges do not have much discretion over length of sentence, nor do they have discretion over aggravating and mitigating factors because these are built into the guidelines.[55] Whilst the United States is viewed as having harsh penal sentences, the Law Commission pointed out that reforms of this kind are not necessarily equal to penal severity, that is, the system can be used to have consistent sentencing guidelines that are lenient or severe depending on the legislature's view.[56] The advantage to the legislature is that penal resource management is predictable. Thus, this type of sentencing practice sacrifices discretion for consistency.

New Zealand

Discretionary

New Zealand has a discretionary sentencing practice, excluding offences in respect of which the Court of Appeal has issued guideline judgments. The Sentencing Act 2002 listed, for the first time in New Zealand, the purposes of sentencing. Section 7 codifies the common law purposes of sentencing: to denounce the conduct in which the offender was involved; to deter; to protect the community; and, to rehabilitate and reintegrate the offender. Section 7 does not state that retribution is an aim of sentencing. Instead, s 7 makes reference to the following: holding the offender accountable for harm done to the victim and community; promoting a sense of responsibility for and acknowledgment of harm; providing for the interests of the victim; and, providing reparation for harm done. The Act does not give a hierarchy of purposes, so no one purpose is dominant and not all purposes have to be met. There is an inherent tension in the stated sentencing purposes in that some purposes pull in different directions. An example of this is the need to protect the community versus the desire to rehabilitate the offender. Ashworth states that it is well established in this type of discretionary sentencing practice that a major source of disparity in sentencing is the different penal philosophies of the judges. This is due to what he calls the 'cafeteria' of purposes of sentencing. When there is a discretionary system combined with a variety of sentencing purposes, none of which is dominant, the result is that judges can chose the foundation on which to base their sentence, subject to any maximum or minimum provisions laid down by the legislature.[57]

Section 9 of the Act lists 11 aggravating factors and seven mitigating factors that a judge must take into account upon sentencing, to the extent that they are applicable in the case before the judge. Again there is no stated hierarchy of importance, nor any indication of the weight to be given to each factor. The factors listed are not an exhaustive list as the judge may consider other factors. Therefore, the discretion on how to use the aggravating and mitigating factors lies entirely with the judge. As will be shown in the third part of this paper, in New Zealand the 'cafeteria', both of sentencing purposes and aggravating and mitigating factors, has led to the outcomes of restorative justice conferences being treated differently according to the view that individual judges have of restorative justice.

Two stage guidelines

The Law Commission wishes to move sentencing practice to a mid-point on the continuum by introducing more consistency. The type of guidelines it envisages will not be dissimilar to the Court of Appeal's current approach to guideline judgments.[58] These, at present, exist only for a few offences. An example is the guideline judgement issued for the offence of grievous bodily harm in the case R v Taueki.[59] The Court said that the 'modern approach to sentencing' involves a two-stage process. The first stage sets the starting point of the sentencing process for an offence of grievous bodily harm by taking into account aggravating and mitigating features of the offending.[60] From that starting point, the second stage is to assess aggravating and mitigating features of the offender.[61] The Court of Appeal's approach was to ascribe three numerical sentencing bands as stage one in a two-stage approach to sentencing. The Court also gave narrative guidelines which identified fourteen aggravating features of the offence and two mitigating factors which, if present, alter the starting point in the band.[62] Accordingly the first numerical band is deemed to be three to six years and is appropriate for violence at the lower end of the spectrum. If no aggravating features are present, three years is an appropriate starting point. The presence of one or more factors requires a higher start point within the band (that is, between 3-6 years). Band two (5-10 years) is seen as appropriate for offending which featured two or three aggravating features. Band three (9-14 years) encompasses serious offending which has three or more of the aggravating factors and where the combination of these factors is particularly grave.[63] The aim, therefore, of stage one is to set an 'objective sentence' based on the circumstances of the offence. The two mitigating factors that will give a lower start point, if present, are provocation and excessive self defence.[64]

The second stage involves deciding on whether the circumstances of the offender require the actual sentence to be higher or lower than the decided start point in stage one. The Court listed the mitigating factors of the offender as: an early guilty plea; giving assistance to authorities; age; remorse shown by the offender; the offender's previous good character; and, any other personal circumstance the court believes to be a mitigating factor. Aggravating factors are the offender's previous criminal offending, and whether the offence was committed while on bail or parole for another crime.[65]

In essence, sentencing in this way becomes a mathematical exercise by the sentencing judge, that is, the judge has to decide on a sum of years as a start point for the 'objective' offence and only then can discount another sum of years for the offender's behaviour afterwards. This approach, whilst not being as prescriptive as the United States' guidelines, narrows the judge's discretion. This two-stage approach to sentencing has been recently been rejected by the High Court of Australia and this, therefore, provides a useful critique for the mid-point of the continuum.

Australia

Australia's sentencing practice lies at the discretionary end of the continuum. In Markarian v R the High Court of Australia stated that the correct approach to sentencing is one in which the judge weighs all of the circumstances of the offence and the offender and reaches an appropriate penalty.[66] The High Court rejected as wrong in principle a two-stage approach in which the first stage is to arrive at an objective sentence and then adjust this sentence by some mathematical value given to one or more features of the case.[67] The Court felt that this is apt to give rise to error because it does not take into account the fact that there are many conflicting and contradictory elements which bear upon the sentencing an offender. The Court said that attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong.[68] In the earlier case of Wong v R the High Court had called the process of taking account of all factors when sentencing as one of 'instinctive synthesis'. However in Markarian v R the majority of the Court rejected using this phrase because, whilst it might be useful as a description, it also suggests an 'arcane process into the mysteries of which only judges can be initiated'.[69]

McHugh J took the debate further, stating that, in his view, a sentence can only be the product of human judgment. In his view, the circumstances of criminal cases are so various that they cannot be the subject of mathematical equations because sociological variables do not easily lend themselves to mathematisation. He stated that an analysis of the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. This is because the starting point, itself, involves a value judgment, as does any assessment of increment or decrement for each factor in the process.[70] He stated:

The instinctive synthesiser asserts that sentencing is not an exercise in linear reasoning because the result of each step in the process is not the logical foundation for the next step in the process.[71]

McHugh gave the example of a mother who has killed her new born baby and asked how a judge could possibly fix a first stage sentence for the mother without taking into account her personal circumstances.[72] With regard to the dangers of the two stage approach, he stated:

The tendency of the mind is to seize on one or two variables — usually those with which the decision-maker is most familiar or which seem the most cogent- and give that variable undue weight ... The tendency to err must increase when particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.[73]

The Law Commission, on the other hand, stated that the 'instinctive synthesis' approach has not found favour in New Zealand. The Law Commission rejected the argument for it, labelling it as 'individualised justice' which, in its view, can easily become an excuse for 'inconsistent justice'.[74] McHugh J argues, however, that in a two-stage sentencing practice, ultimately, greater weight is given to the retributive or deterrent theory of sentencing. He argues that mitigation, reformation, and rehabilitation, are down played because the start point must be the 'objective elements' of the offence.[75] Thus retribution for the objective offence will always be more important than anything the offender can do afterwards. If this is correct, the two-stage approach to sentencing, while moving New Zealand to a more consistent approach, will down play any initiatives, such as restorative justice processes, which turn away from retribution and towards restoration. This paper now turns to look in detail at how these different sentencing practices impact on restorative justice processes.

IV. The Intersection

This section will cover difficulties with the intersection of the conventional criminal justice system and restorative justice processes that are common to all sentencing practices, as well as the difficulties that are particular to the model of sentencing practice adopted. This section will also look at the model that Canada has adopted for sentencing circles, as this provides an alternative view of restorative justice and sentencing.

Difficulties Common to All Sentencing Practices

The intersection of the two different paradigms of justice at sentencing throws up a number of problems which are likely to occur in any type of sentencing practice. These were identified in the Court Referred Restorative Justice Pilot. First, for a judge to take into account restorative justice processes upon sentencing, such a process needs to have been held. In the pilot, only one-third of victims wished to meet the offender pre-sentencing.[76] There may be different reasons for this, which are often linked to the timing of the conference pre-sentencing. For some offences, it is too soon after the crime for the victims to wish to meet the offender. On the other hand, if there has been a lengthy time between the offence and the time the offender has been apprehended and sent to court, the victim may have emotionally moved on from the crime and may no longer wish to meet the offender. Other victims may be disinterested in the process. Some victims, no matter what the timing of the conference, will not wish to meet the offender. How does a sentencing practice accommodate an offender who wishes to meet his or her victim but is unable to do so? It will always be problematic to have a variable upon sentencing which is unable to be applied universally due to a lack of consistent opportunity.

Another problem relates to the genuineness of the offender's offer to meet his victim. Anecdotally, crown prosecutors believe that defence counsel suggest that offenders attend conferences in order to achieve a reduced sentence.[77] Depending on where you stand, this can be seen as a problem. Many restorative justice practitioners are comfortable with offenders being offered 'carrots' to attend conferences. It is argued that the conference can have a meaningful impact on the offender regardless of his or her initial motivation for attending.[78] More cynical commentators would see this as offenders using the system for their own ends. Therefore, it raises the question of who is able to determine whether attendance at a conference, and any resulting apology, is sincere. Currently restorative justice facilitators make a report for the judge. However, this is a summary only of what happened in the conference. It is not for facilitators to make a value judgment on whether they believe the offender's apology to have been genuine. From experience, often the best indicator of genuine remorse is an offender's body language, which is difficult to report.[79] Many offenders are not the most articulate of individuals.

It is also problematic to pigeon-hole the victim's role in restorative justice processes. While a victim may wish to meet the offender and discuss the impact of the offence, the victim may not want to participate in the sentencing process. The victim may have no views on what the offender could do to repair the harm done, nor may the victim wish the offender to do anything to repair the harm.[80] The victim may not wish for restoration, nor be able to be restored by the process. The victim may be overly accommodating of the offender or excessively vengeful. The 'community', that restorative justice theory states is the third party in the conference, is often the elusive ingredient.[81] In terms of tying restorative justice practices into sentencing purposes, it worth noting that nationally and internationally, empirically, restorative justice theory remains relatively unproven.[82] Therefore, to say that a restorative justice process will achieve a certain purpose of sentencing is a statement that still awaits empirical validation.

In addition to these general concerns with regard to the intersection of the two paradigms at sentencing, further issues arise depending on the point of the continuum that the sentencing practice sits.

Absolute Consistency

The primary objectives for sentencing in the United States are honesty (transparency), uniformity and proportionality.[83] The United States Federal guidelines have a consistency of policy that flows from the primary objectives of sentencing to the mitigating factors that are allowed to affect sentences. The United States Sentencing Commission faced pressure to reconcile the various purposes of sentencing and decide on a dominant purpose on which to base its guidelines. It decided that this was fraught with difficulty, and so decided to follow, instead, the three objectives in the Sentencing Reform Act 1984. The Commission then used empirical data from current sentencing as the base for its guidelines, adjusting them to ensure uniformity and proportionality.[84] Its absolute consistency approach onlyworks by allowing little room for personal variables relating to the offender. Therefore, mitigating factors that sentencing practices normally allow for, such as age, good character, employment record, and mental or emotional state, are not relevant to sentencing.[85] There is little discretion for judges because aggravating and mitigating factors are built into the sentencing guidelines. The only opportunity for a restorative justice process to affect sentence might be if attendance at a conference is accepted as an expression of responsibility for the offending and so qualifying for a two point deduction in offence seriousness. This would reduce the outcome of a conference to a blunt mitigating factor with no allowance to incorporate victim/offender agreements into sentencing. The Law Commission declined to follow the absolute consistency approach of the United States guidelines, saying that, in its view, that they are too crude and blunt to ensure justice in individual cases and they undermine the judge's role in sentencing.[86]

Absolute Discretion

In addition to the Court Referred Restorative Justice Pilot offering restorative justice conferences pre-sentencing in four courts in New Zealand, there are a number of restorative justice providers offering services throughout the country.[87] Judges, since 2002, have been required to take into account the outcomes of restorative justice processes and a body of case law on this requirement now exists.[88] Consistent with Ashworth's critique of a discretionary sentencing practice, it appears the treatment of the outcomes of conferences depends on the penal philosophy of individual judges. The 'cafeteria' of purposes of sentencing, along with a lack of guidelines on the weight to be attributed to mitigating factors, have allowed for vastly different outcomes. Perhaps understandably, given the nature of their roles, many judges are sceptical of restorative justice, especially given the fact that many of New Zealand's most persistent recidivist criminals have been through many similar restorative processes as youth offenders and are still offending.[89] At the lower end of the offence scale, where the sentencing judge has discretion over the in/out question (ie, whether to incarcerate or not), it is probable there is significant inconsistency in sentences given by judges who 'believe' in restorative justice and those who do not. The reported cases do show that some judges have taken the opportunity to embrace restorative justice processes and fully incorporate outcomes of the conference into sentencing, the result of which, in some cases, has been a vast reduction in sentence. This shows the advantage of a discretionary sentencing practice is that it can accommodate judges trying new or alternative theories of sentencing, whereas the disadvantage is inconsistent treatment of such theories.

The majority of judges have listed attendance and outcomes of restorative justice conferences as a mitigating factor upon sentencing. However, it is not clear whether the fact that a conference has taken place has actually resulted in a discount in sentence. This is because the conference is often mentioned in combination with other factors, such as an early guilty plea and offender remorse. Restorative justice processes are not usually singled out as a factor that is alone responsible for a reduction in sentence. For example, in Police v Taimerua[90] the offence was careless use of motor vehicle causing death. The District Court Judge held that the mitigating factors led to a reduction of a 12 month sentence by four months. He listed the mitigating factors as: lack of previous convictions; age; expressions of remorse; the fact that restorative justice had taken place; and, an early guilty plea.[91] Given an early guilty plea usually attracts a 1/4 reduction in sentence, it appears the conference was not a further factor considered. It appears the conference was seen as the expression of remorse, and therefore did not count further towards a discount.[92] However, the evaluation of the Court Referred Restorative Justice Pilot showed that offenders in the pilot programme were imprisoned less frequently and, when imprisoned, were sentenced for a shorter time than the matched control group.[93] It was unclear from the evaluation whether this was due to the same combination of factors or whether it was the conference that made the difference in sentencing.

Some judges have declined to allow restorative justice processes to be a mitigating factor. In R v Senelale,[94] a highly publicised manslaughter case, Mr Senelale, a young 17 year old who was a promising young rugby player, after an altercation with the victim, followed the victim and punched him in the jaw. The punch caused the victim to fall heavily and sustain head injuries from which he later died. Mr Senelale attended a restorative justice conference with the victim's family. Fogarty J said:

To your credit you have participated in a restorative justice conference with Mr Smith's family. That is to your credit. But it is not a factor that goes towards lowering or discounting the sentence you will receive.[95]

Senelale was sentenced to two and a half years imprisonment. But in another manslaughter case, R v Cassidy,[96] where death resulted from a similar punch in similar circumstances, credit was given for attendance at the restorative justice conference. Paterson J said:

I intend to give you credit for attending the restorative justice process. I know you have said it is the hardest thing you have done and I can understand that. You did not need to do it, and you will be given credit for that. I accept there has been genuine remorse and a genuine attempt by you to assist the victim's family.[97]

He added:

Mr Cassidy, because of the remorse you have expressed, and the other mitigating factors and your attendance at the restorative justice conference, you will be given a larger discount than would be normal.[98]

Mr Cassidy was sentenced to two years imprisonment. Both offenders were first time offenders, and both incidents involved alcohol.

Some judges are sceptical of restorative justice processes. For example, in Payne v Police,[99] Hansen J was sceptical both of the victims' views and the offender's remorse. With regard to the victims, he said:

It may be that some of [the victims] were in an older age group because the victims felt that good hard physical work like scrub cutting would be good for this young man. That is a view that is generally attributable to an older section of the community, like those who believe compulsory military training would solve all the ills of modern society.[100]

With regard to the offender, he said that the trial judge was open to treat the offender's remorse with skepticism, as an earlier probation report had said that the offender was not remorseful.[101] Hanson J does not appear to have considered that remorse may come through the restorative justice encounter.

Other judges are clearly in support of restorative justice processes and have attempted to take into account these processes in a more comprehensive manner than merely regarding the process as a mitigating factor. In R v Folaumoeloa,[102] a case involving a young man and aggravated robbery, Judge Thorburn, a well known proponent of restorative justice, had this to say:

Restorative justice and its influences or effects are not measurable in any scientific or empirical way and so the way to evaluate the effect of a restorative justice meeting cannot be formulated. The extent of acceptance by a victim of an apology, for example, such as expiates or mitigates the wrong can't be measured. What is expiation in such a context? The legislation does not say. I think at least it would include a process that returns some peace and confidence to the heart and emotion of a victim — a feature or quality which is, of course, not measurable.[103]

Judge Thorburn went onto describe the restorative justice conference, stating, '[a]nd, in what is reported in a remarkable way, there was a genuine human experience taking place'.[104]

With regard to the link to sentencing, he said:

The restorative justice experience is demonstrating that it can be a powerful tool to achieve the purpose in s 7 of holding an offender accountable. Common sense would surely affirm that there is more likelihood of acceptance of accountability and understanding of the harm caused through crime when one is sitting face to face with one's victim. This is a dimension of process that restorative justice has introduced. Most practitioners in the criminal justice field understand that offenders often serve sentences of imprisonment without at any stage making the emotional or rational connection between their offending and its effects on victims. The meeting in this case such as it is reported to me is of great significance in my view because of its potential to deal with that. Mitigating factors that I have referred to include remorse shown by an offender. Again, how does one measure remorse? Letters of apology are often written but as we all know, very often they are worth no more than the paper they are written on. True remorse, surely, can be more readily seen in the intimate circumstances and intensity of an actual meeting.[105]

Judge Thorburn, therefore, was not using the restorative justice process as a factor to be balanced against other sentencing aims, he was stating the aims of the Sentencing Act 2002 could be achieved through the restorative justice process. Judge Thorburn said the offence could have attracted a four year sentence, but he reduced the sentence given to one of 10 months with leave to apply for home detention. The factors which prompted this were: the conference; the offender's age; remorse; and, strong family connections. Judge Thorburn said the public view might be that restorative justice processes are a way to avoid prison but stated that he wanted to disavow this view and impose a sentence of a term of imprisonment. But he also gave leave to apply for home detention, despite stating this would not normally be granted in such a case. His reason for this was that, in his view, the circumstances and background of the offender militated in favour of this, as did the victim's attitude as demonstrated in the restorative justice conference. He imposed a sentence of 10 months, discounted from a starting point of four years.[106]

Some judges have gone even further than this. For example, in Police v Spring[107] an assistant principal at a large school failed to account for nearly $30,000 from two Maori educational and community-based trusts after she became addicted to pokey gambling machines. The money in those trusts had been saved over many years and was meant to help build a marae, as well as other buildings and centres. After a series of restorative justice conferences, Judge Everitt said:

There is a matter I want to address ... and that is the dilemma that you place your people in as to what to do, how to deal with this. Should we deal with it the Maori way, or should we deal with it by the law way, the English law way, the New Zealand law way, the common law way, whatever way?[108]

He left the question in the hands of a community leader, who advocated resolving the matter in the Maori fashion and keeping Ms Spring in the community. Judge Everitt justified his deference to the community and the subsequent non-custodial, rehabilitative sentence as follows:

I am pleased to have heard [those who spoke on your behalf] also because this offending directly touched on the victims. This is not some amorphous anonymous organisation that nobody knows such as big bank face. This is the face of your community, the community you live in, your whanau lives in and your work community, teachers and friends. So it is very relevant and I do accept that.[109]

Police v Spring therefore shows that some judges are willing to use the outcome of restorative justice processes not just as a mitigating factor against the traditional sentence, but as the sentence itself and, in this case, to be led by the wishes of the community. Another proponent of restorative justice, Judge McElrea, in R v Sami,[110] a case involving a charge of assault with intent to rob, said:

Where a defendant takes part in a restorative justice process, which is successful in achieving the usual objectives of that sort of process, then that can have a very real relevance in terms of the purposes of sentencing.[111]

He went on to say:

Where a defendant such as Mr Sami takes part in a conference with a direct face-to-face meeting with the victim (and is willing to answer her questions and to be accountable to her in a very direct way) the Court in my view can accept, as a mitigating factor, that he has already been held accountable in that face-to-face way for harm done, and he has been held accountable in a way which is likely to promote a sense of responsibility for harm and some personal acknowledgement of that harm. The conference has also provided for the interests of the victim by making things easier for her and her family to put this incident behind them and to move on in their lives.[112]

Judge McElrea also saw the conference was a vehicle for denunciation, saying:

I certainly accept the need to denounce this crime. I do so strongly now, and I am sure that that denunciation has already occurred through the defendant's family and the restorative process. He has been held accountable not just through the Court but in a direct, face-to-face way. He has assisted the victim in a way that many defendants do not.[113]

The outcome of the conference was that the apology was made and accepted, the offender would join the youth group at his father's church, and he would pay $150 reparation. Consquently Mr Sami was sentenced to 200 hours of community work with reparation of $150 to be paid into a bank account for the victim's children. The youth group attendance did not become part of the sentence. Judge McElrea, therefore, used the process to meet purposes of sentencing as well as seeing the process as a mitigating factor. This brief sample of cases shows the vast disparity between judges when taking into account the outcomes of restorative justice processes within the context of a discretionary sentencing practice.

Consistency with Discretion — The Mid-Point

The aim of the Sentencing Council is to move New Zealand's sentencing practice to a mid-point on the continuum. The difficulty the Sentencing Council will face is how not to fall into the rigidness of the United States' guidelines while producing numerical guidelines that will ensure a minimum of consistency. And, at the same time, how to move away from a discretionary system that allows for innovative decisions but does not stifle new initiatives such as restorative justice. This difficulty is compounded by the fact the Government has not given clear policy direction in the Sentencing Act as to the dominant purpose of sentencing and the weight to be given aggravating and mitigating factors. One of the reasons why the United States' guidelines achieve consistency is because there is a consistent policy from the objectives of sentencing which flows into the mitigating factors that are considered to be relevant and the weight to be given to them. This will be difficult to achieve in New Zealand as it is submitted that the Government appears to trying to reconcile different agendas. One is the agenda to reduce prison populations while, at the same time, appear to be harsh on serious offenders in order to appease the public appetite for 'truth in sentencing'.

It is the writer's view that the two-stage approach will only allow for restorative justice processes to be considered as a blunt mitigating factor, and thus will reduce the potential effectiveness of the process. At present, as a mitigating factor, it is not clearly tied to sentencing purposes and there is no direction as to what weight the process should carry. At what stage would the restorative justice process outcome outweigh the public safety and deterrence factors of incarceration? McHugh J's critique warns that the objective approach maybe illusory and judges will continue to sentence based on their penal philosophy. This could be difficult to counter, especially on the fine line of the in/out range of incarceration. Hence a sentencing practice that appears consistent on the surface may in fact hide inconsistent treatment of offenders.

It is possible for numerical/narrative guidelines to be drawn up that attempt to provide a consistent outcome. For example, the Sentencing Council could draw up a hierarchy of reductions. It will be interesting to see how this could be achieved in a mathematical format. Would each offence, and band within an offence, have a set reduction for mitigating factors? For example, if the objective offence sentence is five years, the guidelines could provide for a six month reduction for being willing to attend a conference, a one year reduction for attending the conference and saying sorry, and, a two year reduction for attending the conference and agreeing to reparation or to attend rehabilitation courses. Or, will the Sentencing Council follow a percentage format, such as with an early guilty plea usually resulting in a 1/4 reduction in sentence? The percentages and maths could get quite complicated. Or, will the guidelines be even more limited by ruling, for example, that a restorative justice process is one manner in which an offender can show remorse, but that remorse is the only mitigating factor? The disadvantage of this approach is that the Government's underlying aim to improve public satisfaction with the criminal justice system is likely to be undermined by treating restorative justice processes as a standard mitigating factor. If offenders are seen to be treated leniently for attending conferences, this may result in increased numbers of offenders willing to undertake the process, but it may result in a reduction in the number of victims willing to attend. This is because once it is clear to victims that if they agree to attend a conference the offender will automatically get a lighter sentence, many victims may not want to attend.

On the other hand, the two-stage approach will also stifle innovation. It is arguable that under a two-stage sentencing approach to consistent sentencing, the conventional criminal justice paradigm will always hold sway because retribution for the objective offence will always be more important than anything the offender can do afterwards. An example of this is the only Court of Appeal ruling on restorative justice, R v Clotworthy.[114] This case is a good example of the tension that exists in the two different paradigms of justice. R v Clotworthy was a case of grievous bodily harm, decided prior to the Court of Appeal ruling in R v Taueki,[115] but following in a somewhat similar two-stage approach. The victim, Mr Cowan, was walking in Auckland with a friend. He was attacked by Mr Clotworthy in an apparently unprovoked act. The reasons for the attack were unclear, except it appeared alcohol and possible robbery were factors in the offending. The attack was very serious with Mr Cowan being stabbed six times with a large hunting knife. The most serious wound was only 6mm from his heart. He underwent emergency surgery and, as a result, received a further 27 cm scar on his back.[116] Before sentencing, Mr Cowan and Mr Clotworthy met in a restorative justice conference. Mr Cowan expressed the view that he had previously been to prison and he did not think that this 'had done him much good.' He did not want Mr Clotworthy to go to prison. Instead he wished Mr Clotworthy to pay reparation towards a sum of $27,000 that he required for cosmetic surgery.[117]

Mr Clotworthy offered to pay $25,000, a sum which was later revised to $15,000 when he was unable to obtain help from his own family. Mr Clotworthy had only one prior assault charge, occurring some eight years previously. He was in employment and had a stable relationship with two young children. He had not touched alcohol since the incident, which he did not remember much of due to his intoxicated state. The sentencing judge decided on a start point of three and half years, which he discounted to two years due to the outcomes of the conference. Under the legislation at the time, he was then able to suspend the sentence so that Mr Clotworthy would receive no custodial sentence. Mr Clotworthy was ordered to pay $5000 immediately (which he did) and the balance of $10,000 over one year (at $200 per week). In making his decision, the Judge referred to the following factors as being decisive: the cost of sending Mr Clotworthy to prison; the benefit to Mr Cowan of the reparation; the effect of imprisonment on Mr Clotworthy's family; the resolution of the matter in the eyes of Mr Cowan; the view that more would be achieved by keeping Mr Clotworthy out of prison; and, finally, the view that Mr Clotworthy was likely to contribute to society so that personal deterrence was not a serious concern.[118]

When the case came before the Court of Appeal, the Court followed the two-stage process which it later clarified in R v Taueki.[119] Looking at the objective offence and its elements, the Court considered that the aggravating features of the offence were the use of the hunting knife, the intoxication, the attempted robbery, and the life threatening injuries the victim sustained. This warranted a starting point of five to six years imprisonment because of public interest factors, namely, the need to deter others from such offending. Only once the objective starting point had been set could there be an offset for Mr Clotworthy's behaviour after the offence. His guilty plea and the outcome of the conference were considered worthy of a two year discount from sentence. The reparation of $5000 was upheld, but the Court felt the reparation order of $200 per week was unrealistic given Mr Clotworthy's income and the fact that a custodial sentence of three years was being imposed. Any such reparation, said the Court, would have to be post-sentence. In fact the only reparation ordered by the Court was the lump sum of $5000.[120]

There appeared no positive outcome for the community, the victim, or the offender, on the imposition of the custodial sentence. However, Mr Clotworthy was sent to prison because the Court of Appeal said the public interest in consistency and integrity in the justice system, as well as deterrence of others, were overriding factors. The victim did not receive his money, the taxpayer paid for Mr Clotworthy's imprisonment and, no doubt, a welfare benefit to support his wife and children. Mr Clotworthy lost his job, the country lost his taxes, and vulnerable children (the 'at risk' generation for future offending) lost their father to prison. The wider argument is, again, the paradigm argument. The conventional criminal justice paradigm is that a crime is violation of the state. The state violation must be treated more seriously than the victim's violation. In R v Clotworthy, Mr Cowan, the victim, also attended the Court of Appeal hearing and was allowed to address the Court. He reiterated his view that prison would achieve nothing for Mr Clotworthy or himself. The Court of Appeal, while commending his forgiveness, said that a wider dimension, the public interest, must come into the sentencing exercise, rather than it being just a simple consideration of the position as between the offender and the victim.[121]

Alternatives to Blunt Mitigation - The Canadian Experience

A possible alternative path for the Government and the Sentencing Council to take is to allow judges to sentence beyond the normal guidelines of sentencing in a targeted manner, that is, by drafting a guideline that allows for completely inconsistent outcomes but only when certain factors have been met. There is some precedent for this in Canada. Canada, in an effort to ameliorate systemic discrimination in the criminal justice system, has enacted legislation that allows sentencing judges to take into account special circumstances of aboriginal offenders and the cultural appropriateness of sentencing circles.[122] In R v Gladue[123] the Supreme Court of Canada said:

It is beyond question that aboriginal persons make up a disproportionate element of the penitentiary population, and s 718.2(e) then is intended to reduce the use of imprisonment where possible 'with particular attention to the circumstances of aboriginal offenders'.[124]

Sentencing circles first came to judicial notice in R v Moses, a ruling of the Territorial Court in Yukon.[125] The judge, Stuart J, on sentencing circuit for one day in the town of Mayo encountered the case of Mr Moses. He was a First Nation aboriginal who was described as follows:

His life has so far involved a vicious circle of criminal behaviour, alcohol abuse and deteriorating self-esteem and general psychological health which will likely lead to a worsening and perhaps tragic outcome if major interventions are not employed.[126]

Mr Moses had 43 prior criminal convictions, and had been found guilty of assaulting a police officer. Stuart J observed that Mr Moses had, for 10 years, travelled from alcohol abuse, to crime, and then to jail, each time emerging angrier, more dysfunctional, and more entrenched in a marginal existence of alcohol abuse and crime, which inevitably led back to jail.[127] The Judge noted that in these cases jail did not protect the public, as each time Mr Moses returned to Mayo more dangerous. Stuart J decided to adjourn sentencing for three weeks and draw together Mr Moses' family and First Nation leaders in Mayo to attend a sentencing meeting to decide what could help break Mr Moses' cycle of violence. Thirty people attended at court, and the court room was rearranged into a circle with every person having an equal right to speak. The result was a non-custodial sentence structured by a probation order in three distinct phases, with a court review after each phase. This first stage was 60 days reintegration with his family, the second stage was a two month residential alcohol programme, and the third phase was living in an alcohol free house with a relative whilst gaining work skills.

Stuart J had this to say about disparate sentences:

Public censure often focuses on the differences in sentences meted out for the same crime. There should be more, not fewer differences in sentences. If the reason for the differences stem from personal attitudes of judges, the inadequacy of information, an inability to appreciate the remedial impact of various sentencing options, an absence of commonly accepted objectives, or ignorance of the impact of crime on victims, then public concern is warranted. The reasons for the differences, not simply the differences themselves, determine whether the differences are laudable or condemnable (emphasis added).[128]

And with regard to sentencing circles, he said:

In a multicultural society, where gross inequities in opportunities, social resources, and social conditions abound, just sentencing cannot be monolithic or measured against any standard national 'typical sentence'. If the predominant objectives in sentencing are protection of the community, rehabilitation of the offender, minimizing adverse impacts on victims, and particularly greater community involvement, then even greater differences in sentencing for the same crime should be expected and welcomed. In at least two significant ways, the circle will accentuate differences in sentences for the same crime. The circle, by enhancing community participation, generates a richer range of sentencing options. Secondly, the circle by improving the quality and quantity of information provides the ability to refine and focus the use of sentencing options to meet the particular needs in each case.[129]

Stuart J was therefore saying that it was not disparity in sentencing which is a concern, but the reasons for disparity. Sentencing circles are now widely used in aboriginal communities in Canada. The practice is not a universal option for all offenders as is being attempted in New Zealand. The judge decides if a case is suitable for a sentencing circle based on whether there is a well defined, supportive community, the offender wants to change, and on whether the offender has pleaded guilty and accepted responsibility for the offence.[130] Victims may attend if they wish. Therefore, it is not an option for all aboriginal offenders. The Supreme Court of Canada has given a direction that sentences resulting from sentencing circles should only be overturned when it is deemed that the sentencing judge clearly imposed an unfit sentence.[131] In an example of this, the Newfoundland Court of Appeal has recently upheld a decision by an Aboriginal Sentencing Circle to sentence an offender to two years house arrest for a brutal sexual assault. The prosecution wanted a custodial sentence of six years. The offender had a lengthy history of violence, including sixteen prior assaults on his victim. At the time of the offending, he was on bail for another assault on her. He and the victim attended a sentencing circle with other Innu community members. The appeal Judge upheld the sentencing circle's findings,[132] citing the following facts as reasons for this: the offender had stopped drinking; the offender had not re-offended; and, the offender was now the principal caregiver for his children.[133]

With regard to the success of sentencing circles, Dutil JCQ, in R v Alaku, said it would be utopian to believe the offender will change his or her ways in every case. In his view, though, this did not mean sentencing circles should not be used. He felt that if an offender failed, that did not necessarily mean the circle failed. He noted that in Yukon there has been a 35% drop in crime over the period sentencing circles have been used.[134]

The main difference between sentencing circles in Canada and restorative justice processes in New Zealand is that in Canada the judge attends the sentencing circle. Practice differs from community to community in Canada, however it appears that the role of the judge is to listen to what has been said by the offender, the victim, and the community, as well as the crown prosecutors and defence lawyers. The judge then makes a decision on sentencing.[135]

The advantage of the judge being present at the restorative justice process is not only can he or she at first hand 'judge' whether the offender's remorse and offers to amend are genuine as a mitigating factor, he or she can go further and use the conference to better assess all the factors of the offence. A restorative justice process typically takes the participants back to the day of the offence and allows the victim to tell the offender what the impact of the offending on him or her has been, both at the time of the offence and in the aftermath. The offender is encouraged to talk about the offence and answer any questions the victim has about the offender's motivation for the offence and the details of the offence. The offender is given an opportunity to address the victim and apologise for his or her wrongdoing. After the victim's and offender's supporters have also spoken about the impact of the offence, the conference moves into the outcome phase of the conference. In a sentencing circle, members of the community are present to suggest rehabilitation plans. In the pre-sentencing Court Referred Restorative Justice Pilot that ran in four District Courts in New Zealand, the 'community' was not a formal part of the proceedings.[136] Therefore it was left to the victim and his or her supporters to request what they would like the offender to do to make amends. In some cases, such as R v Clotworthy,[137] the victim is very clear about what he or she feels is an appropriate outcome but other victims may not wish to do this.

If judges attended adult restorative justice processes in New Zealand and played a role such as in Canadian sentencing circles, it is arguable that this would be a significant change in role for them. At present judges are presented with arguments in an adversarial hearing from both defence counsel and the crown prosecutor. They listen to both sides and make a decision. By attending the restorative justice conference and participating as an equal member, it is arguable that judges would take on a more inquisitorial role. In Canada it appears that the sentencing circle incorporates both elements of a restorative justice process and an adversarial sentencing hearing, that is, the crown prosecutor is present and represents what the state believe is a proper sentence along with defence counsel, the victim, the offender, and the community. A judge listens to all and then proceeds to sentence.

In Canada it appears sentencing circles have been developed exclusively to combat excessive incarceration of aboriginals whom, while only making up three percent of the population, make up 16 percent of the prison population.[138] New Zealand has a similar problem with the Maori population making up 12 per cent of the population but over 50 percent of the prison population. The Canadian approach may be a path for the Government and the Sentencing Council to consider. As with the reforms in the United States, the Canadian reform has clear legislative guidance. In Canada this allows for alternatives to prison for a targeted group. Using restorative justice processes as a universal way of reducing prison populations seems beset with problems. As an alternative to universalism, it would be possible for the Government, through the Sentencing Council, to decide to target a group of offenders it intends to treat differently. This is already what happens with youth offenders. It is to be noted that the proposed Sentencing Council guidelines are not to apply to youth offenders. It would be possible for the Sentencing Council to draw up guidelines that said, for example, that if both the offender and victim are willing, and the offender has pleaded guilty, and there is a well defined supportive community willing to help the offender break his or her cycle of behaviour, a restorative justice conference could be held and sentencing would form part of this forum. For this to work it would be important to have a full merger of both paradigms of justice, that is, the state, represented by the judge, defence and crown counsel, and the community, by way of family or wider community support for both the victim and the offender. The Sentencing Council guidelines could say that only when these factors are present can the sentencing judge depart from the normal guidelines on sentencing and then only if the conference had successful and comparable outcomes.

The downfall of such a system would be that it could also reduce the potential of the restorative justice process. If it is accepted that the major aim of restorative justice is emotional healing for victim and offender, turning the conference into an expansive sentencing forum may well detract from the dynamics between the offender and victim. This is because, despite the best will in the world, such a conference will be offender focused.

Alternatives to Blunt Mitigation - Restorative Justice Offered Post-Sentencing

As stated previously, the writer believes that a number of victims and offenders wish to meet and discuss the impact of the offence without any ulterior motive, that is, they are intrinsically motivated to do this. Annually a number of prisoners contact restorative justice providers, wishing to meet with their victims. There are a number of restorative justice programmes that operate in the prisons, and the Government proposes to extend this on a two year trial.[139] While it is possible some prisoners may be motivated by the fact they believe a conference will help their application for parole, many prisoners do this despite being years away from a Parole Board hearing. One way of avoiding the problems with the intersection of restorative justice and conventional criminal justice at sentencing would be to have conferences post-sentence. The disadvantage of this is that the victim and the community do not have input into sentencing, and fewer offenders may be attracted to the process. The advantage of this is it avoids the problem of either treating offenders inconsistently, or reducing restorative justice to a blunt mitigating factor. The state could still provide for this service as a service for both victims and offenders to heal from the impact of crime

V. Conclusion

The reform of sentencing practice introduced in the Criminal Justice Bill attempts to move sentencing practice in New Zealand to a mid-point on a sentencing continuum between absolute consistency and absolute discretion. The difficulty the proposed Sentencing Council faces is that New Zealand's sentencing laws offer a 'cafeteria' of purposes with no one primary purpose of sentencing. This difficulty flows on to the lack of direction as to the weight that aggravating and mitigating factors should receive and how they tie into the purposes of sentencing. While the purposes of sentencing pull in different directions, so does the Government's underlying reasons for sentencing reform. The Government, on one hand, wishes to reduce prison populations and be able to forecast prison populations while, at the same time, appease the public call for 'truth in sentencing' and hand out severe sentences for serious and persistent offenders. All of this means that the Sentencing Council will find it difficult to decide on what to base its guidelines as it is operating within a confused sentencing picture. It is arguable that the Sentencing Council will find it difficult to produce the consistent approach the Government wants without resorting to the undue rigidity of the United States' guidelines. This is because, as the critique of the two-stage approach to be adopted by the Sentencing Council suggests, the mid-point on the continuum may only give an illusion of objectivity and hence inconsistency will continue.

The impact of this on restorative justice processes is that the full potential of the process will not be realised if it is to be treated as a mitigating factor in a two-stage sentencing practice. As a standard mitigating factor, the process becomes a blunt tool which may be seen by the public as treating offenders leniently and thus will result in fewer victims wishing to attend. It may also attract offenders who wish to use the process for their own ends. As a standard mitigating factor, the outcomes agreed by offenders and victims will only be taken seriously if they coincide with the state's view of sentencing. Therefore any innovative outcomes will be disregarded in pursuit of consistency. Fundamentally, therefore, the Government's initiatives are incompatible if it wishes to take restorative justice seriously. The Government and the Sentencing Council could resolve this by allowing judges discretion to sentence outside the guidelines when successful restorative justice processes have occurred. This will acknowledge that restorative justice processes do not have universal application whilst retaining the degree of discretion required to allow for innovative approaches in a targeted manner. This will mean the Government sacrificing a degree of consistency, but, in return, the Government may reap the reward of taking restorative justice processes seriously. Alternatively, the Government could decide to allow restorative justice processes to develop in parallel to the conventional criminal justice system and remove their intersection at sentencing.

Kathy Basire LLB(Hons), Restorative Justice Facilitator (Turnaround Marlborough Blenheim 2001, Restorative Justice Services Christchurch 2002-06). Kathy is currently a Research Clerk for Raymond Donnelly & Co, Crown Solicitors Office, Christchurch.


[1] Law Commission, R 94, Sentencing Guidelines andParole Reforms (2006).

[2] Ibid 9-10.

[3] Ministry of Justice Fact Sheet, Expanding Restorative Justice: <http://www.justice.govt.nz/effective_interventions/fact_sheets/expanding-restorative-justice.asp> .

[4] Law Commission, above n 1, 38.

[5] Ibid 29.

[6] Ibid 9-10.

[7] Ibid 19.

[8] Ibid 29.

[9] A Ashworth, Sentencing and Criminal Justice (3rd ed, 2000) 62.

[10] Law Commission, above n 1, 356.

[11] Ibid 10.

[12] Ibid 17.

[13] Ibid 37.

[14] Ibid 15.

[15] Ibid 10.

[16] Ibid 15.

[17] Ibid 11.

[18] Ministry of Justice, above n 3.

[19] H Zehr, cited in Ministry of Justice, Restorative Justice in New Zealand: Best Practice (2004) 7.

[20] See, eg, R v Clotworthy (1998) 15 CRNZ 651, discussed in the third part of this paper.

[21] Law Commission, above n 1, 38.

[22] Ibid.

[23] See, eg, E McLaughlin, R Fergusson, G Hughes, L Westmarland, 'Introduction: Justice in the Round — Contextualizing Restorative Justice' in Restorative Justice Critical Issues (2003) 2.

[24] Ibid 10.

[25] See, eg, the three latest evaluations of restorative justice in New Zealand: S Triggs, Evaluation of the Court-Referred Restorative Justice Conference Pilot (2005); J Paulin, V Kingi, B Lash, Wanganui Community Managed Restorative Justice Programme: An Evaluation (2005); J Paulin, V Kingi, T Huirama, B Lash, Rotorua Second Chance Restorative Justice Programme: An Evaluation (2005).

[26] H Zehr, Chan

[27] Ibid 181.

[28] Ibid 178-179.

[29] Ibid 179.

[30] Ibid 178-179.

[31] Eighty percent of youth offenders in New Zealand are dealt with by way of Family Group Conferences. Some communities have Community Panel Diversion Programmes, which divert adult offenders away from the formal court process: see, eg, the evaluation of the Wanganui Community Managed Restorative Justice Programme, above n 25.

[32] See, also, s 10 of the SentencingAct 2002, as to the taking into account of offers of reparation and apologies.

[33] M Thorburn, 'The Impossible Dreams and Modest Reality of Restorative Justice' (2005) 30 Queen's Law Journal 863, 870.

[34] Ibid.

[35] Ibid 881.

[36] See, eg, the story of 'Sam' in J Braithwaite, 'Restorative Justice and a Better Future' in E McLauglin, R Fergusson, G Hughes & L Westmarland (eds), Restorative Justice — Critical Issues (2003).

[37] K Daly, 'The Limits of Restorative Justice' in D Sullivan & L Tifft, Handbook of Restorative Justice: A Global Perspective (forthcoming) 8-9.

[38] Triggs, above n 25, 218.

[39] All evaluations currently show a slight drop in re-offending.

[40] Triggs, above n 25, 91.

[41] For example Braithwaite, above n 36, 56; Zehr, above n 28.

[42] See, eg, A Ashworth, 'Is Restorative Justice the Way Forward for Criminal Justice?' in E McLauglin et al, above n 36, 177; K Daly, 'Restorative Justice: The Real Story' in E McLauglin et al, above n 36.

[43] Ashworth, above n 10, 62, 354.

[44] Sentencing Act 2002, s 8(j).

[45] Law Commission, above n 1, 37.

[46] Markarian v R [2005] HCA 25; (2005) 215 ALR 213, 243.

[47] Ashworth, above n 10, 132.

[48] Ibid 133.

[49] See, eg, the discussion on an early guilty plea: ibid 141-149.

[50] United States Sentencing Commission, Guideline Manual (2006) 381: <http://www.ussc.gov/guidelin.htm> .

[51] Ibid 54.

[52] Ibid 351. A one point deduction only applies for early guilty plea if the offence seriousness level is over 16 and the offender has qualified for an acceptance of responsibility deduction.

[53] Ibid 354.

[54] Ibid 381.

[55] See, eg, United States v Booker; United States v Fanfan, [2005] USSC 593; 543 US 220 (2005). The Supreme Court has also ruled that the mandatory nature of guideline is unconstitutional, an argument not able to be explored in this paper.

[56] Law Commission, above n 1, 69.

[57] Ashworth, above n 10, 62.

[58] Law Commission, above n 1, 37.

[59] [2005] NZCA 174; [2005] 3 NZLR 372.

[60] Ibid 376.

[61] Ibid 386.

[62] Ibid 381-383.

[63] Ibid 384-385.

[64] Ibid 383.

[65] Ibid387,by referring to ss 8and 9of the Sentencing Act 2002,and R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

[66] [2005] HCA 25; (2005) 215 ALR 213, 223.

[67] Ibid 224.

[68] Ibid 223, quoting R v Wong (2001) 185ALR233.

[69] Ibid 224.

[70] Ibid 227-228.

[71] Ibid 227.

[72] Ibid.

[73] Ibid 229.

[74] Law Commission, above n 1, 21.

[75] Markarian v R [2005] HCA 25; (2005) 215 ALR 213, 227.

[76] Triggs, above n 25, 91.

[77] Personal comment by crown prosecutor, Chris Lange, Raymond Donnelly, Christchurch.

[78] The widespread view of restorative justice practitioners at Restorative Justice Services, 79 Christchurch.

[79] This is the experience of restorative justice practitioners, including the writer.

[80] See, eg, G Pavlich, 'Deconstructing Restoration: the promise of restorative justice' in E Weitekamp & H Kerner Devon (eds), Restorative Justice — Theoretical Foundations (2002) 27.

[81] Restorative justice models differ from direct victim/offender mediation through to full community participation. The Pilot showed that often family or community support was not present.

[82] See the evaluations listed at above n 25.

[83] United States Sentencing Commission, above n 50, 9.

[84] Ibid 10.

[85] Ibid 427-430.

[86] Law Commission, above n 1, 37-38.

[87] The Ministry of Justice funds 31 provider groups: <http://www.courts.govt.nz/cpu/restorative-justice/restorative. html> .

[88] A number of reported and unreported cases can be found on the Brookers and LexisNexis websites, as well as in two summary papers: Thorburn J, Observing the Application of Restorative Justice in Courts of New Zealand (A Brief Survey of Cases over 10 Years) Judge. Thorburn@justice.govt.nz; Y Shy, Restorative Justice Jurisprudence in New Zealand (1998-2005), available from the same source.

[89] Personal comment by a Supreme Court Judge.

[90] [2006] DCR 559.

[91] Ibid [19].

[92] However, in Jan v Police (unreported, High Court, Auckland, CRI-2005-404-148, 27 May 2005, Baragwanath J), on appeal the Judge isolated the restorative justice conference as a factor and gave a seven month reduction in sentence for the conference

[93] Triggs, above n 25, 204.

[94] (unreported, High Court, Timaru, CRI-2006-076-1076, 12 July 2006, Fogarty J).

[95] Ibid [1].

[96] (unreported, High Court, New Plymouth, T 2/03, 10 July 2003, Paterson J).

[97] Ibid [16].

[98] Ibid[18].Ibid [18].

[99] (unreported, High Court, Dunedin, AP 22/02, 12 September 2002, Hansen, J).

[100] Ibid [5].

[101] Ibid [6], [9].

[102] [2006] DCR 135.

[103] Ibid [18].

[104] Ibid [19].

[105] Ibid [20]-[21].

[106] Ibid [29] [30].

[107] (unreported, Whangarei District Court, CRN 3088023903-13, 31 March 2004, Judge Everitt).

[108] Ibid [6].

[109] Ibid.

[110] [2006] DCR128.

[111] Ibid [26].

[112] Ibid.

[113] Ibid [34].

[114] (1998) 15 CRNZ 651.

[115] [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[116] (1998) 15 CRNZ 651.

[117] Ibid 654-655.

[118] Ibid 655.

[119] [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[120] (1998) 15 CRNZ 651, 660-661.

[121] Ibid 659.

[122] Canadian Criminal Code, s 718.2(e).

[123] [1999] 1 SCR 688.

[124] Ibid [2].

[125] (1992) 71 CCC (3d) 347.

[126] Ibid [18].

[127] Ibid [24].

[128] Ibid [58].

[129] Ibid [59].

[130] R v Morin [1995] SJ 457, 69-70.

[131] M Spiteri, Sentencing Circles for Aboriginal Offenders in Canada: Furthering the idea of Aboriginal Justice in Western Justice Framework <http://www.sfu.ca/crj/fulltext/spiteri.pdf> .

[132] R v JJ(2004) 192 CCC (3d) 30.

[133] (1994) 112 DLR (4th) 732.

[134] Ibid [74] - [76].

[135] Spiteri, above n 131, 64.

[136] However in the Community Panel Diversion programmes, the 'community' is represented by a panel.

[137] (1998) 15 CRNZ 651 (CA).

[138] R v Gladue [1999] 1 SCR688, [58],

[139] Ministry of Justice, above n 3.


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