The new s 24(a) of the Sentencing Act 2002 came into force on 6 December 2014. The new provision means a court must adjourn proceedings to enable enquiries to be made by a suitable person whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victim and, if it is appropriate, for the process to happen.

It applies if an offender has pleaded guilty, if there are one or more victims of the offence and if no restorative justice process has previously happened in relation to the offending.

In May 2013, the Government announced it would be providing an additional $4.4 million for restorative justice services in 2013/14 and 2014/15.

The extra funding, provided through the justice sector fund, increases the total investment in these services over the two-year period to $10.6 million and will deliver an additional 2,400 pre-sentence restorative justice conferences, the Government said.

One question that has arisen recently is whether this is sufficient resourcing to enable the provisions of s 24(a) to be implemented without causing undue delays in processing cases.

The Restorative Justice process is causing backlogs in courts throughout New Zealand but further steps will be taken to help alleviate issues if they continue, according to Ministry of Justice Acting Deputy Secretary Policy Ruth Fairhall.

Ms Fairhall says initial national figures for December 2014 indicate more than 800 referrals to restorative justice, which is more than double that recorded in November.

She says, however, that it is important to note these are numbers of referrals or directions to restorative justice and not conferences. The ministry was unable to provide regional figures when requested to do so by LawTalk.

“We are aware of the effect of the demand for the service and know of some cases taking longer to progress through the courts in Christchurch, Hamilton and Whanganui because of the holiday-period shutdown and the law change.

Bedding in

“We are in a bedding-in stage for the new restorative justice process, which only came into effect less than two months ago,” she says, adding that over the past year the ministry has been working with providers to prepare them for the changes, including building capacity for greater volumes of referrals and conferences.

Ms Fairhall says the ministry is talking regularly with court staff and providers of restorative justice services and will consider further steps if the current concerns continue.

New Zealand Law Society South Island Vice-President Allister Davis says he and other practitioners are less than impressed with the new legislation.

“I think it’s nonsense. If all they did was change one word from ‘must’ to ‘may’ or remove the words ‘suitably qualified person’, it would work. I simply maintain the Law Society believes restorative justice is a good option, but not in all cases. In this situation [Christchurch bottle-neck] it’s been made or been applied to all cases … It’s easily remedied.”

The judiciary was reluctant to comment on the problems associated with applying the new legislation, as it has a meeting scheduled with the ministry and a meeting with Justice Minister Amy Adams on 29 January to discuss the issues.

However, it was reported in the Christchurch Court News on 27 January (reporter Anne Clarkson) that Judge Gary MacAskill found a note on the bench telling him that the Restorative Justice Agency had no room left for new cases and not to remand any more cases to them.

He then explained to counsel that he wasn’t going to take any notice of the note and said that there was a service but that it needed to be funded.

Adding complexity

Riverlands Chambers criminal lawyer Stephen Hembrow – a 35-year criminal law specialist – says by calculating the average cost of the restorative justice process and adding the extra $4.2 million put in by the government, it would allow an extra 85 restorative justice conferences a month. That would be sufficient for Canterbury and Ashburton only, Mr Hembrow says.

He says the process is turning simple cases into complex and drawn out ones.

He uses a stolen car as an example, where a police chase leads to car clipping a power pole and crashing through a fence.

“So you then have – for the purposes of restorative justice – the fence owner, car owner, the electricity supply company, possibly the phone company and possibly Transit New Zealand because it’s taken out one of their signs on the way through as well. How you’re ever going to get those five groups interested in being at the same place at the same time is beyond me,” Mr Hembrow says.

Traditionally, he says, police or probation would call Transit New Zealand and they would have a standard cost for signs.

He believes the main point of restorative justice would be better achieved if the offender went through the restorative justice process post-sentence.

“For my sins, as many other criminal lawyers, we have told clients who have not been interested in restorative justice, that they have to go to these conferences and need to appear interested because it will make a better result to the sentence. But I know perfectly well after talking to many of them, afterwards that all they’ve done is pay lip service to the situation and they’ve only participated because they thought it might get them a better result. Not because they want to make amends, not because they truly wish to change.

“People who aren’t doing it for a craven need, and are doing it because they generally feel sorry and want to see how they can fix this … in other words the New South Wales model … I’m fully supportive of it, but it’s in the wrong place in the system.” 

The ministry says in the 2013 Budget, the Government committed an additional $4.42 million in anticipation of the increased use of restorative justice services.

In November and December 2014, the ministry ran 19 workshops around the country, including in Christchurch, with court staff, restorative justice providers, members of the legal profession and other key stakeholders on the amendments to the Sentencing Act 2002.

The ministry says there has been wide public consultation regarding changes to restorative justice. In 2009 the public was consulted on a range of proposals to improve the rights of victims, including referring cases to restorative justice.

Following the public consultation, the Government drafted and introduced the Victims of Crime Reform Bill in August 2011.

It was referred to the Justice and Electoral Select Committee, which invited public submissions on the Bill in 2012. The committee received 34 submissions, of which 21 supported the bill.

Following submissions, the committee noted that it was important that consideration be given to whether a victim wished to participate in a restorative justice process.

The law, as enacted, includes a requirement to explicitly include the wishes of the victims among the matters that must be considered during an inquiry into whether restorative justice is appropriate in the circumstances of the case, the ministry says.

What is a defence lawyer’s role in restorative justice?

• If you have a client who intends to plead guilty to an offence where there is an identifiable victim, you should advise them about restorative justice and seek their views on being involved.
• Inform the registrar of your client’s willingness, or not, to participate in restorative justice.
• If requested, provide the court with contact details for the offender to go on the referral form.
• If the case is adjourned for restorative justice the court will inform you of your client’s sentencing date.
• If the restorative justice conference does not go ahead your client will be required to attend at the sentencing date.
• If the restorative justice conference goes ahead the court will inform you of a new sentencing date.
• Once the service is completed you will receive a copy of the restorative justice conference report, and may refer to it in your sentencing submission.

What happens in terms of legal aid if someone is referred to restorative justice?

• The criminal legal aid schedules have always included a fee for restorative justice, for costs associated with briefing a restorative justice provider and consideration of the subsequent report.
• Additionally, since 15 December 2014, when an appearance is adjourned for investigation of restorative justice, legal aid providers have been able to claim for, via an amendment to grant, preparation for that adjourned appearance and for the actual time of the adjourned appearance(s).
• These fees and arrangements will be looked at as part of the Legal Services Commissioner’s review of criminal legal aid fee schedules.

Legal aid providers can seek an amendment to grant of:

• a flat fee of $120 for preparation for the second and/or subsequent appearance or, if the provider makes a case that the re-preparation work has taken more than an hour of their time, an appropriate number of hours; and
• actual time at the second or subsequent appearance at the rate of $48 per half hour.

The amendment to grant can be applied for either before the event or retrospectively and reasonable applications for an amendment to grant for these reasons will not require additional evidence.