Restorative Justice Series – Part 3. Restorative Justice Processes

Restorative Justice Series – Part 3. Restorative Justice Processes

The previous instalment in this series discussed juvenile sentencing principles and sentencing options. Particular emphasis was placed on the breadth of available sentencing options for courts that are aimed at rehabilitating children and diverting them from the criminal justice system.

This blog will look specifically at restorative justice processes, their aims and consequences. Both police and court referrals to restorative justice processes will be discussed.

Background

Restorative justice is an internationally recognised response to criminal behaviour where the impact on society, and harm caused to the victim, family relationships and community are considered in depth. This is opposed to viewing criminal behaviour as simply an act of breaking the law, and represents a more holistic approach to justice.

A restorative justice conference is a meeting between a child who has committed a crime and the people most affected by the crime to discuss what happened, the effects of the offence, and how best to repair the harm caused to the victim. This requires active participation by the child, distinguishing the process from traditional justice responses.

The central purpose of this process is to provide a safe environment for everyone involved to talk about what happened and steps that can be taken to better things.

The restorative justice process can be entered at two stages:

• If a police officer refers an offence for the process after a child admits to committing the offence
• If the court refers an offence for the process after a child pleads guilty in court, or a child is found guilty after they pleaded not guilty

 

Police diversion

If a child admits to an offence and is willing, police officers can refer them to a voluntary conference or an alternative diversion program (see below regarding alternative diversion programs).[1] Police have wide discretion as to which offences they can refer to the restorative justice process. Referrals can be made if:[2]

• The child indicates a willingness to comply with the referral
• A caution is inappropriate
• The restorative justice process would be more appropriate than prosecuting the child
• The nature of the offence
• The harm suffered by anyone because of the offence
• Whether the interests of the community and the child would be served by having the offence considered or dealt with through a restorative justice process.

Prior to engaging in the process, the police must inform the child about the process and the consequences if they fail to participate properly. The restorative justice process is run by an independent and accredited convenor. The aim of the conference is for the child and other concerned persons to consider or deal with the offence in a way that benefits all concerned.[3]

The following people are allowed to attend and participate in the conference:[4]

• The child
• The victim
• The convenor
• The child’s parent
• At the child’s request, their lawyer, an adult member of their family or another adult
• If requested by the victim, the victim’s lawyer, an adult member of their family or another adult
• Another person approved by the convenor

The conference process involves a discussion of the offence, the impact and consequences for those affected, and the ways in which the child can repair the damage or harm caused to the victim. The convenor’s role is to ensure a fair outcome is reached for all parties and that no undue influence or pressure is put on anyone.

 

Court referral or order

Courts may refer children to the restorative justice process when:

• Dismissing the charge entirely when a child pleads guilty but applies for dismissal on the basis that police should have referred them to restorative justice
• Considering referral instead of sentencing if a child pleads guilty (this is required under the Youth Justice Act 1992 (Qld))[5]
• Considering referral if the child is found guilty (this is required under the Youth Justice Act 1992 (Qld))[6]
• Sentencing the child, such that attending a restorative justice process is considered to be a supervised community-based order (for more information on available orders, read the previous blog in the series)[7]

In considering whether a referral is appropriate, the court must consider: [8]

• The nature of the offence
• Harm suffered by anyone because of the offence
• Whether interests of the community and the child would be served at the restorative justice conference

Prior to making the referral, the court must also be satisfied that:

• The child has been told about and understands the process, and has agreed to participate
• The child is a suitable person to participate in the process

All other elements of restorative justice processes when ordered or referred by the court are the same as outlined above.

 

Consequences of restorative justice conferences

Conferences are conducted on a ‘without prejudice’ basis, meaning anything said during the conference cannot be used outside it or in any legal proceeding.[9] This means that anything said by the defendant cannot be used against them in a criminal proceeding against them.

If the conference is successful, a restorative justice agreement may be made. This may involve:

• Making an apology to the victim, orally or in writing
• Performing voluntary or community work
• Repair of or payment for any damage caused

The convenor must ensure that the agreement is not unreasonable or more onerous than if a court had dealt with the matter.

Police diversion

If the conference is successful, the child cannot be prosecuted for the offence unless the Youth Justice Act 1992 (Qld) states otherwise.[10] However, if the conference is not successful or if the child breaches the restorative justice agreement made at the conference, the police can:[11]

• Take no action
• Caution the child
• Refer the offence to another restorative justice process
• Start a court proceeding against the child for the offence.

 

Court order or referral

If the referral is made by a court and the child does not complete the agreement, the matter must be brought back to the court. The court may then take no further action, allow more time for the child to comply with the agreement, or sentence the child. If the child does not participate, denies responsibility, or an agreement cannot be reached, the matter must be brought back to court for sentence.

 

 

Where the court referred the child to restorative justice conferencing to assist in sentencing, a copy of the agreement and information regarding the child’s compliance must be given to the court so that it can be taken into account in the sentence.[12] The court can then order that the child comply with the remainder of the agreement, and this can become whole or part of the sentence.[13]

 

Alternative diversion programs

Alternative diversion programs are available where a conference is not possible even if the child responsible is willing to participate. Referrals can be made in the same process as restorative justice conferences. The program is similarly used to help children understand the harm caused and take responsibility for the offence through various activities, including:[14]

• Remedial actions
• Activities to strengthen the child’s relationship with their family or community, and
• Educational programs.

The program must be designed to help the child to understand the harm caused by their behaviour, and allow the child an opportunity to take responsibility for the offence committed by the child.[15] The program must also ensure the child is not treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes youth sentencing principles.[16] Finally, this program must be in writing and be signed by the child.[17]

Alternative diversion programs are conducted on a ‘without prejudice’ basis, meaning anything said during the program cannot be used outside it or in any legal proceeding.[18] This means that anything said by the defendant cannot be used against them in a criminal proceeding against them.

Family and community involvement

In keeping with the objectives of the Youth Justice Act 1992 (Qld), restorative justice processes encourage families of child offenders to actively participate in the conference, help both their child and the victim understand each other and the consequences of their actions, and identify ways to help their child avoid trouble in the future.

Restorative justice processes also allow for cultural and community input to ensure the conference is appropriate to the specific community. For example, members of Aboriginal and Torres Strait Islander local justice groups or community elders may be invited to participate.

This recognises the role of families and communities in ensuring children feel safe, a sense of belonging and connection, and respected.

 

Conclusion

The restorative justice process provides for effective means of diverting children from the criminal justice system while ensuring children take responsibility for their actions and victims feel heard and respected.

The effectiveness of this process is evident given 77% of children and young people who engaged in the program did not re-offend or showed a decrease in the magnitude of their re-offending.[19] 89% of victims were also satisfied with the outcome of the conference, and 70% believed the process would help them manage the effects of crime.[20]

Lawyers must understand how the restorative justice process operates and ensure that juvenile clients are provided with sufficient information and support in deciding whether to utilise the process.

[1] Youth Justice Act 1992 (Qld) ss 31(2)-(3) (‘YJ Act’).

[2] YJ Act ss 22(3)-(4).

[3] YJ Act s 33.

[4] YJ Act s 34(1).

[5] YJ Act s 162(1).

[6] YJ Act s 162(2).

[7] YJ Act s 175(1)(db).

[8] YJ Act s 163, 192A.

[9] YJ Act s 40.

[10] YJ Act s 23(2).

[11] YJ Act s 24(3).

[12] YJ Act s 165.

[13] YJ Act s 175(1)(da).

[14] YJ Act s 38(1).

[15] YJ Act s 38(2).

[16] YJ Act s 38(3).

[17] YJ Act s 38(4).

[18] YJ Act s 40.

[19] Queensland Government, Youth Justice Strategy 2019-2023 (2021) 9 <https://www.cyjma.qld.gov.au/resources/dcsyw/youth-justice/reform/strategy.pdf>.

[20] Ibid.