Restorative Justice in RMA Cases

I facilitate restorative justice conferences in resource management prosecutions. A Restorative Justice conference occurs when the defendant has pleaded guilty to the offence and seeks to meet with the ‘victim’. This is known as a ‘facilitated conference’.

The use of restorative justice in resource management prosecutions is entirely voluntary but is encouraged. The court will not direct that a conference will take place but after a guilty plea is entered, it will adjourn the case to allow a conference to occur and to receive a report from it.

What is restorative justice?

Restorative justice is a process for resolving crime that focuses on redressing the harm experienced by victims, while also holding the offender to account for what they have done. View examples of cases.

What is the purpose of restorative justice?

The purpose of the restorative justice conference is to bring the defendant together with the parties most affected by the wrongdoing and to encourage them to address the harm done and ways of putting right the wrong. Where an outcome is agreed by the parties (which is almost always the case) it is taken into account by the judge in sentencing the defendant.

What are the benefits of restorative justice?

The benefits of restorative justice in these cases are well recognised and include:

  • Involvement of people adversely affected by the offending, as victims or community representatives, who are able to ask questions, tell the defendant of the effects of the offending on them, receive personal apologies and participate in finding ways to put “right the wrong”.
  • Deterrence achieved through public education, for example when a defendant publishes an article in a community paper or pays for advertisements about environmental projects.
  • Accountability and taking responsibility (the first two purposes of sentencing under section 7 of the Sentencing Act, as well as denunciation, achieved in a direct face to face manner) (Auckland City Council v Shaw [2006] DCR425)
  • A greater emphasis on prevention than traditional court processes (for example Waitakere City Council v Stanic District Court Auckland (CRI 2004 – 090 – 005790, 10 July 2006 McElrea J.)
  • Defendants able to be reintegrated into the community and acknowledged as good neighbours after completing a remedial plan.

STEPS IN THE RESTORATIVE JUSTICE CONFERENCE PROCESS

PRE-CONFERENCE

The defendant pleads guilty to the charge/s. The parties agree to hold a restorative justice conference prior to sentencing. The case is adjourned to allow time for the restorative justice conference to take place.

The parties appoint a trained facilitator.

The parties agree who needs to attend the conference and an invitation is sent out to all affected parties inviting them to a meeting, usually to be held two weeks out from the date of the invitation. (The local authority will have representatives at the meeting, including  any enforcement officers involved and the defendant should have support people with him/her).

RESTORATIVE JUSTICE CONFERENCE MEETING

The meeting is usually in two phases:

Phase One

The meeting commences with a welcome by the facilitator, and explanation of the purpose of the meeting and is possibly followed by a karakia or prayer where appropriate. The summary of facts and a general explanation of the background is then read out or paraphrased by the prosecuting authority. If there are aspects of the summary which are not agreed then the defendant gets an opportunity to specify those matters. There is then an opportunity for all the other participants at the conference to outline their concerns regarding the offence, followed by a response by the defendant.

Phase Two

This stage of the process involves an exploration of a possible means of reparation or redressing the harm. All options need to be explored and ideally, an agreement is reached on an outcome or plan to be provided to the sentencing judge by the facilitator. The meeting is closed.

On occasions a second meeting needs to be convened for the parties to finalise or agree an outcome or plan. This occurs where outcomes are identified at the first meeting but there is a need to develop them and to confer with experts or other stakeholders before they can be agreed.

SUMMARY OF RESTORATIVE JUSTICE CASES

The following is a  summary of some of the restorative justice conferences I have faciltated. It outlines the conference outcomes and  the sentence imposed.

1.   Auckland Regional Council v Times Media Group Limited and Anthony Cook
(DC Auckland CRN 2084004885 and 889 16/06/03 – Judge McElrea)  

This case involved fumes with an offensive odour and substantial health effects on neighbours from a printing plant. The conference outcome included a private and public apology, a payment to ARC for the testing of health factors, tree planting around the site, a donation to the local college for a native tree planting project, a new entrapment device (previously agreed to)  within two months and payment of costs of the facilitator.

The court considered that some crucial elements of justice had already been fulfilled and fined Times Media Group Limited  $5,000.00 and ordered it to pay $656.00 to the Council for investigation costs. It also fined the Director of the company $2,500.00.

2.   Waikato Regional Council v Huntly Quarries and Wedding
(DC Auckland, CRN 2024011394 and 401, 28/10/03 – Judge McElrea) 

This involved discharges of dirty water from a quarry into the Waikato River after heavy rain. The conference outcome included payment of costs of  the facilitator and a donation to the Lower Waikato River Enhancement Society in lieu of a fine. The sentence imposed was a discharge without conviction for the Director. The company was fined on one charge of $5,000.00. On the other charge the company was convicted and ordered to come up for sentence if called on within six months; if the defendant made a contribution of $7,500.00 to the Lower Waikato River Enhancement Society in that time there would be no further action.

3.   Waikato Regional Council v Matamata Piako District Council
(DC Morrinsville, CRN 04039500061 and 63, 26/11/04 & 6/05/05 – Judge Thompson) 

This case involved discharges of sewage because of mishandled maintenance  work. The steps taken by the defendant through the restorative justice process were an apology, payment of part of the costs of the Regional Council, payment of costs of the facilitator and a sum to a project involving remediation of septic tanks, the quantum of which could not be agreed in the conference but which was fixed by the court at $15.000.00. The defendant was convicted and discharged.

4.   Waikato Regional Council v PIC New Zealand Limited
(DC Auckland, CRN 4057500082 and 79, 29/11/04 – Judge McElrea) 

This case involved two charges for the discharge of pig effluent. The defendant paid clean up costs and put new systems in.  As part of the restorative justice process it made an apology, paid $15,000.00 towards a tree planting project, paid the costs of the facilitator and all of the Council costs of approximately $24,500.00. At court it was convicted and discharged.

The court considered that some crucial elements of justice had already been fulfilled and fined Times Media Group Limited  $5,000.00 and ordered it to pay $656.00 to the Council for investigation costs. It also fined the Director of the company $2,500.00.

5.   Waikato Regional Council v Hamilton City Council & Perry Environmental Limited
(DC Hamilton, CRN 4019500677 and 686, 1/03/05 – Judge Whiting)  

This case involved the breach of consent condition which required that rubbish be covered at a landfill. The defendants agreed during the restorative justice conference to make an apology to the neighbours, to pay the costs of the facilitator and to undertake various steps to avoid the problem in the future including paying for fly screens for neighbours at a total cost of approximately $33.000.00.

At sentencing the Hamilton City Council  was convicted and fined $4,700.00 and Perry Environmental Limited were convicted and fined $12,200.00.

6.   Auckland City Council v L & L Company
(DC Auckland, CRN 04004502283, 11/04/05 – Judge McElrea) 

This case  involved the destruction of two exotic trees and cutting of another exotic tree. The steps taken by the defendant through the restorative justice process were an apology to the neighbour, payment of costs of the facilitator and $8,000.00 spent on landscaping the property as well as a $3,000.00 contribution to the local residents association for an environmental project. In sentencing the company director was discharged without conviction and the company was convicted and ordered to pay costs of $2,900.00.

7.   Auckland City Council v GB Shaw and B&C Shaw Ltd
(DC Auckland, CRN 20050040131612, 2/03/06 – Judge Mc Elrea)

This case involved the felling of a protected pohutukawa tree by a developer for gain. At the conference it was agreed that the defendant would plant a new pohutukawa tree on the property, pay for an arborist to maintain it for 5 years under an enforcement order, make a donation of $20.000to the community for the purchase of 200 trees for planting in the neighbourhood and contribute to Council’s costs. At sentencing the recidivist defendant avoided 3 months imprisonment but was fined $80,000. The company was convicted and fined $25,000 to be paid if it did not pay the voluntary donation for tree planting.

8.   Manukau City Council v Stanic
(DC Auckland, CRN 2004090005790, 10/07/06 – Judge McElrea.) 

The charges related to undertaking motor vehicle repairs and wrecking on a property in contravention of rules of the district plan. At the conference it was agreed that the council would remove the car bodies with nominal costs to be paid by the defendant, an enforcement order would be sought from the court requiring the removal of further car bodies from the property, the defendant would ring his friends and advise that he was no longer conducting mechanical work on the property and a sign would be erected stating that the defendant was not permitted to fix vehicles at the property.

In sentencing it was noted by the judge that the holding of the conference may have been responsible for producing a change in attitude by the defendant. “Prior to that he had simply ignored the Council’s advice and carried on as before but when confronted with the reality of what his offending did to other people he cooperated.”

The defendant was sentenced to 150 hours community work which was stated to be a much reduced penalty had there not been the restorative justice conference and other mitigating factors.

9.   ARC v PVL Proteins Limited
(DC Auckland, CRN 2006069001093, 13/08/07 – Judge McElrea) 

This case related to discharges of contaminants, odour, dust or fumes from a meat rendering plant.

A restorative justice meeting was held but there was neither a guilty plea entered prior to the meeting nor an admission or acceptance of liability. It resulted in an agreement between the company and the ARC that they would work together to try and produce a solution to be notified to the residents and others who attended the restorative justice meeting. Although there was no restorative justice outcome for the court to take into account under section 8 of the Sentencing Act ,there was in the court’s view an offer of amends made through that that process which the court took into account under Section 10 of the Sentencing Act.

10.   Manukau City Council v Claxton Tree Services Limited
(DC Auckland, CRN 2006092012322, 3/09/07 – Judge McElrea)    

This case related to failure to obtain resource consents before pruning  mature oak trees. It was an unusual case in that the property owners who were responsible for pruning were not before the court. It was agreed at the conference that the defendant would look at whether any remedial work was required to the trees and conduct that work at its cost, an apology was given and the costs of the conference were agreed be borne by it. At sentencing the defendant was discharged without conviction.

11.   Auckland  City Council v Treescape Ltd and Akarana Golf Course
(DC Auckland, CRN 07004502567, 14/6/08 – Judge Mc Elrea)

This involved  the removal of trees beyond those covered by the resource consent by other parties against whom the prosecution was not pursued. It was agreed at the conference in view of that circumstance and the remedial  planting work undertaken by the defendants that the parties would all seek to have the charges withdrawn. This charges were withdrawn at the sentencing hearing.

12.   Manukau City Council v Specialised Container Services (Auckland) Limited
(DC Auckland, CRN2008092005800, 16/02/09 – Judge Mc Elrea)

The defendant created a dust nuisance on a property used as a container storage depot. The conference was an opportunity for it to explain the steps it had taken to deal with the nuisance on this and another site and it agreed to take additional measures of ongoing consultation and the payment of compensation and Council costs. At sentencing the defendants approach was commended and it was given a 50 % discount from the fine and credit was also given for the costs of the conference.