R v Forrest [2016] ACTSC 321

Supreme Court of the ACT|2016-11-28|Before: Refshauge ACJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Michael Paul Forrest be referred to restorative justice

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Restorative justice - explanation of restorative justice - referral for restorative justice - consideration - reasons for referring offender to restorative justice

STATUTE - INTERPRETATION - Crimes (Restorative Justice) Act 2004 (ACT) - 'relates to' - 'relates to money and property' - 'eligible victim' - 'capable' - division of offences into serious and less serious offences - 'eligible offender'- suitability - referring entity - explanation of restorative justice to eligible offender - 'accepting responsibility' - relevant consideration for sentencing

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)

Criminal Code 2002 (ACT), s 308, 310, 311, 312, 313, 318(1), 403

Domestic Violence and Protection Orders Act 2008 (ACT), ss 13(2), 90, Sch 1

Explanatory Statement, Crimes (Restorative Justice) Bill 2004 (ACT)

Cameron v The Queen [2002] HCA 6; 209 CLR 339

Della-Vedova v The Queen [2009] NSWCCA 107

Fares v Longmore (1998) 148 FLR 255

Fusimalohi v The Queen [2012] ACTCA 49

Johnson v The Queen [2016] NZCA 144

Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275

R v McCurley [2016] ACTSC 219

Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014)

Don Weatherbourn and Megan Macadam, 'A Review of Restorative Justice Responses to Offending' (2013) 1 Evidence Base

Legal Aid ACT (Accused)

1. On 5 August 2016, the accused, Michael Paul Forrest, was arraigned on an indictment containing 37 counts, being 12 counts of theft, 11 counts of causing damage to property belonging to someone else, eight counts of burglary, one count of aggravated burglary, two counts of dishonestly receiving stolen property, two counts of dishonestly taking and using a motor vehicle without the owner's consent, and one count of aggravated robbery.

2. The matter has been listed for sentence on 15 February 2017.

3. Mr Forrest requested that the offences to which he has pleaded guilty be referred for restorative justice.

4. In 2004, the ACT Legislative Assembly enacted the Crimes (Restorative Justice) Act 2004 (ACT) establishing a regime for the referral of offences to restorative justice by various criminal justice entities. By the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT), the Legislative Assembly substantially expanded the operation and reach of the Crimes (Restorative Justice) Act.

5. In Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) at 41, the authors describe restorative justice as follows:

Restorative justice has been commonly associated with mediated encounters between victims and offenders - and in some cases their supporters - where they discuss what happened in relation to harmful behaviour and why it happened and determine what offenders will do to make amends. More broadly, restorative justice comprises of principles that promote the more inclusive, comprehensive and satisfying resolution of the effects of harmful behaviour. It seeks the restoration of victims, offenders and society through the application of these principles in processes dealing with the aftermath of wrongful behaviour generally. The most well-known and widespread application is within, or in cooperation with, modern criminal justice systems. There is growing evidence that there is value of this approach for victims, offenders and the justice system.

6. The Explanatory Statement to the Bill which became the Crimes (Restorative Justice) Act, also explains:

Restorative justice does not have a precise, scientific, definition. Restorative justice is a methodological tool which aims to address unresolved issues and emotions, experienced by victims, offenders and their families which cannot be addressed by the court because of the objective nature of the court's role.

The restorative justice method used in the Bill aims to provide the victim with a means to better understand the crime and the offenders behaviour; to enable the victim to regain confidence (or restore their emotional balance) by experiencing the offender in a context where the offender is unable to hold power over the victim; and to allow the victim to express the effect of the crime in a formal setting.

The restorative justice scheme also aims to have a constructive impact upon the offender. The Bill would require offenders to take responsibility and to engage constructively to make amends for their wrongdoing. It provides offenders with an opportunity to re-engage with the community through a redemptive action with the victim, public administration and people closely associated with the victim and the offender.

The key tool used in the government's Bill to achieve the objectives of restorative justice is a facilitated conference between the victim and the offender to discuss the offence, the impact of the offence and what can be done to repair the harm to the victim, the community, or both.

Research on restorative justice, particularly in the area of offender recidivism is in an unsatisfactory state. At present, at best it can be said that there is evidence that suggests that for some offenders, participation in a restorative justice conference may promote decreased recidivism. Further research is needed on the effect of restorative justice on recidivism using stronger research designs. Research needs to identity for whom restorative justice works, in what circumstances it works and why it works.

8. Other research suggests that victims, particularly victims of offences of violence, are generally more satisfied with restorative justice processes than with the court process. See Don Weatherbourn and Megan Macadam, 'A Review of Restorative Justice Responses to Offending' (2013) 1 Evidence Base .

9. Section 8 of the Crimes (Restorative Justice) Act sets out when a referral to restorative justice is available. It requires a number of elements; these include that there be an eligible victim. Victim is defined in the same way as in the Victims of Crime Act 1994 (ACT), which definition includes a person who suffers harm in the course, or as a result, of the commission of an offence or as a result of witnessing the commission of an offence. See s 6 of the Victims of Crime Act. The offence must be one to which the Crimes (Restorative Justice) Act applies (a relevant offence). The relevant offences are set out in Pt 4 of the Crimes (Restorative Justice) Act, as to which, see below (at [19]-[22]). To be eligible, a victim must also be 10 years of age or more.

10. Section 17 of the Crimes (Restorative Justice) Act further requires that the victim must be "capable of agreeing to take part in restorative justice". The section does not explain exactly what that means nor how that is to be ascertained. Capable, in this sense, could mean physically capable, legally capable, or intellectually capable.

11. The Explanatory Statement for the Bill which became the Crimes (Restorative Justice) Act, refers to the section as requiring that the victim be "intellectually capable" of agreeing to participate in restorative justice.

12. Thus the degree of ambiguity in the meaning of "capable" may be resolved by reference to the Explanatory Statement; it seems to me that it at least means intellectually capable as stated in the Explanatory Statement: s 42 of the Legislation Act 2001 (ACT).

13. Given that the Crimes (Restorative Justice) Act requires the victim to be at least 10 years old, implying that the victim need not be over the age of 18 years, there seems no basis for a finding that the requirement means that a victim has no legal impediment to agreeing to take part in restorative justice. Therefore I do not consider the word means legally capable. I am unable to see what legal impediment may be, given that an age above 10 years old is apparently no bar.

14. I next turn to whether the requirement of such capability might include a physical capability. Physical capability, such as death, being overseas and unable or being unwilling to return, or, for example, being bed ridden, would be relevant to whether the person was capable of taking part in the conference. That however is to be contrasted with the requirement that the person was capable of agreeing to take part in the conference, which is the requirement. Such person would be capable of agreeing to take part in a restorative justice conference, though ultimately physically prevented from doing so. Again, I see no basis for interpreting the meaning of "capable" as "physically capable".

15. Accordingly, I am satisfied that "capable of agreeing to part in restorative justice" means simply being intellectually capable of so agreeing.

16. This raises a question of how one determines such intellectual capability, especially as, particularly in the case of proceedings in the criminal courts such as this Court, it is unlikely that the victim will be present when a request for referral to restorative justice is made, though sometimes they will be present. The Court will not then be able to assess directly the intellectual capacity of the victim.

17. It seems to me that, ordinarily, the Court will have to rely on material otherwise provided to the Court, such as, the statement of facts tendered by the Crown on sentence. A statement given by a victim to police may also be in evidence before the Court. A reasonable inference from such a witness statement would be that that person was sufficiently intellectually capable that they could agree to take part in restorative justice. This may also be an inference available from a Victim Impact Statement, under Pt 4.3 of the Crimes (Sentencing) Act 2005 (ACT), if available.

18. Thus, it is necessary for the referral of an offence to restorative justice that there be an eligible victim, which means a person over the age of 10 years who has suffered harm in the relevant way from an offence which is specified under Pt 4 of the Crimes (Restorative Justice) Act, and who is intellectually capable of agreeing to take part in restorative justice.

19. The next requirement is that there be an eligible offender. This is provided for in s 19 of the Crimes (Restorative Justice) Act. It requires that the Crimes (Restorative Justice) Act applies to the offence and the offender under Pt 4 of that Act.

20. That Part provides that the Crimes (Restorative Justice) Act applies to certain offences under certain conditions. For this purpose, it divides offences into serious offences and less serious offences. A serious offence is defined as an offence punishable by imprisonment for a period longer than, if the offence relates to money or other property, 14 years, or, in any other case, 10 years. A less serious offence is defined simply as an offence that is not a serious offence.

21. It applies to less serious offences committed, even if committed before the commencement of the Crimes (Restorative Justice) Act, by a young offender - an offender older than 10 but younger than 18 - or an adult offender, but not if the offence is a domestic violence offence or a sexual offence. These terms are defined in s 12 of the Crimes (Restorative Justice) Act. Briefly, a domestic violence offence is one mentioned in ss 13(2) or 90 or in Sch 1 to the Domestic Violence and Protection Orders Act 2008 (ACT), and a sexual offence is an offence under Pt 3 of the Crimes Act 1900 (ACT).

22. The Crimes (Restorative Justice) Act also applies to serious offences committed by a young offender or an adult offender, but only where the offender has been charged with the offence and has either pleaded guilty to the offence or has been found guilty of the offence, whether or not the offender is convicted or sentenced for the offence. Again, domestic violence and sexual offences are excluded.

23. If Pt 4 of the Crimes (Restorative Justice) Act applies to the offence, the offender is an eligible offender if the offender accepts responsibility for the commission of the offence, is at least 10 years old, and is capable of agreeing to take part in restorative justice.

24. As with a victim, I take it that "capable of agreeing to take part in restorative justice" means being intellectually capable as I have explained above (at [10]-[15]).

25. As to accepting responsibility, for the offence, a plea of guilty would ordinarily be sufficient proof of this. Section 20 of the Crimes (Restorative Justice) Act provides that an offender can take responsibility for the commission of an offence even if he or she pleads not guilty. The concept of "an offender" who is able to plead not guilty (and, if acquitted, not an offender) is rather a challenge, but the word seems to be used in this context in the sense of a defendant or an accused person.

26. It is not easy to see how a person can take responsibility for the commission of an offence and yet plead not guilty. Again, perhaps "offence" in this context means something other than the usual meaning in the criminal law. It may mean, for example, the physical acts that constitute the offence; cf R v Ardler [2004] ACTCA 4; 144 A Crim R 552. Thus, a person may accept responsibility for hitting another person but deny that it was an assault because it was accidental. I do not have to express a final view on this issue in this case.

27. Finally, restorative justice is available if the Director-General decides that restorative justice is suitable for the offence. Suitability is dealt with under Pt 7 of the Crimes (Restorative Justice) Act. It appears from the construction of the Crimes (Restorative Justice) Act that suitability is determined after a referral has been made. Thus, s 30 provides that such a decision is made only if the Director-General is satisfied that there is an eligible victim and an eligible offender. These, of course, can only be decided on a case-by-case basis and it would not make sense for the determination by the Director-General that the offence is suitable to be made prior to the making of a referral.

28. Under Table 22 to s 22 of the Crimes (Restorative Justice) Act, the Supreme Court of the ACT is a referring entity and may make a referral of an offence for restorative justice if an eligible offender pleads guilty or is found guilty of an eligible offence. The Supreme Court may refer the offence for restorative justice after the offender pleads guilty or is found guilty of the offence, whether or not the offender has been convicted or sentenced, but before the end of the proceedings. That would seem to suggest that a referral may be made after sentence has been imposed but before the Court then adjourns, thereby concluding the proceedings.

29. Before such referral, however, the Court must be satisfied under s 24 of the Crimes (Restorative Justice) Act that:

(a) the offender is an eligible offender (see [23] above);

(b) there is an eligible victim or parent in relation to the offence (see [18] above); and

(c) an explanation has been given under s 25 (of the Crimes (Restorative Justice) Act) to the eligible offender before the offender agrees to take part in restorative justice.

30. Where the referral is made by a court, however, s 27 of the Crimes (Restorative Justice) Act permits the Court, alternatively to being satisfied of the conditions in s 24 of the Crimes (Restorative Justice) Act, to refer an offence for restorative justice if it considers that it is appropriate to refer the offence for restorative justice and an explanation has been given under s 25 of the Crimes (Restorative Justice) Act. The Act does not explain further the basis on which the Court may be satisfied if there is no eligible offender or eligible victim (or parent) or why this alternative referral is available. The Explanatory Statement is of no assistance on this issue. Again, in this case, I do not have to resolve the issue as it does not arise.

31. Section 25 of the Crimes (Restorative Justice) Act sets out the terms of the explanation required to be given before a referral can be made. The section is in the following terms:

Before an offence is referred for restorative justice, the referring entity must ensure that reasonable steps are taken to explain to the eligible offender (in language that the offender can readily understand) -

(a) the purpose of restorative justice generally and for the particular offence; and

(b) the nature of restorative justice, including the following:

(i) the nature of a restorative justice conference;

(ii) who may take part in a restorative justice conference;

(iii) the nature of a restorative justice agreement; and

(c) that the offender may seek independent legal advice about taking part in restorative justice; and

(d) that no-one is under an obligation to take part, or continue to take part, in restorative justice after it has started; and

(e) if the offender has not entered a plea for the offence - that the acceptance of responsibility for the commission of the offence by the offender for the purpose of restorative justice does not prevent the offender from pleading not guilty to the offence; and

(f) if a sentence-related order has not been made for the offender - that, if the offender is found guilty of the offence, a court, in sentencing the offender -

(i) may consider whether the offender accepts responsibility for the offence to take part in restorative justice, but is not required to reduce the severity of any sentence as a result; and

(ii) must not consider whether the offender has chosen not to take part or not to continue to take part, in restorative justice.

32. In addition, before a court can refer an offence for restorative justice, the prosecution and any lawyer representing the offender must agree that the offence should be referred to restorative justice.

33. In summary, this Court, which is a referring entity under the Crimes (Restorative Justice) Act, may refer an offence for restorative justice if:

(a) the offence is a less serious offence, or is a serious offence for which the offender has been charged and has either pleaded guilty or been found guilty, but the offence is not a domestic violence or sexual offences at this time;

(b) the offender is over 10 years old and intellectually capable of agreeing to take part in restorative justice;

(c) there is a person who has been harmed by the offence or by witnessing the commission of the offence, who is over 10 years old and is intellectually capable of agreeing to take part in restorative justice;

(d) the prosecutor and a lawyer representing the offender has consented to the referral; and

(e) restorative justice has been explained to the offender in the terms of s 25 of the Crimes (Restorative Justice) Act.

34. I note that, even if the matters in paragraph [33](a), (b) and (c) do not apply, the Court may refer an offence for restorative justice if it is satisfied under s 27 of the Crimes (Restorative Justice) Act that it is appropriate to do so, so long as paragraph [33](d) and (e) apply.

35. I apply these matters to the request that has been made to me for a referral of Mr Forrest to restorative justice.

36. The first issue to be determined is whether Mr Forrest is an eligible offender. To find that, I must determine that the offences are either a less serious offence or a serious offence. That depends, as noted above (at [20]), on the length of the maximum imprisonment to which an offender may be sentenced. In turn, that also depends on whether the offence is one that "relates to money or property".

37. I am satisfied that each of the offences committed by Mr Forrest is an offence which "relates to money or property". "Relates to" is, as pointed out in Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285, "a wide term", as the High Court has acknowledged, and "it will depend upon the context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice".

38. Clearly, offences of theft, dishonestly receiving stolen property, and dishonestly receiving stolen property are offences that relate to money or property.

39. It seems to me that the Crimes (Restorative Justice) Act is intended to be beneficial and to be interpreted to favour opportunities for both victim and offender to access restorative justice processes.

40. Burglary committed when a person enters or remains in a building as a trespasser with intent to commit theft of any property in the building is, it seems to me, an offence that relates to money or property because of the intention of the trespass. See Fares v Longmore (1998) 148 FLR 255 at 261.

41. To damage property is to interfere with the property in some way. Self-evidently, it is an offence relating to money or other property.

42. Accordingly, I am satisfied that each of burglary and damaging property is an offence that "relates" to money or other property.

43. Each of the offences committed by Mr Forrest are prohibited by the Criminal Code 2002 (ACT): theft (s 308), damaging property (s 403), aggravated robbery (s 310), dishonestly taking and using a motor vehicle without consent of the owner (s 318(1)), burglary (s 311), aggravated burglary (s 312), and receiving stolen property (s 313).

44. Each of these offences are punishable by a maximum penalty that includes a term of imprisonment that, in each case, other than for the offences of aggravated burglary and aggravated robbery, is not more than 14 years. In the case of aggravated burglary, the term of imprisonment is 20 years; in the case of aggravated robbery, the term of imprisonment is 25 years.

45. Accordingly, each of the offences, other than aggravated burglary and aggravated robbery, is a less serious offence and Mr Forrest is, therefore, eligible for restorative justice in respect of those offences. In relation to the offences of aggravated burglary and aggravated robbery, which are serious offences, Mr Forrest has been charged with and pleaded guilty to them, so he is eligible for restorative justice in respect of each of them also.

46. Accordingly, he is an eligible offender under the Crimes (Restorative Justice) Act.

47. Whether there is an eligible victim is rather more problematic. No victim appeared before me and I did not have any Victim Impact Statement. I had, however, a draft Case Statement (see R v Goodwin [2009] ACTSC 111; 233 FLR 473 at 478-9; [26]- [35]. I also had a police statement of facts in relation to the aggravated robbery and some associated offences.

48. From these, I was able to ascertain that, with one exception, each of the victims of Mr Forrest's crimes was the owner, or owner and driver of a motor vehicle, or the partner or spouse of such a person. This satisfies me that each of those victims is over the age of 10. The one exception was a victim, who was the sister of such a person, but the context, for example, that she had her own key to the house and she called the police, made it clear to me that she was, I could infer on the balance of probabilities, over the age of 10.

49. In addition, I had a list of property stolen from a number, but not all, of the victims. These included Social Club Membership Cards, Bank Credit Cards, Laptop computers, a Costco Membership Card, Driver Licences, Qantas Frequent Flyer Cards, and Business Cards.

50. It was also clear that the facts stated must have come from the majority if not all of the victims. For example, statements about a victim driving home, leaving the car locked and so on are details only known to the victim. That the victims were capable of giving such information to police, combined with the other facts, such as car ownership and driving, as well as the personal and business belongings, is relevant to a consideration of the capacity of the victim to agree to take part in restorative justice.

51. From these facts, I am satisfied that, on the balance of probabilities, each of the victims is intellectually capable of agreeing to participate in restorative justice.

52. Thus, I can find that there is an eligible victim for each offence, that the victim is at least 10 years old, and that the victim is capable of agreeing to take part in restorative justice.

53. Both counsel for Mr Forrest and the prosecution consented to a referral for a restorative justice. Mr Forrest's counsel, Mr J De Bruin, confirmed to me that he had explained the matters required by s 25 of the Crimes (Restorative Justice) Act to be explained to Mr Forrest. In those circumstances it did not seem to me that I was required to explain them to him as well.

54. It may be helpful were the restorative justice unit to prepare a document which sets out the information required to be explained in s 25 of the Crimes (Restorative Justice) Act and which would helpfully form the basis of a discussion that an offender may have with his or her counsel or solicitor, where the offender is willing to participate in a restorative justice process.

55. I also heard from Ms K Lokan, an officer of the restorative justice unit of the Justice and Community Safety Directorate, who assured me to my satisfaction that, notwithstanding that there were 37 offences and 46 victims, this was a manageable process that the unit would be prepared to undertake.

56. As can be seen, the process of referral can be quite complicated, particularly with many offences and many victims, but the likely satisfaction from the process if successful, particularly for the victims, is such that, where it can reasonably be done, the Court should persevere so as to make a referral.

57. In this case, I note that, while Mr Forrest had pleaded guilty, he has not been sentenced. That would be the usual case for referral by the Court. So long as referral is made prior to the completion of proceedings, however, it can still be made even after sentence.

58. In seems to me that restorative justice can have benefits even after an offender is sentenced because of the value to victims, but also because of the likelihood that participation in such a process will assist the rehabilitation of the offender, which ultimately, is for the protection of the community. See Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32].

59. I note that Mr Forrest is to be sentenced on 15 February 2017. By that time, the Director-General will, under s 28 of the Crimes (Restorative Justice) Act, have forwarded to the Court a written report about the outcome of the restorative justice for the offending.

60. I note that under s 33 of the Crimes (Sentencing) Act 2005 the Court must consider whether an offender has accepted responsibility for an offence to take part in restorative justice under the Crimes (Restorative Justice) Act. I note, however, that s 20(2) of the Crimes (Restorative Justice) Act does not require a court to reduce the severity of any sentence it may make for the offender because of that. It appears, however, that it may do so.

61. Nevertheless, acceptance of responsibility, especially by the entry of a plea of guilty and remorse, which may well be evidence of an acceptance of responsibility, is an important factor in sentencing. See Fusimalohi v The Queen [2012] ACTCA 49 at [31]; Della-Vedova v The Queen [2009] NSWCCA 107 at [51]. It is, under s 33(1)(w) of the Crimes (Sentencing) Act a sentencing consideration. Indeed, it is regarded as a very relevant consideration. See Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 343; [11], [14].

62. These considerations are common matters for sentencing not necessarily dependent on any outcome from the restorative justice process.

63. A willing and successful participation in restorative justice may well be regarded as indicative of remorse as found, for example, by Burns J in R v McCurley [2016] ACTSC 219 at [13]. That, however, may not necessarily be so and a willingness to participate in itself may not be sufficient evidence of remorse: Johnson v The Queen [2016] NZCA 144 at [27].

64. Accordingly I made a referral for restorative justice. These are my reasons for doing so.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

24 February 2017 Paragraph 5: last line omit "the" and substitute "there is" before the word, "value of this approach".

Paragraph 7: add the word "can" after "it" in the second line of the quotation from "Non-Adversarial Justice".

Paragraph 34: in the first and fourth lines omit "35" and substitute "33".

Paragraph 42: replace the paragraph with the following:

42. Accordingly, I am satisfied that each of burglary and damaging property is an offence that "relates" to money or other property.

15 June 2017 Paragraph 13: The last sentence should be omitted and the following substituted:

I am unable to see what legal impediment may be, given that an age above 10 years old is apparently no bar.

By the Crimes (Sentencing and Restorative Justice) Amendment Act 2016(ACT)

Domestic Violence and Protection Orders Act 2008(ACT)

(Restorative Justice) Act 2004

(Sentencing) Act 2005

(Sentencing and Restorative Justice) Amendment Act 2016

Violence and Protection Orders Act 2008

By the Crimes (Sentencing and Restorative Justice) Amendment Act 2016(ACT)

(Sentencing and Restorative Justice) Amendment Act 2016

Domestic Violence and Protection Orders Act 2008(ACT)

(Restorative Justice) Act 2004

(Sentencing) Act 2005

At a glance

Court

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Judgment (112 paragraphs)

R v Forrest [2016] ACTSC 321 (28 November 2016)

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Legislation Cited (14)

Cases Cited (3)