Abstract
The emergence of alternative pathways to justice, especially for offences heard in lower courts constituted by a magistrate, has been an instrumental development relocating the victim into the criminal trial process. This chapter will trace those developments, which have provided victims a role in restorative processes that now replace the trial altogether, or substitute for custodial or more onerous non-custodial terms, in the sentencing process. The procedural aspects of pre- and post-sentence intervention demonstrate how the availability of restorative programs across various phases of the traditional criminal trial process modify how we understand proceedings in the local and Magistrates’ courts. Although certain sex, firearm, or especially violent offences may be excluded, depending on jurisdiction, most public order, property, motor vehicle, or offences of interpersonal violence are included.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Restorative interventions including those that involve the victim directly are explicitly recognised under the Sentencing Act 2002 (NZ) s 10(4): ‘Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until: (a) compensation has been paid; or (b) the performance of any work or service has been completed; or (c) any agreement between the victim and the offender has been fulfilled; or (d) any measure proposed under subsection (1)(d) has been completed; or (e) any remedial action referred to in subsection (1)(e) has been completed.’
- 2.
Also see Criminal Justice Act 2003 (UK) Sch 23.
- 3.
See contra. Evaluation of the NSW Domestic Violence Intervention Court Model. Birdsey and Smith (2012) indicate that some but not all objectives of the court mode were reached.
- 4.
For comparison, see recent amendments to the current scheme for youth referral in England and Wales under the Criminal Justice and Courts Act 2015 (UK) ss 41–45. The Explanatory Notes indicate ‘The offender must agree with the panel a contract of rehabilitative and restorative elements to be completed within the sentence. Where the victim and the offender consent, the panel can be used to deliver a restorative justice conference. A restorative justice conference offers victims the opportunity to be heard and to have a say in the resolution of offences, including agreeing restorative or reparative activity for the young offender.’ (Stationary Office 2015: 53).
- 5.
Participation in Forum Sentencing in NSW is available for adult offenders in Local Courts, where the court considers a conviction is likely and the offender will be required to otherwise serve a sentence of imprisonment (which may be suspended), an intensive correction order or home detention, perform community service work, or enter into a good behaviour bond. Eligible offences include: common assault; break and enter; malicious damage; drink driving; theft (shoplifting, possess stolen property, steal from employer); and fraud.
References
Birdsey, E. M., & Smith, N. (2012). The Domestic Violence Intervention Court Model: A follow-up study. Crime and Justice Bulletin, January 2012, 155, 1–16.
Braithwaite, J. (2003). Principles of restorative justice. In A. von Hirsch, J. V. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigm? (pp. 1–20). Oxford: Hart Publishing.
Christie, N. (2015). Widening the net. Restorative Justice: An International Journal, 3(1), 109–113.
Collins, J. (2015). Restorative justice in England and Wales: From the margins to the mainstream. Restorative Justice: An International Journal, 3(1), 129–134.
Crimes (Sentencing Procedure) Act 1999 (NSW).
Damaška, M. (2009). The International Criminal Court between aspiration and achievement. UCLA Journal of International Law and Foreign Affairs, 14(1), 19–35.
Juvenile Justice NSW. (2010). Guidelines for the management of conduct of conferences. Department of Juvenile Justice, NSW.
Ministry of Justice. (2014). Pre-sentence restorative justice (RJ). UK Government.
Morris, A. (2002). Critiquing the critics: A brief response to critics of restorative justice. British Journal of Criminology, 42(3), 596–615.
Murray, S. (2009). Keeping it in the neighbourhood? Neighbourhood courts in the Australian context. Monash University Law Review, 35(1), 74–95.
Pena, M., & Carayon, G. (2013). Is the ICC making the most of victim participation? The International Journal of Transitional Justice, 7(3), 518–535.
Poynton, S. (2013). Rates of recidivism among offenders referred to forum sentencing. Crime and Justice Bulletin: Contemporary Issues in Crime and Justice. BOCSAR, NSW Government, 172, July 2013.
R v Annesley (1976) 1 WLR 106.
Restorative Justice Council. (2014). Restorative justice in the magistrates’ court information pack, December 2014.
Stationary Office. (2015). Explanatory notes for the criminal justice and the Courts Act 2015 (UK). UK Parliament.
van Dijk, J. (2013). Victim-centred restorative justice. Restorative Justice: An International Journal, 3(1), 426–429.
Van Ness, D. (2003). Proposed basic principles on the use of restorative justice: Recognising the limits and aims of restorative justice. In A. von Hirsch, J. V. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigm? (pp. 157–176). Oxford: Hart Publishing.
Wemmers, J-A. (2009). Where do they belong? Giving victims a place in the criminal justice process. Criminal Law Forum, 20(4), 395–416.
Wemmers, J-A. (2010). Victim rights and the International Criminal Court: Perceptions within the court regarding the victims’ right to participate. Liden Journal of International Law, 23(3), 629–643.
Zappala, S. (2010). The rights of victims v the rights of the accused. Journal of International Criminal Justice, 8(1), 137–164.
Author information
Authors and Affiliations
Copyright information
© 2016 The Author(s)
About this chapter
Cite this chapter
Kirchengast, T. (2016). Alternative Pathways: Restoration, Intervention and Community Justice. In: Victims and the Criminal Trial. Palgrave Studies in Victims and Victimology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-51000-6_3
Download citation
DOI: https://doi.org/10.1057/978-1-137-51000-6_3
Published:
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-137-50999-4
Online ISBN: 978-1-137-51000-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)