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Considering Restorative Interventions in Sentencing

New Zealand's Sentencing Act of 2002 incorporated restorative justice language in its sentencing provisions. Judges are now required to consider the results of a restorative process in sentencing decisions. Judge Stan A. Thorburn of the District Court in Auckland applies these provisions to a case of aggravated robbery.


In the District Court

at AUCKLAND CRI-2004-004-003788

 THE CROWN

v

MAKATUU FOLAUMOELOA

 

Appearances:    

S Cato for the Crown

S Sheffield for the Police

J Kovacevich for the Prisoner

 

Judgment: 16 September 2004

NOTES OF JUDGE S A THORBURN ON SENTENCING

[1]  Mr Folaumoeloa I will allow you to remain seated whilst I talk.  I will tell you when I need you to stand.  I am going to sentence you to a term of imprisonment.

[2]  I just want to take the opportunity to try and articulate a few principles because I have been impressed by the restorative justice process in this case.  I think it is worthy of comment. I am not sure how my comments will flow.

[3]  Mr Folaumoeloa is before the Court as a 17-year-old, soon to turn 18.  That of course speaks for itself because he is so very, very young.  In the eyes of somebody at my stage of life he is probably still very much a child (in his head) in an adult’s body.

[4]  He is to be sentenced for an aggravated robbery and indeed it was a bad one.  He was with another person and, lubricated by alcohol, he and the other person cruised the area looking for a suitable target for the purposes of an aggravated robbery and, with that in mind, chose a service station where there was a sole attendant.  They entered the premises and each played their part, it mattering not really as to who did what or whether the role of one was more culpable than the other.  But the other person produced a screwdriver obviously to ensure that the fearful victim would be made more fearful and to underscore the message that these young assailants were serious.  The young prisoner was standing alongside obviously by his presence, lending intimidating support.  They took $240.

[5]  When interviewed shortly afterwards (for apprehension did not take that long) he gave the explanation that he and his mate were looking for money to buy alcohol.  It turns out that he had been fuelling himself by the consumption of alcohol for many hours beforehand – unfortunately an all too frequent scenario involving young people but, of course, when it culminates in such behaviour, it cannot be tolerated by the community.

[6]  This was on 25 March.  The three or four days preceding that have left their mark as well.  On 20 March he stole a packet of cigarettes.  This is a little more complex than it might seem by the charge because it too, began its life as an allegation of robbery in which through intimidation someone yielded up their cigarettes.  So, in a way, the young prisoner is lucky, I think, that his involvement in that has now come down to a simple theft of property of fairly low value.

[7]   Then about a month earlier, on 21 February he was involved with another in unlawfully getting into a motor vehicle.  So for about a month or so clearly he was behaving out of control, indiscriminately offending, pinnacling with this most serious charge of aggravated robbery.

[8]  On 21 March (I am sorry I do not have things in proper order by date) he unlawfully took a motor vehicle, filled it up with petrol and drove away without paying, then used it for a few days.  His explanation was that he just wanted a car.

[9]  All of that and his attitudes when apprehended, are indicative of a young man, who for a shortish period of time, with an attitude – no doubt fuelled with alcohol and perhaps drugs (who knows), felt that he was bullet-proof and superior, and would do what he wanted behaving extraordinarily stupidly.  Oddly, but worthy of comment, is that all of that would seem to be markedly out of character for him, and in great contrast to his family standards.

[10] His behaviour as a 17-year-old, although criminally serious, is probably not that uncharacteristic of the sort of idiocy that many 17-year-olds display and there is probably nobody in this courtroom who would be exempt from some idiocy when they were 17.  But as I have said, it all pinnacled in this arrogant act of aggravated robbery which is before the court.

[11] I had earlier referred the prisoner to restorative justice processing so I have a probation report and a restorative justice report.  There was a successful meeting with the sole attendant at the service station – and his boss – and the prisoner was supported, too, by his loyal and concerned parents and a brother.  Before the Court is a fine narrative of what took place at that conference.

[12] Ordinary sentencing principles (which are applied daily) call for a prison sentence – and quite a stern one.  The well known case of Mako [2000] 2NZLR 170(CA), applies.  But the Sentencing Act 2002 has now included the language of restorative justice and an acknowledgment of such processes as an authentic matter in sentencing.  Therefore, s 8(j) makes it mandatory for a judge to……. take into account any outcomes of restorative justice processes.

The question is: how does that affect what might otherwise be the correct and proper sentence in any given situation?

[13] Mako suggests categories of offending.  Clearly the offending in this case falls into the category that is described in paragraph 56….. robbery of a small retail shop by demanding money under threat of the use of a weapon….  Where there is no actual violence and, on the basis of a denied charge that goes to trial, Mako suggests a sentence of 4 years as a starting point. This case is clearly in that category.

[14] Mako does acknowledge the need for the Court to reflect upon concessions for pleas, youthfulness and prospects of rehabilitation (paragraphs 34 and 65) as mitigating factors, although at the same time being anxious to ensure that sentence of  a youthful person does reflect concern at the high proportion of robberies committed by teenagers.  In paragraph 66 the Court says:

However, where the offender is a youth who is in relevant respects a first offender and appears generally motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence.  Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender remains serious violent offending.

So having placed the prisoner’s offending in the category spoken in paragraph 56 of  Mako, relief because of plea, youthfulness and genuine prospects of rehabilitation and motivation to reform can be considered.

[15] I am going to turn to the restorative justice conference.  I think it is now time for thoughtful comments when taking into account outcomes of a restorative justice conference, because restorative justice language has been introduced into statute, and is different language compared to the traditional language of sentencing.  Its relevance needs to be conveyed to the public so that the community can have flesh put on the bones of understanding about what restorative justice envisages.

[16] Purposes of sentencing in s 7 of the Sentencing Act include holding an offender accountable (7(1)(a)).  Principles of sentencing in s 8 obligate the Court to take into account outcomes of a restorative justice process (8(j)).  Section 9 deals with aggravating and mitigating factors.  Subsection 2 thereof includes the age of an offender and remorse as mitigating factors (9(2)(a) and (f)).

[17] Section 10 obligates the court to take into account offers, agreements, responses or measures to make amends.  Whilst it primarily focuses on practical matters such as financial reparation and/or other means of righting a wrong by repairing damage, and undertaking work and service, it does include “response” and “apology” (10(1)(c) and (d)(ii).  Subsection 2 provides that in deciding to what extent any such matters should be taken into account……… the Court must take into account whether or not it was genuine……and has been accepted by the victim as expiating or mitigating the wrong.  (10(2)(a & b))

[18] Restorative justice and its influences or effects are not measurable in any scientific or empirical way and so the way to evaluate the effect of a restorative justice meeting cannot be formulated.  The extent of acceptance by a victim of an apology, for example, such as expiates or mitigates the wrong can’t be measured. What is expiation in such a context?  The legislation does not say.  I think at least it would include a process that returns some peace and confidence to the heart and emotion of a victim – a feature or quality which is, of course, not measurable.

[19] In the restorative justice conference the young prisoner and his family met with the victim and his boss or employer.  These people are from Pakistan.  In the meeting there was prayer, there were tears, there were exchanges of what one might say was rhetoric, but certainly there was communication and verbalisation of regret and remorse, and acceptance of that.  There was embarrassment portrayed by the offender and his family, and grace and forgiveness portrayed by the victims.  And, in what is reported in a remarkable way, there was a genuine human experience taking place.

[20] The restorative justice experience is demonstrating that it can be a powerful tool to achieve the purpose in s 7 of holding an offender accountable.  Common sense would surely affirm that there is more likelihood of acceptance of accountability and understanding of the harm caused through crime when one is sitting face-to-face with one’s victim.  This is a dimension of process that restorative justice has introduced.  Most practitioners in the criminal justice field understand that offenders often serve sentences of imprisonment without at any stage making the emotional or rational connection between their offending and its effects on victims.  The meeting in this case such as it is reported to me is of great significance in my view because of its potential to deal with that.

[21] Mitigating factors that I have referred to include remorse shown by an offender.  Again, how does one measure remorse?  Letters of apology are often written but as we all know, very often they are worth no more than the paper they are written on.  True remorse, surely, can be more readily seen in the intimate circumstances and intensity of an actual meeting.

[22] What I have read includes an overflow of emotion with apology verbalised, demonstrated and accepted.  Time will tell whether all of that is truly genuine.  There were promises not to reoffend and to stay out of trouble.

[23] Prospects of rehabilitation ….Mako has referred to that; it also is a purpose of sentencing (s 7(1)(h)).

[24] In this case the restorative justice process revealed that this young offender has deeply committed parents who are ashamed by the behaviour of their young one, shame which will clearly permeate throughout the family dynamics.  Some academics have written about reintegrative shaming, the sort of embarrassment and shame that is of a nature that engenders a deep desire to do better and not offend again for the sake of avoiding embarrassment for a family or close community.  I think the shame that has been portrayed in this case is in that category.  The family bond was demonstrated before the victims – the prisoner and his family held hands.

[25] All of this was an experience of human reality for those in attendance.  There would be no-one in this courtroom who is not the person that they are without their actual human experiences, and so it seems to me that the process that has taken place, with all its depth, ought to have been a significant human experience for all concerned, and an experience that one can but hopefully trust, of character building benefit for the young offender.

[26] Restorative justice makes it possible for these sorts of streams of influence to validly feed into the community and enable proper recognition to be given to the generosity of human spirit that can sometimes be revealed – as in this case – by victims and the power of their desire to be forgiving in person-to-person meetings – and in this case, too, one must say, across the boundaries of quite different cultures, that can influence an offender.

[27] Because restorative justice is now in our statutes, it is important that it is seen as a proper process, and as another response to the evil and sadness of crime, - a human response that can stand validly alongside the familiar purely retributive response.

[28] Well then, having said all of that, how is it taken into account in this particular case?  A prison sentence of a quite significant period is a justifiable starting point.  It might be thought, too, that restorative justice processes are a way to avoid prison.  That – if it is indeed an impression the public might have – needs to be disavowed.  In this case I am going to sentence this young man to prison but I think weight can be put upon the factors that I have referred to – his guilty pleas, remorse, his age, the strength of his family connection (which must be a factor that enhances the likelihood of successful rehabilitation), the quality of the restorative justice conference and the elements envisaged within the language of s 10 of the Sentencing Act.  These factors combine together in my view, to enable me to significantly reduce the otherwise justifiable term of prison.  I intend to sentence at a level which enables me reserve to leave for a home detention application.  Section 97 of the Sentencing Act says that the Court may grant an offender leave to apply for home detention….. only if satisfied that it would be appropriate….. taking into account the nature and the seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statement.

The nature and seriousness of the offence militate against reserving leave but the circumstances and background of the offender I think militate in favour and the victim attitudes certainly do – as demonstrated in the restorative justice conference.

[29] Well then Mr Folaumoeloa, I ask you to stand up now.  I am going to pass sentence upon you.

[30] On this appalling aggravated robbery which I do believe, with the benefit of hindsight now, you must look back on with the shame that you and your family have expressed, I sentence you to 10 months’ imprisonment.

[31] I reserve leave for a home detention application.  I cannot of course, ensure that will be granted – that is a matter for another Board.

[32] I will fix parole on standard and special conditions to sentence end date.  The special conditions are that you undertake assessment for drug and alcohol issues and thereafter any course or counselling as directed, and that you will undertake assessment for any special criminogenic programme or Straight Thinking or an equivalent and, if suitable, attend and complete that.

[33] In respect to the other matters I will now quickly go through those without further comment.

[34] The taking of the motor vehicle and theft of the petrol, three months’ imprisonment; unlawfully getting into a motor vehicle, one month’s imprisonment; theft of the cigarettes, convicted and ordered to come up for sentence if called upon within 12 months and a reparation order of $12; breach of bail, convicted and discharged.

[35] Finally, as part of the family’s promise to the victims in the aggravated robbery, a donation of $120 (being this young man’s share of reparation) is to be made at the request of the victims to a youth group in the community.  I am assured by counsel’s undertaking that he will uplift from the parents of the prisoner (who are present today) $120 and, for the peace of mind of the Court and for the integrity of the promise, ensure it is passed on to a Catholic youth group in the area in which the prisoner and his family reside.

 

S A Thorburn

District Court Judge


 

October 2004

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