Ways to stay out of court: Diversion and Restorative Justice
Restorative justice conferences
What is Restorative Justice?
Restorative Justice is a process that aims to put things right for the people involved and affected by the offending. This is done through a meeting between the victim and defendant called a Restorative Justice conference. The conference is private and run by trained facilitators. Lawyers do not attend the conference.
Sentencing Act 2002, ss 24A, 25
Although Restorative Justice takes place outside the criminal court system, the law specifically requires judges to put off (“adjourn”) each case to give an opportunity for Restorative Justice. Restorative justice should be explored every time there is a guilty plea, an identifiable victim and when a Restorative Justice programme is available.
Judges also have a separate power to adjourn a case to allow for a Restorative Justice process to happen or to be completed, even if the defendant didn’t plead guilty but was found guilty after a trial.
Court staff and police employees also have a specific duty to refer a case to a Restorative Justice process whenever the victim of the offence asks them to arrange a meeting with the offender.
When is a Restorative Justice conference available?
When a defendant pleads guilty to an offence that has affected a victim, a Restorative Justice conference may be available if the victim consents to the process and the Restorative Justice facilitators agree that it is appropriate.
In many parts of the country, there are court-referred Restorative Justice programmes. In these programmes, court co-ordinators interview the defendant to check whether Restorative Justice will be suitable and refer the case to trained facilitators, who start meeting with the parties and decide with them whether it should proceed to a face-to-face conference with the other party.
In order to decide whether a Restorative Justice conference is suitable, a facilitator will meet the defendant, the victim and their support people (each of these pre-meetings are confidential). Both the defendant and the victim must be willing to take part; the defendant must accept responsibility and the aim must be for the conference to produce a positive outcome.
For a list of restorative justice providers go to www.justice.govt.nz and search “restorative justice providers”.
Note: In parts of the country where a court-referred Restorative Justice programme is not available, there may be a Restorative Justice community group operating an approved programme. If the defendant wants to take part in one of these programmes, they will need to contact the Restorative Justice community group.
Who do I speak to, to see if Restorative Justice is appropriate?
If the defendant has pleaded guilty to the charge and a Restorative Justice process is available, the judge must put the case off to provide an opportunity to find out whether Restorative Justice is appropriate.
Ideally you will have the chance to speak to the RJ co-ordinator in court before your appearance so you know what to expect and can ask any questions before a referral is made. You can ask you lawyer to introduce you to them in person or over the phone.
What happens at a Restorative Justice conference?
A Restorative Justice conference is a meeting between the defendant and the victim, each with their support people. Lawyers are not involved in the meeting. Trained facilitators help the victim and the defendant discuss their ideas to help make things right and prevent it happening again.
The victim gets a chance to talk about how they’ve been affected by the offence and to have a say in how the harm can be repaired. The defendant has a chance to accept responsibility for what they have done.
The aim is for the victim and defendant to come to an agreement about a way forward. Sometimes this includes an agreement on a plan for how the defendant can put things right. Any concrete asks or offers that are agreed to together are highlighted in the report.
How does a Restorative Justice conference affect a defendant’s sentence?
The facilitators write a report about what happened at the conference and any agreements reached. The report is shared with both parties.
The Restorative Justice report is given to the judge, who must take the report into account in deciding the defendant’s sentence (see “Sentencing” in this chapter).