Chapter 3
The existing court process for sexual violence cases

Sentencing and restorative justice

3.65If a defendant is found guilty after trial or if the defendant pleads guilty, and a conviction is entered, sentencing will follow, usually some weeks later.

3.66The Sentencing Act 2002 sets out a procedure for resolution of any dispute over facts that are relevant to sentence.203 Otherwise, sentencing will proceed on the basis of an agreed summary of facts and any submissions of counsel, along with other relevant material including pre-sentence reports and victim impact statements. Prior to sentencing the court can adjourn the case in order to make inquiries as to suitable punishment204 and may also direct a probation officer to prepare a pre-sentence report, which may contain information about the offender, the offence, and a proposed sentence.205
3.67In certain cases the court must adjourn the case before sentencing to allow inquiries to be made about the suitability of the case for restorative justice.206 There must be agreement from both the complainant and the defendant before a case is permitted to enter a restorative justice process.

3.68There is no restriction on restorative justice being used in sexual violence cases. However, the Ministry of Justice currently requires restorative justice services for sexual violence to be delivered by an accredited facilitator. Where used in sexual violence cases, restorative justice conferences must be tailored to that context and take account of the unique dynamics of sexual violence. This means that the conferences may be lengthier and require more preparation time. At the time of writing, four restorative justice providers in New Zealand had accredited facilitators.

3.69If a restorative justice conference is undertaken and results in an outcome provided for in section 10 of the Sentencing Act 2002 (for example, if the perpetrator and the victim reach an agreement as to how the perpetrator will remedy the wrong), this must be taken into account by the court when the case returns for sentencing.207 Section 10 of the Act also requires the court to take into account matters such as any response of the perpetrator or the perpetrator’s family, whānau, or family group to the offending,208 and any measures taken by the perpetrator to apologise to the victim or otherwise make good the harm that has occurred.209
203Sentencing Act 2002, s 24.
204Sentencing Act 2002, s 25.
205Sentencing Act 2002, s 26.
206Section 24A of the Sentencing Act 2002 provides in full:
24A Adjournment for restorative justice process in certain cases
(1) This section applies if—
(a) an offender appears before a District Court at any time before sentencing; and
(b) the offender has pleaded guilty to the offence; and
(c) there are 1 or more victims of the offence; and
(d) no restorative justice process has previously occurred in relation to the offending; and
(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.
(2) The court must adjourn the proceedings to—
(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.
207Sentencing Act 2002, s 10.
208Sentencing Act 2002, s 10(1)(c).
209Sentencing Act 2002, s 10(1)(d).