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Journal of South Pacific Law |
Article 4 of Volume 3, 1999
RESTORATIVE JUSTICE AND THE NEW ZEALAND COURT OF APPEAL’S
DECISION IN THE CLOTWORTHY CASE
By Helen Bowen and Terri Thompson*
In April 1998, Judge Thorburn in the Auckland District Court sentenced Mr Clotworthy, who had stabbed his victim in an unprovoked attack, to two years suspended sentence together with $15,000 reparation and 200 hours community service. This was following favourable consideration of restorative justice practices the victim and offender had participated in.
However the New Zealand Court of Appeal, substituted this sentence for a custodial sentence of three years and $5,000 reparation. The court reasoned the public interest in deterrence of violent offending outweighed restorative justice principles in the sentencing of this case.
This paper discusses the Court of Appeal’s examination of restorative justice in R v Clotworthy,1 identifies limitations in the Court of Appeal’s analysis, and seeks to expand the focus to a wider examination of restorative justice principles including possible benefits for all people of New Zealand.
Given that Maori figure disproportionately in the crime and incarceration rates,2 their experience is used as an example of how adoption of restorative justice principles might make the law accessible, and therefore more meaningful, for different cultures within New Zealand.
Other jurisdictions, including Canada, have recognised the over-representation of aboriginal offenders in penal institutions and have amended their legislation to include restorative principles with the hope of reducing aboriginal prison numbers. Is amendment required to our criminal justice system?
The victim was walking past the offender on an Auckland street in the early hours of the morning. Unprovoked, the intoxicated offender attacked the victim and demanded money. He then proceeded to slash the victim with a knife, cutting his face and stabbing him in the chest and stomach. The victim received six stab wounds and underwent surgery. This left permanent scarring. Judge Thorburn in the District Court described the offender’s behaviour as ‘utterly bizarre, defying explanation, understanding or any intelligent appreciation.’3
The offender pleaded guilty. Sentencing was delayed while a restorative justice conference was held to ascertain reparation possibilities for the purposes of s11 Criminal Justice Act 1985.4
The conference resulted in the victim accepting the offender’s sincere apology. The victim wanted cosmetic surgery for the severe scarring. The offender offered to assist with the cost. Consequently the offender agreed to pay $25,000 to the victim for surgery by way of reparation. The victim was adamant the offender should not go to jail.
In the District Court, Judge Thorburn ordered $15,000 as reparation for the victim. He further imposed a suspended sentence of 2 years together with 200 hours community service. The principles applied by the Judge in sentencing display an awareness of the principles of restorative justice and the means of giving effect to them.
It is worth reviewing Judge Thorburn’s sentencing notes for the flavour of restorative justice and then considering the Court of Appeal’s acknowledgement that ‘the restorative aspects can have, as here, a significant impact on the length of the term of imprisonment,’ a statement affirming Judge Thorburn’s restorative approach.5
The judge chose to begin with an orthodox approach to sentencing in establishing the starting sentence. However in determining where the ‘final resting place can be on a best case scenario for the prisoner,’ he went on to consider restorative justice factors, the first being the victim’s views:6
[I]n a rare and almost unbelievable communication from the victim, it is clear that he does not see any benefit for society, himself or for the prisoner in a sentence of imprisonment...The prisoner has had the privilege of meeting a human being in Mr [C] who must surely be able to be described as one of the finest that he can expect to meet in his life. The victim does not see any benefit in a festering agenda of vengeance or retribution in his heart against the prisoner.
The Judge acknowledged the victim cannot determine the sentence. However, true to restorative justice principles the victim’s views played a part in the ‘justice’ of the sentence:7
[F]or the life of Mr [C], the victim, there is, I think, more to be achieved in terms of justice from his perception by keeping the prisoner at large...The court’s role goes beyond that of the wishes of a victim, but this is one case where in my view some fairly firm and noticeable emphasis on the victim’s attitude and wishes are permissible.
Having considered the factors concerning the victim, the Judge went on to consider the restorative elements of the offender’s behaviour that were relevant to sentencing. The first was the guilty plea, the important trigger for restorative justice processes. Judge Thorburn proceeded to distinguish the character of the offender from offenders in other similar cases to justify his application of restorative justice in this case:8
[I] am prepared to describe him apart from this particular shameful matter, as a good citizen. The overwhelming preponderance of cases in which the sentences for wounding with intent to cause grievous bodily harm have been addressed, have had before the court people of horrible prior criminal history, who have demonstrated an entrenched trait of lawlessness. ...The deterrent aspect of sentencing obviously is a major and predominant factor in dealing with such offenders. I suggest that for the prisoner before this court, that issue of deterrence really is almost non existent.
The judge considered in detail the deterrent aspect of sentencing (see below). He then considered the restorative justice report, and his comments on this reflect the aims of restorative justice:9
[T]he Restorative Justice report makes it very clear that they had intimate and personal communications which could well have achieved more by way of healing of attitudes than anything else.
In accepting the recommendation of reparation, Judge Thorburn commented that this was the best that could be expected in good faith from a man with limited means. Finally, in adopting a utilitarian approach of maximising benefits, the judge undertook a holistic view of the realities presented by the various factors.10
[T]aking into account too the attitude of the victim, one asks the question - what is to be achieved in this particular case by a sentence of imprisonment to commence today? Firstly, there would be the debt to the taxpayer of somewhere between $40-$90,000 per year...Secondly, there would be literally no tangible or realistic benefit to the victim personally - no actual justice. Thirdly, there would be havoc wreaked upon the prisoner’s small,...fragile family...Fourthly, there would be little and probably no prospect of any further reparation beyond the $5,000 payable today.
If there is no serious concern that there should be deterrence personally for the prisoner, then the only purpose served in this particular case by an unsuspended sentence of imprisonment, would be to satisfy that perceived community need for the court to be punitive. [emphasis added].
...If the prisoner was a person who had demonstrated wild and obvious traits of lawlessness in his life, irresponsibility in his personal relationships and was generally making little contribution to the community and not likely to in the future, things would be different...The community ...can relax without worrying about unresolved issues of justice as between the parties...there is nothing really to be achieved in the community’s interests by sentencing in any other way than that which has been suggested after the Restorative Justice conference.
The Solicitor-General appealed against the sentence imposed by the District Court on the grounds that the offending was too serious for a suspended sentence. The Crown submitted the minimum sentence that could be imposed was one of 3 ½ years imprisonment because the serious nature of the offence was governed by s 5, Criminal Justice Act 1985. This eliminated
the prospect of suspension as it was beyond the maximum of two years which can be suspended.
Section 5 of the Criminal Justice Act 1995 requires a full time custodial sentence to be imposed where serious violence is used in the offence, unless the sentencing Judge is satisfied that because of the special circumstances of the offence, the offender should not be so sentenced.
The Court of Appeal accepted the Crown’s contention. However the court made significant statements regarding restorative justice.11
[W]e would not want this judgment to be seen as expressing any general opposition to the concept of restorative justice (essentially the policies behind ss11 and 12 of the Criminal Justice Act 1985). Those policies must, however, be balanced against other sentencing policies, particularly in this case those inherent in s5, dealing with cases of serious violence. Which aspect should predominate will depend on an assessment of where the balance should lie in the individual case. Even if the balance is found, as in this case, to lie in favour of s5 policies, the restorative aspects can have, as here, a significant impact on the length of the term of imprisonment which the Court is directed to impose. They find their place in the ultimate outcome in that way.
The Court considered the appropriate starting point for the case was 5 years imprisonment. However in the balancing exercise, this was reduced to 3 years in conjunction with $5,000 reparation.
Justice Tipping for the Court of Appeal endorsed restorative justice policies by affirming them as part of the balancing exercise in sentencing. The other significant policy factor considered by the Court was that of "public interest" in deterrence of others. This public interest was found to outweigh the restorative justice elements.
While the judgment is positive affirmation of restorative justice, the Court’s analysis of restorative justice must be seen as superficial. By focusing narrowly on reparation, the Court of Appeal failed to seize the opportunity to fully consider restorative justice principles. It is acknowledged the grounds of the appeal identified reparation as the essential aspect of this particular case. However, in order to effectively consider restorative justice in the balancing exercise, restorative justice must necessarily be considered in its entirety. Restorative justice is a holistic process where each element plays an essential role in achieving its policies.12
The Court of Appeal may have avoided an in depth analysis of restorative justice principles because the term describes different concepts of processes, programmes and philosophy leading to confusion about the principles, goals and intentions of restorative justice.13 Their Honours would have found the task easier if they had viewed restorative justice as a tool for examining crime and the appropriate response to crime, rather than focusing just on reparation.
Extensive literature focuses on the characteristics of restorative justice.14 The resulting central philosophy has three fundamental propositions:15
The propositions are better illustrated through Howard Zehr’s restorative lens of justice. Thus crime violates, harms people and relationships in relational terms. The aim of justice is to identify the obligations created from the violation, meet the needs of individuals and the community, to promote healing. Consequently the process of repairing damage involves victims, offenders and the community in identifying obligations, needs and solutions, through maximising the exchange of information by dialogue and mutual agreement.16
Restorative justice recognises crime harms victims, offenders and communities. Hence restorative justice seeks to give each party an important role in developing ways to ‘restore’ or ‘repair’ the damage.17 Viewing restorative justice in this way identifies how narrow the Court of Appeal’s reasoning was in only focusing on the reparation aspect of restorative justice. Had the Court of Appeal analysed the wider aspects, their balance and interpretation of the public interest in deterrence may have differed.
The divergence between Judge Thorburn and the Court of Appeal arose out of the Courts’ differing interpretation of deterrence involved in sentencing policies. In the District Court Judge Thorburn assessed deterrence on the circumstances of the case.18
[T]he sending of a deterrent message to the community in order to meet a conceptual idea of deterrence at large rather than to the individual I have thought about. I wonder if the community at large would really have any sense of betrayal or repugnance if a significant discount was applied in this case where the prisoner and his victim might appear, to all intents and purposes, to be able to say they have nothing unresolved between them anymore.
Here, Judge Thorburn identifies two elements to deterrence:
The rationale of Judge Thorburn on deterrence is consistent with other critiques of the effectiveness of deterrence as a major sentencing principle.19
[R]estorative justice proponents doubt that deterrent sentences achieve their purpose. Intending offenders, presumed to have learned of such sentences, need to have them uppermost in their minds at the moment they are about to offend. While law-abiding citizens who read the papers might be so deterred, there is no evidence offenders are (crime is on the rise)...The court speaks its deterrent language on our behalf. In fear for our security, we assume the court is right. Or do we?
[We] don’t. What is "the public interest in deterrence?" It is the community’s interest in its own safety. That is the public interest the Court is talking about ....community safety. The question is, do harsher sentences deter others and make the community safer? The answer seems to be no.20
[W]hile it is reasonable to assume that the very existence of the criminal justice system has some deterrent value, there is little evidence to support the view that increasing the level of sentences will deter the individual offender or would-be-offenders in general.21
This contrasts sharply with the approach adopted by the Court of Appeal. Their honour’s consideration of deterrence was limited to the public interest to deter others from such serious offending for public safety reasons.22 Analysis of the personal deterrent element is noticeable in its absence from the Court of Appeal reasoning on deterrence, even though it was put before the court. The Court chose instead to focus on the public aspect of deterrence.23
[I]t must be said, however, that a wider dimension must come into the sentencing exercise than simply the position as between victim and offender. The public interest in ... deterrence of others are [sic] factors of major importance.
The court’s rationale displays an assumption that deterrence of the community at large is only achievable by a custodial sentence and restorative justice does not involve this form of deterrence. One has to question the validity of this assumption. The restorative plan proposed carried with it a considerable financial burden on Mr Clotworthy. Others might be deterred from having to carry this burden.
[B]ut if general deterrence is more illusory than real, personal deterrence is not. A harsh sentence can deter the incorrigible violent offender by locking him away from the community. Such a sentence is not necessary in the case of a basically law-abiding citizen who offends, however spectacularly, once or infrequently. Such a person, like Mr Clotworthy, by experiencing his victim’s pain in the restorative justice conference, is deterred by this experience. By an order to pay substantial reparation, he is further deterred......by the monetary imposition, and then, weekly, by the reminder automatic bank payments will be of the victim’s pain and his personal responsibility for it. Restorative Justice processes thus provide an effective personal deterrence. An offender has been identified and deterred. Restorative Justice has made the community safer, and, equally importantly, has healed a victim’s pain and physical wounds.24
The Court of Appeal’s substitution of a deterrent custodial sentence effectively subordinates restorative justice policy of repairing harm to the victim and the community in favour of entrenched Westernised criminal justice concepts of retribution, deterrence, adversarial concepts of guilt and innocence.
The Court’s adoption of the role of gatekeeper of public opinion in ascertaining policy functions of sentencing echoes a sense of unreality. In Clotworthy the victim and offender devised a restorative justice plan that they viewed as meeting the needs of all concerned. The adoption of this plan in the District Court, with minor modification, acknowledged the concerns of all parties. This legitimised the reasonableness of the outcome. In doing so the District Court impliedly recognised the deficiencies in the traditional criminal justice system in meeting the needs of the victim and community.
The Court of Appeal, however, succeeded in relegating the victim back to the periphery of the criminal justice system where victims have been since the implementation of the Westernised Criminal Justice System into New Zealand.
It is important to note that the defendant and the victim in this case, were pakeha. Nonetheless, the restorative justice aspects of the case have consequences for all members of society, irrespective of their cultural origins.
It is submitted there are two important aspects of the decision indirectly affecting reform of criminal justice system, for the benefit of victims, offenders and their communities;
The legitimisation of restorative justice policies creates an avenue to encompass different traditional restorative practices.25 A restorative justice conference conducted to hear from all parties affected by an incident and helping to heal the victim, whanau26 and offender, will ultimately be a consideration in sentencing. This effect can be seen in the implementation of New Zealand’s youth justice system.27
Whether this is sufficient to meet different cultural needs, brings us to the second aspect of Clotworthy. The Court’s role in assessing the concerns of the community with respect to sentencing, identifies a deficiency in that role. Assumptions are made about public interest which fail to recognise the different cultural groups within the community. On the other hand, the community, as a whole, are expected to accept the Court’s representation of public interest. Arguably, the Court’s adoption of a public interest in traditional retributive justice fails to account for increasing dissatisfaction with this form of justice. Judge F. W. M. McElrea gives an insightful comment on the dissatisfaction with retributive justice:28
[It] is my view that criminal justice has been divorced from the community for far too long. Justice has come to be seen as a contest between State and the defendant. Largely ignored is the forgotten party, the victim, and the community to which they both belong. Justice should be something which we claim for ourselves and strive to enhance, but at present the ordinary person feels little sense of ownership of justice. It is seen as a legalistic system of rules governing this State v Defendant contest. As a result there is little incentive for anyone to take responsibility for the offending itself or for putting right the wrong.
Dissatisfaction is particularly prevalent within Maori communities. This is justified when one considers the alarming number of Maori within our custodial institutions.29 The Court must recognise this dissatisfaction when it purports to state what is in the public interest on our behalf. Recognition is beginning to occur within the lower courts. However, until this recognition is achieved at the higher level, reform of the criminal justice system to meet the concerns of all community members are likely to remain superficial.
It is interesting to reflect on a restorative justice conference held for four Maori offenders in 1995. This case concerned aggravated assault against two off-duty police officers. A series of whanau hui30 were held on the marae31 and a report forwarded to the Court.
The mother of one of the offenders said she deplored and was visibly shamed by their conduct. What they had done, she said whether they chose to recognise it or not, was to jeopardise the mana32 of their marae. She spoke of the whakama33 for the whanau, hapu34 and iwi.35 That shame would remain, she said, with or without prison. It was a shame that only the young men could erase. She sought the opportunity to have them take responsibility for their shameful and senseless behaviour. She acknowledged their past offending and that the marae forces should have been mobilised long before. After release from prison, the offenders returned to the marae where a further restorative justice hui36 was held. The whakama was released in a ceremony and the kaumatua37 acknowledged not taking responsibility in the past and promised his support. The offenders were re-integrated back into their community and continue to be supported and strengthened by this.38
Te Whanau Awhina39 is a successful diversion programme in the criminal justice system which diverts Maori offenders to either marae-based programmes or programmes that cater for Maori clients. This programme is funded by the Crime Prevention Unit in partnership with Te Whanau Awhina employees.
The Court of Appeal in New Zealand Maori Council v A-G40 issued a strong statement on the application of the Treaty of Waitangi. The principles of the Treaty are to be applied, not the literal words, to give effect to the Treaty. What matters is the spirit of the Treaty not the differences in interpretation. Consequently the Treaty signifies a partnership between the races. The case centered on issues of Maori land claim. However the Court recognised contemporary obligations of Treaty partners where; ‘ Now the emphasis is much more on the need to preserve Maoritanga,41 Maori land and communal life, a distinctive Maori identity.’42
Adopting the approach of the Court of Appeal, arguably the obligation of the Crown to act within the principles of the Treaty encompasses facilitating the right to self-determination within criminal justice for Maori.
Tino rangatiratanga in Article II of the Treaty of Waitangi has been interpreted as meaning the unqualified exercise of chieftanship which Maori retained over their lands, villages and taonga.43 Taonga is translated as treasures or anything highly prized, for example Maori language and culture. Part of the culture is the Maori system of custom and processes that ensure the protection of individuals, the stability of social life and the integrity of the collective group.44
Progressively since the signing of the Treaty the collective cultural infrastructures of Iwi and Hapu have given way to the Western system of justice. Consequently Iwi and Hapu social and political customary practices for governance based on justice or fairness have floundered in the 20th Century. The result is there has been a gradual silencing of Maori justice through colonisation.45
The Treaty and the constitution are indivisible and provide the basic principles of governance. The need for compliance with Treaty principles is something which the legislature, executive and judiciary are aware. The fact that Maori rights are part of the laws of New Zealand of which the judiciary are sworn to uphold requires the Court to develop alternatives to criminal justice policies that meet Maori customary rights.46 Recognising individual rights and democratic processes in relation to indigenous issues surrounding criminal justice will not be enough. The right of indigenous people to partake in the criminal justice system according to their customary practices requires acceptance that justice can be served from more than one perspective. Restorative justice provides one alternative. While it is not solely a Maori system of justice, restorative justice provides a complementary system which incorporates and gives effect to the values and aspirations of both Treaty partners. Recognition legislatively and judicially of this cannot be too far into the future.
5. Are Restorative Justice Processes More Effective in Meeting the Interests of Different Cultural Groups?
This question will be looked at through the experience of Maori as traditional Maori processes for dealing with the effects of crime are essentially restorative in nature.
What is a Restorative Process?
[T]he critical elements of the process are those of a meeting between all those involved in the offence(victim/s, offender/s,families,friends and significant others), the participation of all those involved in a search for a way of resolving the harm that has been done, acknowledgment by those responsible for the harm of their role in the offence and for all these events to occur in a context which is culturally relevant and respecting of all participants.
The critical outcomes are about making amends for the harm, and increasing the chances of re-integration of victims and offenders into the community by restoring connectedness.47
Maori are dissatisfied with and have little confidence in the criminal justice system.48 Many different ideas have been implemented to give justice more meaning for Maori including the appointment of lay advocates, consultation with Maori within the existing system, holding meetings on the marae and so on. Many of these initiatives have added meaning but the essence lies in the ‘restoration of authority to the community and transfer of the focus from the individual to the group’.49
Historically, Maori operated under a system based on tikanga (justice or fairness as evidenced in customary practice). The interests of the whanau or hapu were important rather than the interests of the individual.50
[T]he system imposed responsibility for wrongdoing on the family of an offender, not just the individual, and so strengthened the sense of reciprocal group obligation. The consequences of an individual or group action could therefore redound on the whanau, the hapu, or even iwi, since the ancestral precedents which established the sanction also established the kinship ties of responsibility and duty. Thus the use of muru51 enabled justice to not only be done, but to manifestly be seen to be done by all members of both the offender’s and victim’s whanau. The ever-present influence of tapu52 created a group consciousness about behaviour which was like or correct....These concepts were a consistent body of theory and sanction upon which the society depended.. Sanctions imposed for any infringement aimed to restore the balance between the individual, the group, and the ancestors. Thus the whanau of the offender was made aware of its shared responsibility, that of the victim was given reparation to restore it to its proper place, and the ancestors were appeased by the acceptance of the precedents they had laid down.
The New Zealand Law Commission recently completed a study to assist those involved in justice institutions to respond better to the needs and values of Maori women. The study examines the impact of laws, legal procedures and delivery of legal services on family and domestic relationships, violence against women and the economic position of women. There was an extensive programme of consultation with Maori women.53
Some of their views are as follows:
On the family group conference (FGC)
‘"I really believe the FGC’s are working quite well. They give the whanau a chance to talk.’
‘One conference I was involved in had Maori protocol which was really important to me as Maori.’
‘I wanted to take the FGC back on our marae. Because they are from our marae and our people know what is best for them.’
On the legal system
‘Whanau concepts need to be acknowledged by the legal system.’
‘"The court system is a real barrier. It is like you-do-as-I-tell-you.’
‘Maori women are lacking confidence in the legal system which is not effectively doing what it promises to do.’
On Restorative Justice
‘The only way to stop the cycle of abuse or offending is by dealing with the behaviour problem and the individual. Not by ostracising them in jail.’
The concerns raised in this study can effectively be met through restorative processes. This has been recognised by the New Zealand Maori Council.54
[T]he restorative system can be the basis for ensuring that authority is given to people within their communities to take responsibility for all their own members, including victims offenders and families. It can allow for meaningful input from the people themselves and for responsibility to be restored to the social group.
Essential elements to include in a new system based on restorative processes to give effect to the concerns of Maori within the criminal justice system have been identified as follows:55
While the objectives are given for a new system of justice, the New Zealand Maori Council recognises traditional Maori processes for dealing with crime may be supported through integration of restorative justice into the current criminal justice system.
6. Where to from Clotworthy ?
Restorative justice is about how victims, offenders and their community respond to the effects of crime, irrespective of their cultural origins. This paper has argued restorative justice is appropriate for meeting the concerns raised with respect to Maori within our criminal justice system. However, this is by way of an example of how restorative justice can be utilised to meet the interests of all cultures within our society. The issue is whether we are content to rely on judicial interpretation of restorative justice for its application. Or is legislative reform required to secure restorative justice as a substantive sentencing policy within the criminal justice system.
Judicial interpretation cannot be relied upon to give consistent interpretation of restorative justice. Neither can the judiciary be depended upon to consider restorative justice in its entirety. Clotworthy at the Court of Appeal level illustrates how easy it is for the court to compartmentalise restorative justice. Restorative justice processes are here as affirmed in Clotworthy. As a tool for examining crime and our response to crime it has sufficient momentum to carry on into the future and remain at the forefront of adult criminal policy development. However to secure its effectiveness for all members of our society, legislative reform must be considered.
Current legislation, in the Criminal Justice Act 198556 supports elements of restorative justice. Notably, application of the provisions is fragmented and limited to the pre-sentencing stage or as sentencing options. Section 12, allows for the court to consider offers of compensation to the victim by the offender. This was the section considered in R v Clotworthy.57 Section 14 authorises the court to adjourn to determine the most suitable means of dealing with a case. Section 15 provides for probation reports that may include restorative elements in their recommendations. Section 16 allows ethnic or cultural matters relating to the offence or avoiding re-offending to be put before the court by the offender’s community members. As has been noted elsewhere this provision has been under-utilised by offenders and their counsel.58 Consequently, it is insufficient to secure different community group initiatives for dealing with the effects of crime. Sections 22-25 allow for reparation to the victim of physical harm. Section 28 provides for payment of part of a fine to go to the victim of physical or emotional harm. Sections 29-36 provides for community service. However current attempts to apply restorative justice to crime has occurred on an ad hoc basis rather than within a formal programme.
Reluctant as the writer is to see restorative justice brought under the umbrella of a legislative framework, in this situation the potential benefits warrant such an approach. To justify this assertion, the writer offers the Canadian implementation of restorative justice into sentencing legislation, by way of an example.
Section 718 contains objectives supporting the fundamental purpose of sentencing.59 Some of these restate of basic sentencing aims while others focus on restorative goals.
s718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
The restorative aspects of the above sentencing aims have been interpreted recently by the Canadian Supreme Court in R v Gladue, where they held:60
[W]hat is new, though, are paras. (e) and (f), which along with para. (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender....In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s. 718.2(e) will necessarily be informed by this re-orientation.
Relevant to our purpose is s718.2(e).
s 718.2 A court that imposes a sentence shall also take into consideration the following principles:
... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The scope of the provision is that as a general principle, imprisonment should be a last resort for all offenders. Taking this principle within the context of s718, restorative justice outcomes are secured as a sentencing option for all offenders.61 The special reference to the circumstances of aboriginal offenders, as it is juxtaposed against the general principle, means sentencing judges should pay particular attention to those circumstances as they are unique and different from those of non-aboriginal offenders.62 This is legislative recognition of the unique systemic and background factors of indigenous people.63 Like Maori, they are more adversely affected by incarceration and less likely to be rehabilitated due to the culturally inappropriate nature of penal institutions.64
The purpose of s718.2(e) was approved by the Court in the following factum before the court:65
[s.] 718.2.(e) provides the necessary flexibility and authority for sentencing judges to resort to the restorative model of justice in sentencing aboriginal offenders and to reduce the imposition of jail sentences where to do so would not sacrifice the traditional goals of sentencing.
In discussing the legislative intention for this section, the Court made a powerful statement representing concerns analogous to the situation of Maori within the criminal justice system of New Zealand. It is worth quoting this statement in full:66
[I]t is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.
The attraction of incorporating a section similar to s718 into our Criminal Justice Act is the legitimisation of restorative justice and engaging its use appropriately to community justice initiatives when sentencing offenders. New Zealand was praised for its initiative of introducing restorative justice practices into youth justice. We were thought of as world leaders in this area. However with the steps taken by the Canadian Legislature, we are now lagging behind in this area for adult offenders. It is strongly recommended that New Zealand should reform the Criminal Justice Act to integrate restorative justice and its application for adult offenders explicitly into legislation.
The government proposal for a restorative justice pilot scheme recognises the growth and momentum of restorative justice practices. Governmental support followed consideration of restorative justice in a discussion paper and subsequent public submissions.67 The question is how are restorative justice policies best implemented. The New Zealand Maori Council has suggested essential elements of a system of criminal justice to facilitate integration of restorative justice processes consistent with Maori perspectives.68 Paramount to the success of integration is for community groups, accepting responsibility for restorative justice practices, to be included in the decision-making process concerning reform.
Both the cabinet paper and New Zealand Maori Council suggest a series of pilots.69 This should be developed carefully with continued evaluation. Public education on restorative justice philosophy, fundamental elements and the benefits and risks involved, is the first step in securing a restorative justice process for adult offenders.
The burden for public education must fall on the state. The appropriate role of the state is to articulate the vision, disseminate information and provide support and technical assistance for development of restorative practices. Implementing a pilot programme, public speaking forums, distribution of written material will demonstrate the application of restorative principles. The state has a social responsibility to monitor outcomes, insure fairness, equity and effectiveness of restorative processes.
Integration of restorative justice by statute reform will not result in a new criminal justice system. However integration will improve the current system for different members of society, including victims and offenders. Thus restorative justice can fulfil its potential as an alternative way to deal with the effects of crime.
The justice system has failed to meet the needs of victims, offenders, their families and communities. Consequently confidence in the current criminal justice system is under threat. The law fails to recognise that relationships between people are still central for many cultures and communities. While the justice sector continues to ignore substantive issues such as cultural values and what is in the public interest, the community and particularly the Maori community remain alienated and at risk.
In Canada, the Criminal Code was amended to give offenders distinct sentencing treatment via restorative justice processes. Although sentencing innovation in and of itself does not effect the causes of crime, such amendments allow sentencing Judges to influence the treatment of offenders: ‘They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will perhaps play a stronger role in restoring the balance to the offender, the victim, and the community, and in preventing future crime.’70
Justice should seek to:
· respect relationships between people (Whanaungatanga)
· support the obligation to care for one another (Manaakitanga)
· maintain group authority (Rangatiratanga)
· achieve unity through consensus(Kotahitanga)
· respect the spirituality at the centre of all actions and relationships (Wairuatanga):
[H]armony... requires many things, including an attitude of respect for others, a desire to mend the tear in the fabric of the community caused by crime, and a belief that the law is there for the benefit of all. Law-makers, therefore, have a responsibility to seek to promote a just regime.71
The restorative system can be the basis for ensuring that authority is given to people within their communities to take responsibility for all their own members, including victims, offenders and families. It can allow for meaningful input from the people themselves and for responsibility to be restored to the social group. The State system can provide the ability to protect when other strategies fail.72
Although it has been argued that legislative reform is the way forward, the Court of Appeal, as the gate-keeper of public interest, should take a pro-active role in exploring other sentencing options, examining more closely the relevance of "general deterrence", if anything, and ensuring that the law benefits all members of our society, including victims and offenders.
The words of Judge Thorburn provide a fitting conclusion to this article: 73
[I] consider that whilst the Crown has put me in touch with cases that give fairly unequivocal and unambiguous messages about sentencing in this area of offending, the Crown does not appear to have felt any need or interest in establishing a drivenness about the particulars of this case to ensure that the full and punitive side of the sentencing is really emphasised to the exclusion of anything else.
Justice in law is not a collection of binding precedents alone; it should also be a vehicle of hope for victims, offenders and the community, including Maori. The Court of Appeal is not bound by its previous judgments and is free to adopt a more pro-active role, such as that taken by Judge Thorburn. This could lead the way to a more peaceful, harmonious and inclusive community.
ENDNOTES:
* Helen Bowen is a barrister, facilitator of Te Oritenga Restorative Justice Group, director of Justice Alternatives, co-editor of Restorative Justice Contemporary Themes & Practices and a trustee of the Restorative Justice Trust.
Terri Thompson is in the final semester of the LLB programme at the University of Auckland, New Zealand.
The authors wish to extend their appreciation to Mihi Mariu for her unique contribution as conscience and guide in tikanga Maori.
yp 47.3%, Maori Offender Prosecution Rates 1998 - 48.1%.
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