Finding the best way forward for offenders and victims
Forum sentencing, which started as a pilot program in 2005, is expanding to all Local Courts, and will be available state-wide by 2013. Anne Susskind finds out what it's all about.
What he likes best about forum sentencing, says Dean Hart, state manager of the Forum Sentencing Program (FSP), is that it brings offenders and victims together, providing scope for them to understand the impact of what's happened, and be involved in deciding how everyone can "best move forward". "In the traditional criminal justice program, offenders are usually represented by lawyers and don't get to speak to victims, so there is really no opportunity for victims to understand what is happening for the offender, and for the offender to understand the impact of their offence," Hart told LSJ.
The NSW pilot program started at two sites, Liverpool and Tweed Heads, in 2005. It's now available through nine offices serving 27 courts state-wide, and Hart's office is
organising briefings for lawyers to encourage them to make further use of the program. The detailed regulation governing the FSP falls under the Criminal Procedure Regulation 2010, part 7.
There have been just over 1,000 referrals to the program since 2005, and about 700 forums till the end of last year, almost all of which, Hart says, have resulted in a
successful "intervention plan" which has kept the offenders out of jail.
These intervention plans for offenders - which often start with apologies, and may involve community work or monetary payment, or a drug or alcohol program, or other more creative measures, such as a housepainter offender painting his victim's home - are worked out during a very structured process run by FSP facilitators.
They bring together not only victim and offender, but their families or anyone else affected, and other support people they choose. Larger groups work better, Hart says, and there should be at least 10 people present at the meetings, which take about three hours.
As Hart tells it, step one is for the court to refer people to the program, usually post plea and just prior to sentencing, although solicitors can ask the magistrate to do so earlier. There is a series of exclusions (see box). One of the criteria for eligible offenders is that they need to be likely to be facing prison, and often had an offending history. Another requirement is that the offender has to have accepted the facts of the case - to have admitted that they were there, and did do the deed. There also cannot be an existing relationship between the offender and the victim that would make it difficult to run.
Checks are then made with the offender that they are interested. If so, the person is referred to the program for a suitability assessment, involving a short interview with an administrator who checks that they understand and confirms that they want to be part of the program.
Next, the administrator contacts the victim and reports back to the court on their interest. The process can take place without the victim attending. There could instead be a victim representative, suggested by the victim, or alternate people who'd been victims of other offences.
Most offenders found suitable at this stage do get referred by the court, but it is up to the magistrate's discretion. Once referred back, they are allocated a facilitator. Facilitators, who get three days' intensive training, are from all walks of life - there are no formal qualifications, but they may be lawyers, or
counsellors, or come from a variety of community services, welfare or management backgrounds.
The offender needs to be let out on bail, if in custody.
Separate meetings are held with the offenders and victims to explain the process, and identify other people affected who need to attend, and support people for both sides, often including parents, friends, relatives and witnesses to the crime. Police can attend the forum, and solicitors in an advisory role for their clients, and proceedings can be stopped at any point for the solicitor to provide advice. The matter can go back to court if the process breaks down.
The forum itself follows a very set process: first, the offender talks about what happened - what they did, then the victim and others talk about how they were affected. In the third stage, everyone talks about what can be done to make things better.
This is written up and signed off by the groups, along with a report on what transpired at the forum, to provide context and
information for the magistrate. At sentencing, the magistrate has three options: ignore the intervention plan and sentence as normal, or order that the plan be undertaken and attach it to bond or bail so that it becomes a condition, or ask that amendments be made in the intervention plan, which then need to be taken back to the offender and victim, to which both have to agree.
Once the magistrate orders that the plan be undertaken, an FSP staff member will supervise it, and see that the offender completes the conditions agreed to at the forum.
Hart said a 2007 BOCSAR evaluation and report showed that everyone who attended - victims, offenders and support people - was very satisfied. Solicitors don't usually attend, but generally feel it works well for their clients. It is not, Hart says, a soft option for the
offender, despite the fact that he or she may avoid a prison sentence by going through the program.
"Offenders are a mixed bag. Some find it difficult, some are willing to agree to things at a forum. In a lot of ways, this is more difficult than going to court. They have to meet their victim, and face the impact the crime has had on someone else's life. Some offenders find this very challenging. In court, the victim is not present, and has no direct input and the solicitor speaks on the offender's behalf." There is, he says, no firm evidence on recidivism. A study early on, to look at the extent to which forum sentencing reduced recidivism, found there was no difference when compared to a matched group of offenders. But Hart says that was based on the pilot, which was done with young adult offenders, while the program today is wider than that.
Other research into restorative justice programs, Hart said, showed it to work best more typically with more serious offences, and where a direct victim was willing to participate. The victims, he says, are often not so
interested in punishment, or monetary reparations, but in understanding what happened and why the offender did it, and whether they'd been targeted. They had fears for their safety, and the possibility of being targeted again. They often had a series of questions they wanted answered. For those who did want monetary or other
compensation, that could be negotiated in a free and open way.
While it was difficult to give actual figures, Hart says most estimates are that it was "certainly cheaper" to run this program than to keep people in prison. The whole process takes a couple of months, and involves no less work for a solicitor, who still needs to appear in court and come back for sentencing.
Marsdens' partner in charge of criminal law, Jeff Tunks, is not usually a letter writer, but he put pen to paper to write to the FSP because he'd been so pleased with the process. From his perspective as a defence lawyer, it is often only when clients are confronted face to face with the result of their actions that it "really, dawns on them" what they've done. Clients have told him so.
The matters he has referred to the program are all quite serious. "If violence has been involved, where my client is in real danger of being sent to full-time imprisonment, on each occasion, I suspect what saved them was the forum process report.
"Through those detailed and comprehensive reports, it was made clear that the client became aware in real and personal terms, of the gravity of their actions. But more so, that they understood clearly, when confronted on a personal level, that their victim had feelings and a family that was affected. That it could happen to them, their sister, their mother. "It drags the person out of their comfort zone and confronts them. They are shaken out of their complacency.
"Just about always a client will tell you, 'I'm very sorry'. Often they mean it. However, when the victim sits in a room with the client, and tells the offender she has not slept in months or of the effect on their parents or partner, and says, 'It's your fault, tell us you're sorry' - that's when the message actually gets through. These often hard-nosed young men are breaking down in these sessions and becoming emotional. The bravado is gone. That's when the court knows there's genuine contrition instead of a self-serving expression on their behalf from a lawyer. It's a cathartic experience."
Tunks, who has been involved in criminal justice for nearly 30 years, as a police officer, prosecutor and now a defence lawyer, says real rehabilitation starts with awareness by the offender. In some ways, the FSP operates in the same way as the traffic offenders'
program, where offenders might hear from the ambulance rescue people who've had to cut victims out of the wreckage or someone made paraplegic. It changes their attitudes.
He likes the community involvement in the process itself and also that the plans to emerge from the forum frequently involve community service work. Tunks says it is very rare that even clients who might commence with what might seem like an "attitude
problem" don't enjoy community service. Once they start, most become motivated and interested in the work.
"You can fine someone or throw them in jail; and sometimes that is required. But if you want to start to rehabilitate someone, it does
not hurt to give them a gentle shove toward becoming part of society."
He uses the program whenever it seems suitable and has been pleased with the outcome every time. FSP staff at
Campbelltown court are terribly dedicated, he says.
"As a defence lawyer, one of the reasons I wouldn't utilise it would be if I thought it wasn't properly run, or thought there was a danger of setting up my client for failure. Also, I've never had a client come back to me and say 'No one listened to me, it wasn't fair'. They have not ended up in jail and they have not re-offended, as far as I can see."
Mostly, Tunks says, he's talking about young men, 18 to 25, with alcohol-related offences - assault, affray and other "street offences". In one case, a young fellow with a history of violent offences from when he was juvenile had broken down after being confronted by the mother of a girl he'd threatened in a "full-on" way.
His poor behaviour was thrown right back at him in front of his own mother who was present, and his mother had actually agreed with the other woman. The result was a sincere apology and some community work for the offender.
Recently, he'd had a client with a terrible traffic record who was on a suspended sentence, and had been caught drink driving. Either the forum worked, or he'd go to jail for six months. The man had been resistant to all types of assistance over a number of years, but the penny finally dropped with the intervention, when he was confronted by a person whose son was killed by drunk driver. "He thought about his own son in late teens, and he told me, almost mind numbingly, that he'd never thought about it this way before."
Kirsten Brumby, who is a part time facilitator - a life coach and business coach the rest of the time - had never had anything to do with lawyers or the legal system before she became involved in the FSP program. Now she's been doing this for five years, and run perhaps 50 forums. She also trains facilitators.
It is, she says, a very structured way of doing things, different to life-coaching where she puts more of herself into it.
"I've had a couple of very interesting ones. One was a pretty horrible assault, a man who was bashed in his street and his wife and two kids, maybe nine and 12, came out. The kids came to the forum for part of it. The offender talks first, then everyone talks about how they've been affected - that was when the kids left. It was great to have the them there, and the offender got to hear how they'd been affected by watching their dad assaulted." In the last stage, when the victim talked about what he'd like to see happen, he'd wanted an assurance that it wouldn't happen again in his street. He and his family had bought a guard dog, which he thought the offender should pay for. There was another aspect too - it had all started around an issue to do with the victim's child who had a behaviour disorder, and the offender had agreed to explain this to other youths he'd been with, and also to the people in their church, and report back to the victim." At the forum's end, the victim had asked to speak one-on-one, and Brumby had agreed to facilitate that.
"They had a big hug, shook hands and the offender completed the plan and paid for everything. People are so angry, upset and scared at the start of three hours, and you watch the group take care of itself - and watch understanding dawning on the offender's face. It's to get to that point and go, 'Ok let's look forward and work as a team to see what harm has been suffered. If the offender is not in a position to pay victims, the victim has to ask, 'What is going to make me feel better about the harm suffered?'
"In another case, one of the victims was a bus owner, who offered the offender a work experience job. When he understood why she'd done what she did, he said 'Why don't you come work for me a couple of days a week?' One of the underlying issues was to keep her out of trouble."
Kristen Daglish Rose, who works at the Downing Centre as FSP administrator for the area covering Sydney central and eastern regions, started her career in banking and finance law at Henry Davis York - "a great
work environment, with fantastic people" - but soon found it wasn't right for her. She just wasn't engaged.
Previous to her present job, Daglish Rose was in Colombia for three years as part of an international "peace building" advisory team which included lawyers, psychologists and other professionals, trying to re-integrate perpetrators of war crimes (both right-wing paramilitary and left-wing guerrillas) back into their society, as well as provide support for their victims.
With collective violence, she said, it was not always possible for victims to identify who were the perpetrators, so meetings were held between groups of ex-combatants on both sides, and groups of victims, to get them talking to each other.
Forum sentencing is part of a broader field of endeavour, known internationally as
restorative justice. Restorative justice takes place, Daglish Rose said, not only on the big stages for war crimes in places like South Africa, through the Truth and Reconciliation Commission, and Rwanda with its Gacaca courts, but is becoming more widespread in societies like ours, and in Britain and the UK to address local crime.
As defined by the Center for Restorative Justice at Suffolk University, it is "a broad term which encompasses a growing social
movement to institutionalise peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peacemaking tribunals ... to innovations within the criminal and juvenile justice systems, schools, social services and communities." According to Howard Zehr, author of The Little Book of Restorative Justice, while traditional criminal justice seeks answers to three questions: "what laws have been broken? who did it? and what do the offender(s) deserve?", restorative justice instead asks: "who has been harmed? what are their needs? whose obligations are these?"
Daglish Rose's interest in the larger
restorative-justice movement suited her well for the position she found at the FSP on her return to Australia in 2008. She considers herself lucky to have landed such a "good fit". "It flowed on - they're much lesser crimes, on a lesser scale. You're not dealing with a whole
society that has been victimised and traumatised, but it's about how to get that conversation going. It's where the healing starts, when you bring together the people most affected to work through the problem, as opposed to the way our system works, which is to divide people, with everyone separated and confrontational and adversarial.
"Victims have an opportunity to ask questions - 'why my house, why my things, or why me?' A lot of questions arise, and allowing them the space to ask them, and for the emotion too, helps with healing for the victims and their post-traumatic stress drops dramatically." It was, she said, also very healing for offenders. From someone who assaulted an officer, to someone guilty of road rage, both might want an opportunity to say sorry.