Chapter 7
The case for an alternative justice mechanism

What kind of an alternative justice mechanism?

7.35In New Zealand, with the operation of Project Restore, we already have an example of an alternative justice mechanism (embracing the restorative justice model, which is discussed further below) being applied in sexual violence cases. Project Restore is an Auckland-based restorative justice provider that operates specifically in the area of sexual violence. It emerged in 2005 as a pilot in response to the frustrations victims experienced with the conventional justice system and is now funded by the Ministry of Justice. Project Restore provides two kinds of restorative justice services: court-referred services (cases that have been referred from the courts under the Sentencing Act 2002); and community referrals (cases that are self-referred or referred from community organisations). It aims to provide victim-survivors with an experience of a sense of justice, to support offenders to understand the impacts of their behaviour, and to facilitate the development of an action plan, which might include reparation being made to the victim and therapeutic programmes for the perpetrator. The model offered by Project Restore is not the only way of offering an alternative to trial. It would be possible to vary the location, the number of people involved, the specific cultural practices and the nature of the outcomes.

7.36Before we discuss our proposal in further detail in Chapter 9, we briefly consider whether there currently exist means in New Zealand to address victims’ justice needs which could be built upon, rather than an entirely new programme being implemented.531

Pre-sentence restorative justice conferencing (status quo)

7.37In New Zealand, restorative justice is recognised as part of the criminal justice system. Legislation encourages the use of restorative justice where possible and allows for restorative justice processes to be taken into account in the sentencing and parole of offenders. Restorative justice is available at several stages of the criminal justice system, for instance a victim may request to meet with an offender to resolve issues relating to an offence under section 9 of the Victims’ Rights Act 2002. This could occur post-sentence and we are aware that conferences have been held at this point. However, in practice, most restorative justice conferences occur at the pre-sentence stage in accordance with section 24A of the Sentencing Act 2002, which provides that proceedings in a District Court must be adjourned before sentence, if an offender has pleaded guilty, to determine if restorative justice would be appropriate. The outcome of any restorative justice process must be taken into account at sentencing. 

7.38Restorative justice pre-sentence conferencing for sexual violence has only been available for the last few years. In 2014, there were 128 sexual violence restorative justice referrals. 116 of these were to Project Restore532 and 12 were to other providers (and of those 128 referrals, 92 went to pre-conference stage and 38 continued to a restorative justice conference).
7.39Following the introduction of section 24A of the Sentencing Act 2002, this figure increased, so that there were 105 sexual violence referrals (all to Project Restore) in the first three months of 2015 alone.533 Section 24A of the Sentencing Act 2002 requires an adjournment of a sentencing hearing in designated circumstances to allow pre-sentence restorative justice conferencing to be considered.

7.40In our view, although there is certainly still a place for restorative justice-type processes and conferences to be held at the pre-sentence, post-guilty plea stage, this will not effectively meet all victims’ justice needs by itself. Such conferences will be helpful in meeting the justice needs of those victims who do report to Police and where the perpetrator pleads or is found guilty. However, this is dependent on victims reporting in the first case and being willing to engage with the criminal justice system. In addition it does not address the fact that some victims will want access to restorative justice, but not at the risk of the perpetrator receiving a term of imprisonment.

7.41One option is to continue with the existing complementary approach of having sexual violence addressed through both the criminal justice system and through a pre-sentence restorative justice process (where deemed appropriate). This would ensure that those who were found guilty of sexual violence would face the punitive sanctions of the criminal justice system, but that the justice needs of victims to participate, to have a voice, and to hold the perpetrator accountable and so on could be addressed through restorative justice conferencing.

Diversion into an alternative justice mechanismTop

7.42Diversion of sexual violence into an alternative justice mechanism would require oversight. One option is creation of a new oversight body for the purpose of monitoring the alternative justice mechanism and the associated functions and risks of such a mechanism. Another option is some form of judicial oversight (a method of police diversion using the courts for a public risk assessment) coupled with administrative support from the Ministry of Justice.

7.43Judicial oversight would require cases to first go before the court, which means a complaint would need to be made to Police who would investigate and, if there was sufficient evidence (and it was otherwise appropriate to do so), file charges. Where the court assessed there to be no public risk or risk to the victim, the case could be diverted into an alternative process, with charges being withdrawn if the programme was successfully completed. This approach already occurs for low level offending and cases involving young offenders, with Police having the ability to divert charges where an offender pleads guilty and a victim agrees.

7.44There are issues with this option, in terms of being better able to meet victims’ justice needs. A diversionary approach relies firstly on a formal complaint being made by the victim to Police and secondly on there being sufficient evidence for charges to be laid. Yet many victims do not wish to make a formal complaint to Police and of those that do, many are abandoned due to a lack of evidence. Lastly, as it currently stands, Police diversion is reserved for low level offending and, by its nature, sexual violence is considered to be serious.

Centre for Innovative Justice modelTop

7.45Another option is to adopt an approach similar to the model suggested in the report of the Centre for Innovative Justice in Australia (discussed in Appendix B), which was commissioned by the Federal Attorney-General’s Department and looks at innovative responses with the potential to better meet the needs of sexual violence victims.534

7.46That report seeks to place emphasis on a victim-driven model, whilst upholding the public policy desire to prosecute offending wherever possible. Under this model there is the option for a victim to enter into an alternative process prior to reporting to Police and at all stages of criminal proceedings. However, once the Police are involved, the alternative process would only be available if, after investigation, there was found to be insufficient evidence to prosecute or, after prosecution had commenced, the prosecutor believed there to be little likelihood of the case succeeding. There would also be the possibility of pre-sentence, post-guilty plea restorative justice and post-sentence alternative processes. At all points, including at the pre-reporting and pre-charging stages, the option of criminal prosecution would remain – so a perpetrator who went through an alternative process may also subsequently face criminal prosecution. This model requires agreement from perpetrators to participate.

7.47In our view this model places too much priority on prosecution over victim choice. We consider the victim should be able to choose between the alternative process and making a formal complaint, even after reporting to Police. The Centre for Innovative Justice proposal only allows a referral to the alternative process if the case is not suitable for a referral to prosecution, for example due to lack of evidence.

7.48Although the Centre for Innovative Justice model does provide access to alternative processes prior to reporting to Police, the fact that under the model the victim can then choose to report to Police, leaving open the option of criminal prosecution, may discourage participation by perpetrators.

7.49A variation based on this Centre for Innovative Justice Report would be to afford privilege to a perpetrator who participates in the alternative process (whether successfully or unsuccessfully), while leaving open the possibility of criminal prosecution. Admissions made during the process, or the fact of participation in the alternative process, would be privileged and unable to be used in any future criminal proceedings. This could encourage more participation, although, in our view, it is unlikely to be as much of an incentive as a statutory bar to future prosecution.

7.50Project Restore is in favour of this kind of model, as it considers that a statutory bar may discourage the participation of some victims if the right to prosecute a perpetrator in the future is precluded. Project Restore also believes that there is a risk that perpetrators could manipulate an alternative process, and not be required to adopt the same level of accountability, if there is a possibility that they will not be prosecuted.535 Currently, the community referral cases that Project Restore conducts and which operate completely outside of the court are largely historic child sex offending cases. Project Restore comments that the perpetrators are motivated to participate due to reasons of family connectedness.536 However, this motivation will not necessarily exist with other cases that may be eligible for an alternative process. Furthermore it is likely that perpetrators without the same motivation will receive legal advice not to participate in an alternative process that does not provide a statutory bar against future prosecution of offending. It is our view that incentives and protections for perpetrator participation are needed.
531Appendix B provides a discussion of overseas models of alternative justice mechanisms.
532Project Restore was inspired by the RESTORE programme in Arizona, the Hollow Waters programme (associated with the Ojibway First Nation peoples in Manitoba) and the research of Doctor Shirley Jülich. Its services and practice model arose from extensive collaboration between victim advocates, community organisations, and Project Restore personnel. Although it incorporates the core values of restorative justice and the practices outlined by the Ministry of Justice for best practice in restorative justice cases, the processes carried out by Project Restore are tailored specifically for use in cases involving sexual violence. See Shirley Jülich and others The Project Restore Report: An Exploratory Study of Restorative Justice and Sexual Violence (AUT, 2010) and Shirley Jülich and others “Yes, there is another way!” (2011) 17 Cant LR 222.
533Email from Jared Walton (Ministry of Justice) to Law Commission (11 May 2015).
534Centre for Innovative Justice Innovative justice responses to sexual offending - pathways to better outcomes for victims, offenders and the community (2014).
535Meeting between the Law Commission and Project Restore (19 October 2015).
536Meeting between the Law Commission and Project Restore (19 October 2015).