THE NATURE OF CONFERENCING
12.1 “Conferencing” describes schemes whereby members of the community become involved in dealing with offenders beyond the normal confines of the criminal justice system. There are many variations of conferencing schemes which have arisen in the past decade; many of them are no more than pilot schemes and are still in a developmental stage.
12.2 Conferencing may occur at one of three stages in the criminal justice system:
- before trial, often as part of a police cautioning power, as a diversion scheme or alternative to prosecution;
- as part of the sentencing process, as an assistance to the court in determining an appropriate sentence; and
- after sentencing, on occasions when victims and offenders desire reconciliation, compensation or some form of future contact.
Submissions on DP 33 considered conferencing schemes as they may occur at any of these stages. The recommendations in this Report relate to conferencing only as part of the sentencing process.
12.3 The Discussion Paper included descriptions of schemes in New South Wales,1 South Australia,2 New Zealand,3 and Canada.4 Other recent Australian programs include the Reintegrative Shaming Experiment (RISE) in the Australian Capital Territory;5 the Cedar Cottage Program, a pre-trial diversion program for child sexual assault offenders in New South Wales which caters for both offenders and their victims;6 victim-offender mediation in Queensland, originally as a pilot scheme7 then as a more wide ranging scheme under the Community Justice Program;8 a non-statutory based scheme, the Juvenile Justice Pilot Project on Group Conferencing, in Victoria;9 and, in Western Australia, the diversionary conferencing scheme under the Young Offenders Act 1994 (WA)10 and mediation between victims and offenders under the Sentencing Act 1995 (WA).11 This list is not exhaustive.12 The New South Wales Government is currently considering a scheme of pre-trial “accountability conferences” involving victims and young offenders.13
12.4 There are two general variants of conferencing schemes, namely family group conferences and those involving mediation between offenders and victims. The two groups are not mutually exclusive and many variations occur. For example some schemes involve attendance by victims by themselves (as in New Zealand), with a supporter (as in South Australia) or a number of supporters (as in Wagga Wagga and Canada), while others make no provision for attendance by victims (as in the case of Community Aid Panels). Most schemes provide for attendance by supporters of the offender, although Community Aid Panels only allow for this with respect to families of juvenile offenders. Most schemes provide for juveniles only, although some do allow for adult offenders (as in Canada and Community Aid Panels).14
12.5 Of the schemes examined in the Discussion Paper, only New Zealand and South Australia have a legislative base (both at the cautioning and sentencing levels), while the Wagga Wagga scheme was based on the police power of cautioning and Community Aid Panels and Canadian circle sentencing are allowed by the courts as part of the sentencing process.
12.6 There are a number of important and positive aspects of conferencing schemes. One of the most positive is their potential to allow greater participation by victims than is traditionally allowed by the criminal justice system. Victim empowerment comes from the opportunity for victims to confront offenders with their account of the impact of the crime, as well as the possibility of reparation and reconciliation. Other positive aspects include that offenders are confronted with an account of the consequences of their action and can take an active role in doing something to make amends. Such an approach is not traditionally available in the criminal justice system.15
12.7 Criticisms of conferencing schemes16 arise largely because of concerns that procedural safeguards and rights which are available under the traditional criminal justice system may not be available under the alternative schemes, which may also be less open to scrutiny, accountability and review. An identifiable and effective community to support both victims and offenders is also considered necessary in most cases for there to be an effective outcome.
RESPONSE TO DP 33
12.8 In DP 33, the Commission saw advantages in the greater use of conferencing as an alternative or adjunct to more traditional procedures within the criminal justice system. We therefore invited submissions on how conferencing schemes could be employed to best effect in New South Wales.
12.9 Submissions which considered conferencing generally supported the concept.17 However, they proposed a variety of approaches depending on their view of the aims of conferencing and its most appropriate form.
12.10 Most submissions supported a focus on both victims and offenders,18 although some supported a greater focus on offenders, but not to the exclusion of victims.19 One submission saw the aim of conferencing as being to address victims’ needs and victims’ losses.20
12.11 Regarding the stages of the criminal justice system at which conferencing should be available, some submissions suggested that it should be available at all stages,21 others suggested that it should be available as a sentencing option.22 Of those who approved of conferencing as part of a pre-trial diversion scheme, some specifically stated that it should only be available for minor offences.23
12.12 It was the opinion of most submissions that conferencing, at least at the post-conviction stage, should be available for consideration in relation to all offenders and offence categories,24 in one case including crimes without direct third party victims such as drug possession and dangerous driving offences.25 One submission proposed that conferencing be available for repeat or serious young offenders as opposed to first or second offenders who were unlikely to re-offend, but specifically excepted sexual assault and domestic violence offences.26 Another submission proposed that conferencing be available only with respect to first and second offences of non-violence.27 Yet another suggested that eligibility for conferencing should not be based too rigidly on criminal history as some offenders who would otherwise benefit, such as Aborigines, may not be able to take part.28
12.13 With respect to other criteria for reference to conferencing, a number of submissions agreed that consent was required from at least some of the parties to the proceedings, including victims, offenders and prosecutors.29 An admission of guilt by the offender was also considered necessary.30 Suggested safeguards included that consent to participate should only be given after an opportunity to obtain proper legal advice;31 that material disclosed during conferencing cannot be made public or used at a subsequent trial;32 that there should be clear provisions to prevent double jeopardy and abuse of process;33 and that conferencing should be court referred.34
12.14 Most submissions agreed that both victims and offenders should be present at conferencing sessions with various numbers of supporters for both,35 with one submission urging an appropriately wide definition of family and community with respect to Aboriginal offenders.36 Several sought specifically to exclude police37 and lawyers38 from the process itself, although one submission considered that police could have a greater role in conferencing at the pre-trial cautioning stage39 and another argued that a police presence was necessary so that participants felt physically safe.40 The Law Society, while supporting the general concept of conferencing with respect to all offences and all offenders, strongly submitted that the courts should be careful to screen out those who might not be appropriate:
Victims or offenders who are ill-equipped for such a process (eg victims who are only concerned with vengeance, or offenders who can only see themselves as a victim and not an offender) may not benefit from this process. Conferencing will be particularly difficult for people without good verbal skills, due to language, educational, personality or intellectual difficulties or who are lacking in family or community support.41
12.15 Opinion was divided as to what sentencing options should be available to a conference, ranging from all options available at law,42 to all non-custodial orders,43 and to a disposition which should not be regarded as a “sentence”.44 Three submissions felt that in at least some instances a sentencing outcome should be recommended back to the referring court.45 There was also general support for legislative recognition of conferencing.46
12.16 Several submissions advocated the involvement of peer community organisations, as opposed to organisations traditionally associated with the criminal justice system or government welfare.47 Others suggested that some form of specialist agency be set up to administer conferencing in New South Wales.48 This agency was generally seen as needing to be quite separate from the traditional criminal justice and government welfare agencies. One submission suggested that an existing agency might administer conferencing schemes.49
12.17 One submission, which highlighted two schemes - the Traffic Offenders Program which is run by a number of volunteers at the direction of ambulance officers, and Community Aid Panels - stated that they were generally regarded as very successful programs “largely because of their informal and community-based structure”.50 Legislative provisions were proposed which could provide some appropriate framework for the operation of the various schemes, in the particular context of the Local Courts:
Approved Activities
1. For the purposes of this Part an approved activity means any one or combination of the following:
(a) a course of education, training or counselling supervised in a manner approved by the court.
(b) an unpaid activity which is for the benefit of the community,
(c) Acts approved by the court relating to reparation or compensation to a person aggrieved by the commission of an offence.
2. (1) Notwithstanding the provisions of s 78(2) of the Justices Act 1901, where a person is charged before a court with an offence punishable by such court, and the person admits the truth of the information, the court may, with the consent of the prosecutor and the person direct the person to participate in an approved activity.
(2) The court may adjourn the proceedings from time to time for the completion of the approved activity and make such orders for bail as it sees fit.
3. (1) Where a court is satisfied that a person has participated in an approved activity, the court may
(a) without finding the offence proved, dismiss the information, or
(b) find the offence proved and proceed according to law. In fixing any penalty the court shall take into account any approved activity in which the person has participated.
(2) A court may satisfy itself as to a person’s participation in an approved activity by any means it considers appropriate.
4. Where a person does not satisfactorily complete an approved activity directed by the court, the court may deal with the person according to s 78(2) of the Justices Act.51
12.18 Similarly, it was suggested during a consultation that the courts could grant an adjournment in the nature of a Griffiths bond52 to allow conferencing to take place and then be informed of the outcome and sentence accordingly. Such a scheme could be sanctioned by a broad legislative power which does not specify what form the conferencing is to take, but which includes necessary procedural protections. The adjournment in such instances would not, of course, be restricted to situations where a non-custodial option is being contemplated, as is the case with Griffiths bonds.53
LEGISLATIVE RECOGNITION OF CONFERENCING
12.19 The Commission recommends that legislation should allow a court to adjourn a proceeding before sentence in order to refer the matter to a conference. The adjournment would be similar to a Griffiths bond, but would be different in as much as the offender may still be detained in custody during the period of the adjournment. Conferencing could still be conducted, although with some difficulty, despite the offender not being at liberty. The Commission makes no recommendation concerning conferencing before trial or after sentencing.
12.20 The Commission has decided not to specify any particular type of conferencing scheme, because it considers that such schemes will vary according to circumstances and should, therefore, be allowed to evolve over time and take forms suited to different contexts without unnecessary legislative constraint.
12.21 Such a legislative arrangement, as recommended, will have the benefit of providing a clear power to the courts to make references to conferencing and to supervise the outcomes of the process. It will also allow individual conferencing schemes the flexibility to develop, improve and meet the needs of victims, offenders and communities without the constraint which would come from the legislative sanctioning of any particular conferencing schemes. This approach also allows the courts to consider the suitability of individual offenders and different offences for the particular schemes which may be available. The results of any conference would then be reported back to the referring court to be taken into consideration by that court in its discretion to fix an appropriate penalty for the offence.
Legislative safeguards
12.22 Besides recommending that a legislative base be provided to allow for the development of conferencing schemes, the Commission considers it is essential to build certain procedural safeguards into the proposed legislative scheme, in accordance with some of the suggestions already discussed.
Consent of participants
Recommendation 74
Where participation of a victim is a component of a conference, the victim must freely consent to taking part in the proceedings, although refusal to take part need not prevent the proceedings taking place.
Recommendation 75
An offender must freely consent to taking part in any conference.
12.23 As already noted, several submissions referred to the necessity for victims to be able to choose whether or not to take part in any form of conferencing. In proposing a system of victim-offender mediation, the Northern Territory Law Reform Committee has recently recommended that victims must “freely consent” to taking part in the mediation process.54 The Committee has not restricted the categories of offence for which conferencing is available, but rather has specified a number of determinants of what cases are appropriate for mediation, including victim consent.55 While it is unlikely that orders would be made coercing victims to take part, provisions requiring free consent should be made to emphasise the necessity for participants in the process to be willing to participate. While it can be argued that even unwilling participants may ultimately benefit from taking part in the process, the Commission does not consider that people should be compelled (either expressly or impliedly) to take part in such procedures. For the same reasons the Commission also recommends that the offender must freely consent to taking part in any procedure. However, the failure of a victim to agree to participate, should not necessarily prevent a conference taking place. The procedure may still be of benefit to an offender even in absence of the victim or the victim’s supporters, in as much as the offender may still be able to accept responsibility for the offending behaviour or perhaps strengthen his or her own community links.
Legal advice for offenders
12.24 To ensure that an offender’s consent is free, the offender must be properly informed of the consequences of taking part in a court referred pre-sentencing scheme. Accordingly, an offender must have the opportunity of seeking and receiving proper legal advice before he or she consents to taking part. Legal advice may also be necessary given the requirement that an offender admit guilt before being eligible for such a scheme.
Admission of guilt
12.25 As already noted, some submissions suggested that an offender must admit guilt before being able to take part in any conferencing scheme.56 An admission of guilt should not, however, be confused with an acceptance of responsibility by an offender which may only come about during the conference itself. One benefit of conferencing is that it assists offenders to come to accept responsibility for their offending behaviour. This is different from an admission of guilt, which the Commission considers is necessary so that a conferencing procedure is not used as a vehicle for an offender to deny the finding of the court.57 The Commission accordingly recommends that court referred schemes should only be available for offenders who acknowledge the court’s finding that the offence has been proved.
Prohibition on publication of proceedings
12.26 The Commission considers that confidentiality should attach to conferences. This is necessary to ensure complete candour during a conference which is desirable for the conference to be most effective. In the course of a conference strong emotions may be generated, information of a personal nature may be disclosed, and parties may not have immediate access to legal advice. Parties need to be protected against consequences that arise from disclosures made in these circumstances.
12.27 The form of protection provided in other legislative schemes varies. Both Western Australia and South Australia provide only that proceedings of such schemes shall not be published in any way so as to identify the young offender who takes part.58 The Commission prefers the New Zealand model which prohibits publication of proceedings59 but also provides that:
No evidence shall be admissible in any Court, or before any person acting judicially, of any information, statement, or admission disclosed or made in the course of a family group conference.60
We, therefore, recommend that there should be a prohibition on the publication of proceedings of any conference, and any disclosures made during such proceedings should be inadmissible in any judicial or quasi-judicial proceedings other than the sentencing hearing to which they relate.
FOOTNOTES
1. Community Youth Conferences (DP 33 at para 9.84); Community Aid Panels (DP 33 at paras 9.85-9.87); and the Wagga Wagga juvenile cautioning program (DP 33 at paras 9.78-9.82). The Wagga Wagga juvenile cautioning program was terminated in 1994 in favour of the pilot scheme for Community Youth Conferences: See J Bargen, “Kids, Cops, Courts, Conferencing and Children’s Rights - A Note on Perspectives” (1996) 2 Australian Journal of Human Rights 209 at 220. An evaluation of Community Youth Conferencing in New South Wales was produced in March 1996; it is not for public release but is summarised in New South Wales, Attorney General’s Department, Report of the New South Wales Working Party on Family Group Conferencing and the Juvenile Justice System (Discussion Paper, September 1996) at 14-17.
2. Young Offenders Act 1993 (SA): See DP 33 at para 9.83.
3. Children, Young Persons, and Their Families Act 1989 (NZ): See DP 33 at paras 9.73-9.77.
4. Circle sentencing: See DP 33 at paras 9.89-9.91.
5. “Diversionary Conferencing and the Reintegrative Shaming Experiment” (1995) (157) ACT Law Society Gazette 41; “Jail Fails, Shaming Tactics Worth Try” Canberra Times, 12 June 1995 at 10.
6. Confidential Submission (20 June 1996). See also T Vinson, An Evaluation of the NSW Pre-Trial Diversion of Offenders Program (Child Sexual Assault) (1992).
7. G R Clarke and I T Davies, “Victim-Offender Mediation in Queensland” (1994) 14 The Queensland Lawyer 169.
8. Queensland, Department of Justice and Attorney-General, An Introduction to Victim-Offender Mediation (February 1994).
9. Bargen at 225-226.
10. Bargen at 217-219.
11. Sections 27-30.
12. See generally J Hudson, A Morris, G Maxwell, and B Galaway (eds), Family Group Conferences: Perspectives on Policy and Practice (Federation Press, Sydney, 1996), which describes family group conferencing schemes in New Zealand, South Australia, Victoria, England and Wales, Canada and the United States.
13. See New South Wales, Attorney General’s Department, Report of the New South Wales Working Party on Family Group Conferencing and the Juvenile Justice System (Discussion Paper, September 1996); R Morris, “Face-to face Apology” Daily Telegraph Mirror, 18 October 1996 at 3.
14. See DP 33 at paras 9.65-9.95.
15. See DP 33 at para 9.92.
16. See DP 33 at para 9.93.
17. Although one submission expressed extreme reservations about the utility of conferencing: Confidential, Submission (22 May 1996) at 38.
18. M L Sides and Bar Association, Submission (24 June 1996) at 66; Victims Advisory Council, Submission (10 July 1996); Law Society of NSW, Submission (19 July 1996) at 38; Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 6.
19. Youth Justice Coalition, Submission (19 June 1996) at 2; N J H Milson, Submission (3 July 1996) at 10.
20. D Blakemore, Submission (26 June 1996) at 18.
21. Victims Advisory Council, Submission (10 July 1996) at 5; Law Society of NSW, Submission (19 July 1996) at 39; M L Sides and Bar Association, Submission (24 June 1996) at 66-67.
22. For example, as part of the sentencing options under s 33 of the Children (Criminal Proceedings) Act 1987 (NSW); Youth Justice Coalition, Submission (19 June 1996) at 2; as a voluntary non-custodial option: NSW Council for Civil Liberties, Submission (28 June 1996) at 5 and Justice Action, Submission (2 July 1996) at 5; or as part of a case management option for prisoners subject to parole: Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 6.
23. Law Society of NSW, Submission (19 July 1996) at 39; Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 6.
24. Law Society of NSW, Submission (19 July 1996) at 39; Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 6; M L Sides and Bar Association, Submission (24 June 1996) at 67; N J H Milson, Submission (3 July 1996) at 10.
25. Law Society of NSW, Submission (19 July 1996) at 39.
26. Youth Justice Coalition, Submission (19 June 1996) at 2.
27. Victims Advisory Council, Submission (10 July 1996) at 5.
28. M Dodson, Submission (26 June 1996) at 4.
29. Youth Justice Coalition, Submission (19 June 1996) at 2 (offender); N J H Milson, Submission (3 July 1996) at 10 (prosecution and defence); Law Society of NSW, Submission (19 July 1996) at 39 (victim and offender).
30. Youth Justice Coalition, Submission (19 June 1996) at 2; Victims Advisory Council, Submission (10 July 1996).
31. Law Society of NSW, Submission (19 July 1996) at 40; Youth Justice Coalition, Submission (19 June 1996) at 2.
32. Youth Justice Coalition, Submission (19 June 1996) at 3; M L Sides and Bar Association, Submission (24 June 1996) at 67.
33. Law Society of NSW, Submission (19 July 1996) at 40.
34. N J H Milson, Submission (3 July 1996) at 10; Youth Justice Coalition, Submission (19 June 1996) at 2; Law Society of NSW, Submission (19 July 1996) at 39.
35. Law Society of NSW, Submission (19 July 1996) at 40; Youth Justice Coalition, Submission (19 June 1996) at 3; M L Sides and Bar Association, Submission (24 June 1996) at 68; N J H Milson, Submission (3 July 1996) at 10.
36. M Dodson, Submission (26 June 1996) at 4.
37. M L Sides and Bar Association, Submission (24 June 1996) at 68; Law Society of NSW, Submission (19 July 1996) at 40.
38. Law Society of NSW, Submission (19 July 1996) at 40; N J H Milson, Submission (3 July 1996) at 10.
39. Youth Justice Coalition, Submission (19 June 1996) at 3.
40. Police Service, Human Resources Command, Conflict Management, Consultation (25 June 1996).
41. Law Society of NSW, Submission (19 July 1996) at 38-39.
42. M L Sides and Bar Association, Submission (24 June 1996) at 68; Law Society of NSW, Submission (19 July 1996) at 40.
43. Youth Justice Coalition, Submission (19 June 1996) at 3.
44. N J H Milson, Submission (3 July 1996) at 10.
45. M L Sides and Bar Association, Submission (24 June 1996) at 68; N J H Milson, Submission (3 July 1996) at 10; Law Society of NSW, Submission (19 July 1996) at 40.
46. Youth Justice Coalition, Submission (19 June 1996) at 3; M L Sides and Bar Association, Submission (24 June 1996) at 68-69; Victims Advisory Council, Submission (10 July 1996) at 5; Law Society of NSW, Submission (19 July 1996) at 40.
47. NSW Council for Civil Liberties, Submission (28 June 1996) at 5; Justice Action, Submission (2 July 1996) at 5; Victims Rights and Civil Rights Project, Submission (19 July 1996) at 8.
48. Youth Justice Coalition, Submission (19 June 1996) at 4; M L Sides and Bar Association, Submission (24 June 1996) at 69; N J H Milson, Submission (3 July 1996) at 10.
49. Namely, the court, the Probation and Parole Service or the Department of Juvenile Justice: Law Society of NSW, Submission (19 July 1996) at 40.
50. N J H Milson, Submission (3 July 1996) at 10.
51. N J H Milson, Submission (3 July 1996) at Appendix 2.
52. See paras 4.10-4.12.
53. Academic Forum, Consultation (2 August 1996).
54. Northern Territory Law Reform Committee, Mediation and the Criminal Justice System (Report 17A, 1996) at 19.
55. Northern Territory Law Reform Committee, Mediation and the Criminal Justice System (Report 17A, 1996) at 23-24.
56. See para 12.13.
57. The Northern Territory Law Reform Committee recommends that a mediation should “not become a process whereby the offender can prove why he or she is not responsible for the offence”: Northern Territory Law Reform Committee, Mediation and the Criminal Justice System (Report 17A, 1996) at 19.
58. Young Offenders Act 1993 (SA) s 13; and Young Offenders Act 1994 (WA) s 40.
59. Children, Young Persons and Their Families Act 1989 (NZ) s 38, adopted by s 271.
60. Children, Young Persons and Their Families Act 1989 (NZ) s 37(1), adopted by s 271.
