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Restorative Justice

We feel that there is a place for Restorative Justice in the Justice System. However there are some caveats.

1. It should be victim driven, rather than offender driven, and focus on the offender having an obligation to their victim to try and repair the harm done by their crime.
2. It should always take place post-sentence rather than pre-sentence, and therefore will not be taken into consideration as part of sentencing, and cannot be rushed through prior to sentencing just to earn a sentence reduction.
3. Restorative Justice meetings are combined with and only occur in conjunction with rehabilitation programmes
4. It has no influence on parole hearings - no reports are`submitted to the parole board regarding restorative justice meeting outcomes when considering release.
5. No person with a criminal record should work in Restorative Justice as a facilitator or in any other voluntary or paid capacity. Everybody must be screened and full Police checks carried out, along with mandatory training.

All of the above are characteristics of the very successful and highly regarded Restorative Justice system in New South Wales, which has not been beset with some of the problems experienced here in NZ. For instance this recent case from the Dominion Post in February 2006;

A Tauranga man who beat a teenage driver with a metal baton in a road rage incident has had his sentencing delayed because the victim refused to attend a restorative justice meeting. Darryn Michael Horton, 37, sickness beneficiary, has pleaded guilty in Tauranga District Court to assault with a blunt instrument, possession of an offensive weapon and dangerous driving. He was due to be sentenced yesterday, but his victim, Johnathan Harris, 19, has refused to meet Horton at a restorative justice conference to discuss the incident. Horton intended to use the meeting to apologise to Harris and try to escape a jail term.

The difficulties of pre-sentencing restorative justice were also noted by Judge Fred McElrea in a paper presented at the 11th Annual Restorative Justice conference in September 2005
Of course the role of the victim is at the heart of restorative justice. The constant tussle has been to overcome the inherent bias towards offender's interests in the mainstream system....However, so long as restorative justice is tied to sentencing, it cannot be victim driven.

We believe that it should only apply in situations where it is possible for whatever the victim to have restored to them whatever they may have lost as a result of the offence. For instances such as damage to a car or letterbox, or theft of a bicycle or a DVD player, restoration of the victims losses are straightforward enough. But obviously no person or agency on this Earth can restore life, nor can the major psychological damage resulting from offences such as rape or a serious assault be easily undone.

For this reason we believe that restorative justice is inappropriate for violent offences, as the losses are primarily those of peace of mind and confidence in being able to go about one's lawful business safely, rather than direct financial losses. There are often also losses that are of a medical nature, also unlikely to be able to be restored by an offender. Only if a victim explicitly requests restorative justice should it ever be applied to violent offenders. (And this does sometimes happen!)

The situation often also arises where the offender lacks the will to restore the victim's losses. They may be able to do so, but do not want to. We have been advised of some cases. Where the offender does not care about the victim's wellbeing, then restorative justice cannot take place, and will only give the offender further opportunities to "rub it in" or otherwise harm the victim. Putting the victim through a restorative justice process in this situation will be extremely counter-productive.

Similarly, if the victim does not want to be involved in the restorative justice process, then they should not have to do so. There needs to be the will to go through with it from both parties, otherwise it will simply be a waste of time and energy for all concerned.