Transcript COMMUNITY LAW CANTERBURY

A sensible system of criminal justice
in Aotearoa New Zealand
Community Justice Panel (CJP)
 A community-based alternative to the
retributive criminal justice system
Law vs Justice
 “Law and justice then are, regrettably, not synonymous
terms. The law is not sacrosanct and never should be. What is
sacrosanct is true justice, the dignity and equality of people,
and respect for the human person over and above every other
consideration.”
Jim Consedine “Restorative Justice: Healing the effects of crime”
Ploughshares Publications, Lyttelton, New Zealand
Revised edition 1999, p22
Retributive justice
 “Retributive justice as we know it views everything in purely
legal terms… legal training is trained tunnel vision. In law
school you are taught that only legally defined issues are
relevant.”
Howard Zehir, IARCA Journal, International Association of Residential and
Community Alternatives, March 1991
RJ & sentencing – one step forward
 Sentencing Act 2002, s 8
“In sentencing or otherwise dealing with an offender the
court…
(j) must take into account any outcomes of restorative justice
processes that have occurred, or that the court is satisfied are
likely to occur, in relation to the particular case…”
“Three strikes” – a giant leap back
 Recent amendment to the Sentencing Act 2002 (new sections
added: 86A – 86I)
 40 offences defined as “serious violent offences”
 Three stage process:
 Stage 1 & 2 – people convicted of a “serious violent offence” are
warned at the time of sentencing
 Stage 3 (i.e. “third strike”, when convicted of 3rd “serious
violent offence”) – High Court must sentence & impose
maximum penalty for that offence, in general with no parole.
What about judicial discretion?
 “Three strikes” law retains some judicial discretion in terms of
granting parole (s86D(3) Sentencing Act 2002)
 No parole “unless the Court is satisfied that, given the circumstances
of the offence and the offender, it would be manifestly unjust to
make that order” (my emphasis)
Cf R v Ali (19 August 2004) HC AK CRI-2003-292-1224
 Significantly undermines current general discretion:
 Judge must impose maximum penalty or near to the maximum if
offending was or was near to the most serious of cases
 “… unless circumstances relating to the offender make that
inappropriate”
Sentencing Act 2002 ss 8(d) and (e)
Forever in “Offender Databases”
 “I’ve spent too much time in jail and I now want help for my
alcohol and drug problem. Prison is not helping. There is a lot
of good in me you probably don’t know about”
A gifted artist I will refer to here as “Joe”
Sensible sentencing!
 “Get yourself off drugs, get into playing league again and get
yourself a job, then come back and I’ll sentence you.”
Justice Holland (paraphrased of course)
Punishment: a counter-productive goal
 “Punishment has become something the dominant group in
society imposes on those of little status and power who are
not in a position to challenge its fairness or its usefulness. The
political authorities are seen to be doing something about
crime, but because what they are doing is counter-productive
and actually a cause of more offending, crime rates continue
to climb and more and more disempowered people get
caught in its net…”
Jim Consedine p 19
Adversarial legal system vs logic
 “… The adversarial legal system spawned by the logic of
punishment…
is actually destructive of some of justice’s most cherished objectives:
the shared sense of what is right and wrong, the holding to account
for wrongdoing, the affirming of the importance of the rights of the
person injured, the sense of proportionality to the gravity of the
misconduct, and the prevention of further harm. (Lorraine Berzins)”
Jim Consedine p 19
The restorative model
 Not
“How do we best punish this offender for this offence?”
 But
“How do we best heal the harm caused by this offending?”
Crime – simply, when society fails!
 “Crime comes about when the underpinnings of our culture
fail, when the ties that hold us together, socialise our
children, and satisfy our needs are broken. Just as the
environmental crisis reflects our failure to act in mindfulness
of the interdependence of the human species and the other
living creatures of the Earth, crime reflects our blindness to
the fundamental interconnectedness of people.”
Jim Consedine p 18
Justice as right relationships
 An ecologist at an RJ conference:
“I fear our relationship as humans with our environment is in peril.
I believe restorative justice is about right relationships between
people. I thought, if we are to ever have any hope for getting
our relationship with our environment right, then first we must
be sure we have our relationships with each other right.”
CJPs – a new approach
 Who?
 Community law centre!
 Police
 Local government (Christchurch City Councillors)
 Local iwi
 Kaumatua
 Judiciary
 Academics
 Court staff
 Ministry of Justice
CJP process
 Assessment at time of arrest
 If suitable for CJP – offender is released from custody and
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CJP process explained (CLC provides free advice here)
Date set for appearance before CJP (usually three members
of offender’s community, pref non-lawyers!)
Police prepare info sheet (including reparations, if any,
sought) to present to CJP
Offender must consent to CJP process & admit guilt (note:
admitting guilt also required by ‘Police Diversion’ scheme)
Interaction, panel discussion, and an agreement…
What a CJP agreement could be
 CJP could result in an agreement that the offender will:
 Make payments for damage or loss caused
 Apologise to victim
 Undertake a course of action to address why offending occurred
in the first place
 Perform some work for the victim or the community
 Take steps towards obtaining training or employment
 Any combination, or all, of the above!
CJP objectives
 Community-based alternative resolution options
 Personal accountability by offenders
 Increased victim involvement in resolutions
 Reducing criminalisation for minor offending and avoiding
unnecessary convictions
 Reducing the demand on Court resources
 Simplifying police procedures in relations to minor offending
Where it’s at
 In its infancy in Otautahi, Christchurch
 Pilot programme planned for process to apply only where no
information is laid (i.e. not yet under Summary Proceedings Act 1957 s19A(3))
 But, could be extended via existing sentencing provisions:
 A Court is enabled “to determine the most suitable method of
dealing with the case.” (Sentencing Act 2002 s25)
 So Court could adjourn to enable CJP process to occur, then
withdraw the information
Another forum is now!
 Restorative justice is long overdue.
 Our CLC hopes that the Community Justice Panel in
Christchurch can be part of the solution.
Contact us!
 Phone Community Law
Canterbury reception:
(+64 3) 366 6870
 Email me:
[email protected]
And of course…
If you can’t get legal help
anywhere else…
we are here to help!
Thank you for your time