Police Adult Diversion Scheme policy

Transcription

1 Police Adult Diversion Scheme policy Police Adult Diversion Scheme policy... 1 Introduction...2 What is diversion?... 2 Advantages of the diversion approach... 3 Aims of the policy... 3 Purpose of this policy... 3 Purposes of diversion... 3 Rehabilitation... 3 Reparation... 4 Relationship with the criminal justice system... 4 Policy exclusion... 4 Other criminal justice outcomes... 4 Diversion process...5 Diversion process... 5 When to consider diversion... 5 Prerequisite for diversion consideration... 5 All cases considered... 6 Diversion criteria...6 Offender-based criteria... 6 First offender... 6 Special circumstances... 6 Accepts responsibility for offence... 7 Offence-based criteria... 7 Offence seriousness by offence category... 7 By jurisdiction... 7 By offence type... 7 Traffic Infringement offence notices (IONs)... 8 Commercial vehicle related offences... 8 Approach to considering diversion for traffic offending... 9 Sexual offences or offences with sexual overtones... 9 Offences involving liquor...10 High prevalence offences...10 Offence seriousness by case circumstances Aggravating and mitigating factors...11 Victim s views OC case's views Police member's eligibility for diversion The first court appearance Who can be considered for diversion?...12 The diversion interview...12 Arrange an interview time What to consider for suitability Interview purpose Diversion officer must explain...13 Offender has opportunity...13 Things you must tell the offender...13 The diversion offer Offender has right to review...14 The diversion agreement Diversion conditions...15 Guiding principles of selecting conditions page 1 of 24

2 Proportionality...15 Achievability...15 Appropriateness...15 Available diversion conditions Diversion without conditions...15 Apology letter...16 Reparation...16 Meeting with the victim...16 Counselling...16 Donation to an approved group...17 Amount of donation...17 Service to the community...18 Approved organisations for service to the community...18 Work at police station...18 Attendance sheet...18 Restorative justice (RJ) in diversion...18 Three prerequisites to diversion referral Approved RJ provider available in the diversion area...19 Victim consent and participation...19 Diversion interview must have occurred with approved diversion officer...19 RJ processes Monitoring compliance Further adjournment...21 Approved diversion officers...21 Process for PPS Approved diversion officers Training requirements Community involvement...22 Using and disclosing diversion information...22 Using information Disclosing information Criminal Records Act...23 Monitoring and auditing diversion...23 Recordkeeping NIA data entry District prosecution manager's audit role Regional manager and national manager audit role Annual reporting Introduction What is diversion? The Police Adult Diversion Scheme (diversion) is a lawful way to exercise prosecutorial discretion instead of full prosecution. The organisational responsibility for diversion sits with the Police Prosecution Service (PPS). Diversion enables eligible offenders to complete diversion activities within a given timeframe to avoid both a full prosecution and the possibility of receiving a conviction. Diversion also enables community groups to actively participate in an approach which has early intervention at its core. This means that judicial time is able to be reserved for more serious offences and offenders. page 2 of 24

3 The purpose of this policy is to set out the bases on which the scheme is to be applied. Advantages of the diversion approach The advantages of the current diversion approach are: the legal standards (evidential sufficiency, prima facie case, public interest test) have been met to show that the offence should have resulted in a charge within the criminal justice system a charge has already been laid in the court and can proceed if the offender does not complete the terms of diversion the process has the incentive of the "shadow of the court" to bring to bear on the offender. Aims of the policy The aims of this diversion policy are to achieve: nationwide consistency in availability and approach improved service delivery to Maori and partnerships with Maori communities and service providers agreed data requirements and formal performance measures improved training and support for diversion officers communication material for the public. Purpose of this policy The 'Crown Law Office Prosecution Guidelines for Crown Solicitors ' note that: "1.3 The State also accepts the responsibility of ensuring, through institutions and procedures it establishes, that those suspected or accused of criminal conduct are afforded the right of fair and proper process at all stages of investigation and trial. 1.4 Those dual responsibilities are often in tension. The individual... will rarely believe that is working in his or her favour; the investigating and prosecuting agencies will not wish to see someone they believe guilty to elude conviction It is of great importance therefore that decisions to commence and to continue prosecutions be made on a principled and publicly known basis." Likewise, the application of the police discretion to consider and offer an offender diversion must also be applied on a principled and publicly known basis. Purposes of diversion Diversion has two primary purposes rehabilitation and reparation. Rehabilitation To prevent re-offending To encourage offenders to reflect on the impact on the victim by ensuring the offender is sufficiently aware of the implications of the offence page 3 of 24

4 Reparation Reparation might include the payment of money to compensate a victim writing an apology letter to the victim of the offence or meeting with the victim for a restorative justice process, making good damage done to property (e.g., painting over graffiti) making a financial donation to an approved community group. Three secondary purposes of diversion are to: encourage the offender to take responsibility and show remorse for their actions eliminate factors that put the offender at risk of re-offending (e.g., arranging counselling for alcohol or other drug problems) avoid the offender s first conviction and give them another chance. Relationship with the criminal justice system Diversion is an alternative means of processing some offences and/or offenders through the courts. It enables the police to address certain types and levels of offending proactively. It provides an outlet for prosecutions to be diverted from the formal criminal justice system and ensures that the only cases that proceed before the judiciary are those which the public interest suggests require the full intervention of the criminal law. Diversion derives from the police discretion to prosecute. Participation in diversion will usually be initiated at or about the time of the offender's first court appearance, within the registrar's list. An offender's charge(s) will be adjourned for a fixed period to enable diversion to be considered, offered and completed before the next court appearance date. Policy exclusion This policy does not cover the diversion provisions of the Children, Young Persons and their Families Act Children and young people under 17 years of age should be dealt with under that Act. Other criminal justice outcomes Diversion, unlike a discharge without conviction under s106 of the Sentencing Act 2002, does not require that the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offence. However, there will be occasions when that situation could properly apply. An offender who is not prepared to accept, or is not considered eligible for, diversion may still seek a discharge without conviction under s106 without needing to complete the conditions of a diversion agreement. However, under section 106 it is possible for the Court, in discharging an offender, to order: payment of costs restitution of property payment of a sum for loss or damage to property, emotional harm or consequential loss or damage any order the court may make on conviction (such as a period of disqualification from driving). page 4 of 24

5 Diversion process The following diagram outlines the Police's process for considering diversion. The policy provides the high level policy statement. Operational detail and decisionmaking tools for diversion will be included in the desk file. Police intervention Prosecution/Court role Offence committed Charges laid File evaluation (including diversion consideration) First appearance & adjournment for diversion Diversion interview & agreement Agreement with with conditions? YES Police managed conditions Police managed conditions Community Group managed diversion NO Community managed condition(s) Com Compliance Report Report Compliance review Prosecution continues NO Did offender comply with all conditions? YES Charge withdrawn Diversion process Stage Part of process 1 Charges laid 2 File evaluation 3 First court appearance 4 Diversion interview 5 Diversion agreement with conditions 6 Monitoring compliance 7 Completing diversion When to consider diversion An offender s eligibility for diversion is considered once it is determined that: a prosecution commenced is justified diversion may be an appropriate disposal outcome. Prerequisite for diversion consideration Diversion may only be used where there is sufficient evidence to justify laying a charge in the first place. Prosecutions are undertaken when there is both sufficient evidence to meet the prima facie test and the public interest requires that prosecution proceeds. Do not consider diversion where there is insufficient evidence to support a charge proceeding. Deal with each case s facts on their merits. When deciding whether to proceed with a prosecution the key question is always whether the conduct really warrants the intervention of the criminal law. page 5 of 24

6 All cases considered To ensure consistency and fairness across the country, prosecutors must consider every offender s eligibility for diversion, even if only briefly for serious, persistent or violent offenders. Each case must be decided on its merits. For the first court appearance, prosecutors should be prepared with a position on whether or not the case should be adjourned for diversion consideration, rather than wait for an approach by counsel. The officer in charge of the case (OC case) recommends an offender s suitability for diversion. The OC case considers the circumstances of the offence and the victim s views on the suitability of diversion. However, only PPS prosecutors and approved diversion officers authorised by PPS regional managers, may decide whether an offender is considered for or offered diversion. Diversion criteria This criteria is fundamental to considering and offering diversion. Both the offender-based and offence-based criteria must be met, and the victim s and OC case s views considered before diversion can be considered. Offender-based criteria First offender A key purpose of the diversion scheme is to give a person who has no convictions an opportunity to avoid receiving a conviction and still address the underlying reasons for and the consequences of their offending. Generally, a first offender is considered suitable for diversion. However, the offence type and circumstances (offence-based criteria) must also be considered. Special circumstances In some special circumstances it may be appropriate for an offender to have the benefit of diversion where they have Youth Court offending, previous diversion or convictions. Examples where the diversion officer may apply special circumstances are: where the current offending is the result of an underlying problem that is likely to respond to counselling the direct or indirect consequences would be out of proportion to the seriousness of the offence the offender's previous court outcomes (diversion, conviction or Youth Court) are for quite dissimilar offences or were over five years ago. Failure to complete previous diversion agreements and/or community based sentences are indicators of likely future behaviour, in the absence of information to the contrary. An offender who previously received diversion should not be considered for diversion again for a similar offence, unless you believe there are exceptional circumstances to suggest that diversion would be appropriate. In cases where the diversion decision may be unclear, the diversion officer must consult with their district prosecution manager who will determine, if necessary in page 6 of 24

7 consultation with the PPS regional manager, whether or not the offender should be offered diversion. Accepts responsibility for offence The offender must accept full responsibility for the offence by admitting that they committed the offence. They must also show remorse for their actions. It is desirable, but not a prerequisite, that an offender has either intimated or entered a guilty plea to the offence. An offender who has previously pleaded not guilty is not subsequently barred from consideration for diversion, provided they now accept responsibility and meet the other diversion criteria. Acceptance of responsibility, short of a plea, is also not a bar to consideration for diversion. Offence-based criteria There are two tests you must consider for offence-based criteria: the offence category is not too serious the circumstances of the offending suggest that public interest would not be compromised if the offence was dealt with through diversion. Offence seriousness by offence category You cannot set hard and fast rules on particular offence categories. Every case must be examined individually and considered on its merits. There will be cases when the legal description of the offence, or the maximum penalty for the offence may appear serious but when the offence is in context of the facts it is not. You can consider diversion where the offence is serious but the circumstances are at the bottom end of the scale and the effect of a conviction is out of all proportion to the offence s seriousness. By jurisdiction Generally, all summary offences and all indictable offences that are triable summarily would be considered to be less serious and eligible for diversion. However, purely indictable offences would usually be considered too serious to be eligible for diversion. By offence type Some types of offences need particular care before considering diversion because of: public interest safety concerns victim issues. In many of these cases diversion officers are given aggravating and mitigating factors to consider when determining where the public interest lies. page 7 of 24

8 Traffic Infringement offence notices (IONs) Many traffic offences are infringement only offences and will not result in a conviction. They are beyond the scope of diversion and can be dealt with by the Traffic Compliance Scheme. However, if an offender requests a court hearing on an infringement, the offence should not be considered for diversion as the offender is not accepting responsibility for the offence or is challenging case elements. Similarly, denying liability for an infringement offence then requesting diversion when appearing in court is not supported. Traffic offence notices (TONs) Any traffic offending by an individual (not by a company) laid as a traffic offence notice can be considered for diversion. Firstly, seriously consider the offender's previous traffic history. This is to meet our paramount concerns: the public interest the general deterrence road policing model road safety. It is important that any mandatory consequences that would follow from a conviction are not avoided through a person being offered and completing diversion (e.g demerits following from conviction). Examples of traffic offending when you must not consider diversion are: An offence which carries a requirement for a judge to impose a mandatory minimum disqualification period following conviction for the offence (e.g. excess breath alcohol, driving while disqualified). An offender with current demerits who would incur demerits on conviction for the current offence An offender who is demonstrating a pattern of traffic offending. Careless driving will commonly fall into the TON category where no mandatory minimum sentence is required. Careless driving charges do not normally carry a high degree of consequence for an offender on conviction. When dealing with careless driving, consider: whether the consequences of a conviction outweigh the seriousness of the offence, and the seriousness of the offence, particularly the risks to road safety. If diversion is appropriate, consider a defensive driving course or an advanced defensive driving course as a diversion condition. Diversion is not normally appropriate for more serious offences, such as careless driving causing death or careless driving causing injury. However, the prosecutor may support restorative justice processes before sentence. Commercial vehicle related offences Do not consider any offending regulated through the Commercial Vehicle Investigation Unit (CVIU) for diversion as there is an established compliance regime. Examples of these offences are: H code series (road user charges and overloading) K code series (transport licensing offences) particular M code series offences (logbooks, driving hours and vehicle related offences M120 to 215 inclusive; M326, 327). page 8 of 24

9 Approach to considering diversion for traffic offending Support for restorative justice as sentence alternative ION only offences (minor traffic offending). No diversion. Eg: fails to give way fails to wear restraints fails to indicate low level speeding. TON, careless driving or offences with no minimum penalty. May offer diversion if: conviction consequences outweigh seriousness of offence Road safety risks are important consideration. More serious offending carrying mandatory minimum sentence. No diversion. Eg: excess breath alcohol driving while disqualified serious or fatal injury crashes. No diversion May offer diversion as above No diversion Dishonesty offences Consider the circumstances of the offending, particularly whether there has been a breach of trust. Burglary is generally considered too serious for diversion although the offence may be more technical in nature. Violence offences Do not minimise violence. The circumstances of the offending and the victim's views are most important in considering violent offences for diversion. Family violence offences Diversion is rare and can only be offered where full consideration has been given to previous offending and reports, and the district family violence coordinator has been consulted to ensure adequate consideration is given to the dynamics of the relationship. The district prosecution manager must authorise a decision to offer diversion in relation to family violence, ensuring that diversion is appropriate, given Police's Family Violence Policy and the PPS's Family Violence Policy. Sexual offences or offences with sexual overtones Diversion will be rare due to the dynamics of this offending. The district prosecution manager must authorise a decision to offer diversion in relation to sexual violence or offending with sexual overtones. page 9 of 24

10 Offences involving liquor Diversion may be appropriate for liquor offences (such as breach of a liquor ban). Alcohol-related offences may be ones which fit the high prevalence offences making diversion unavailable for a specified period. Consider whether an alcohol and drug education or assessment should be a condition. Drug offences Do not consider diversion for class A and B drug offences, including precursor and synthetic substances. However, you may consider diversion in some circumstances for: possessing small amount of cannabis oil (class B) possessing needles and utensils cultivating cannabis (class C offences). Do not consider breaches of court orders (e.g. protection orders, restraining orders, name suppression orders) for diversion. High prevalence offences If an area is experiencing an outbreak of a particular type of offending which might ordinarily be eligible to have diversion considered, the district prosecution manager may, in exceptional circumstances, seek to exclude particular offences from diversion for a specified period. This will be by an agreement reached by the regional manager PPS and the district commander. The aim of these exclusions is to deter the offending behaviour. The period should be for a finite date and will be reviewable. Where this decision is made, the national manager PPS will be advised by the offence types and the proposed duration of the exclusion. When considering suspension of diversion for certain offences, always consider the need for national consistency. Offence seriousness by case circumstances The diversion officer must determine where the balance lies in relation to public interest. In addition to the nature of the offence, determining the public interest in a prosecution proceeding must also reflect the offence s particular circumstances. To do this, consider particular aggravating and mitigating factors in relation to the offence. Where the circumstances of the offence have more features which are considered to be aggravating factors that should suggest to the diversion officer that diversion is unlikely to be appropriate in the public interest. Conversely, where more mitigating factors exist, diversion may be more appropriate. page 10 of 24

11 Aggravating and mitigating factors A list of aggravating and mitigating factors has been produced in consultation with both prosecutors and investigation staff for those offences meeting the criteria for diversion. This list is not exhaustive. Aggravating factors Act was calculated and deliberate Offender was ringleader or organiser, or a sole offender Act was carried out by a group Conviction is likely to result in significant penalty Weapon was used or violence was threatened during commission of offence Offender abused a position of trust (eg, employee, baby sitter, caregiver) Victim was vulnerable, deliberately put in considerable fear of personal attack Offence was against a public servant acting in the exercise of duty (eg, a police officer, fire fighter, or ambulance staff) Offender refuses to identify co-offenders Due to the prevalence of the offence in the area it has been identified for special attention in consultation between district and PPS Evidence of premeditation exists Offender has been warned previously Other charges are pending Offender s response was disproportionate to a perceived threat Offender has previously received diversion for similar offending Mitigating factors Arrest and time in custody sufficient deterrent Offence committed through misjudgement Offender coerced by group to commit the offence (minor role) Offender vulnerable Conviction is likely to result in discharge or nominal penalty Offender showed spontaneous and genuine remorse for their actions Offender was ignorant of the law, offence was not premeditated Offender was provoked by victim or victim s group, offender acted impulsively Offence was minor and offender has put right harm or loss caused and has expressed regret Offender assisted in apprehending others Offender has mental health problems or physical illness, unlikely to repeat the offence Offender was in the wrong place at the wrong time Offender has budget problems Offender made a genuine mistake or misunderstanding Offender influenced by others more criminally sophisticated Historical offence where apprehension made many years later Victim s views Always consult and seriously consider the victim s views (and their reasons) before making the diversion decision. In the consultation discuss the range of conditions that could be agreed and carefully explain the advantages of diversion to the victim so they can express an informed view. Although the diversion officer makes the diversion decision, they must always take the victim's views fully into account when making that decision. Carefully explain to the victim that it is the diversion officer s responsibility to decide whether the offender is prosecuted, offered diversion or warned. page 11 of 24

12 OC case's views Always consult the OC case and seriously consider their views. The OC case may have further information not disclosed on the file. While the OC case s views are persuasive, they are not determinative. The diversion decision is diversion officer's responsibility. Police member's eligibility for diversion Diversion can be considered for any person, including sworn and non-sworn Police members. However, because of the special relationship of police members, there are additional considerations that must be made after the member has met the offender and offence-based factors for diversion. The Commissioner is entitled to deny diversion to any police member who is charged with an offence that could adversely affect the integrity of the Police. Unless exceptional circumstances exist to support the contrary, such a charge must be disposed of in open court to avoid the erosion of public confidence in the Police. Where a Police member has been charged with an offence and is seeking diversion send the file and supporting material to the national manager PPS. Include all available information about: the offence diversion a detailed report about what lead to the decision that diversion may be suitable. Only the Commissioner or deputy commissioner can offer diversion for offences committed by sworn and non-sworn members of police. See general instruction IA126. The first court appearance At first appearance, by laying a charge, the offender has access to the duty solicitor and may also have the opportunity to discuss the case with the judge. In most cases, however, an adjournment is sought (by a registrar in the registrar's list) before the offender appears before the judge. This process ensures that the scheme is transparent. If a prosecutor has formed the view that an offender may be considered for diversion, the prosecutor should seek a remand. The adjournment should allow time for the: diversion interview to be held diversion requirements to be determined where appropriate, completed the diversion requirements before the next court appearance. Diversion is not offered at this point. The case is stood down to consider diversion. Diversion will only be offered to an individual once the interview has been held. Who can be considered for diversion? A guilty plea (either entered or intimated) in court must not be a prerequisite nor a bar for diversion. An offender is eligible to be considered for diversion if they have: entered a plea but not been convicted not entered a plea, but have acknowledged guilt. The diversion interview page 12 of 24

13 Arrange an interview time All offenders whose cases are adjourned for consideration of diversion must have a face-to-face diversion interview with an approved diversion officer. This interview must happen as soon as practical after their court appearance. An interview time may be set up with the offender before they leave court. If not give the offender a brochure with contact details of the local diversion officer. The prosecutor must ensure that a time is set for an interview or a mechanism for the time to be set is in place at the time the case is adjourned. What to consider for suitability Considerations for suitability include: the diversion officer making a decision before the interview, based on available information about the offence and offender s suitability thoroughly checking the offence and offender-based factors on file the offender's past criminal offending ascertained from their file and NIA (including if diversion has been previously offered and the response where available, and any criminal convictions) the victim s and the OC case s views on diversion. Interview purpose Do not minimise the importance of the diversion interview. The interview provides the opportunity for the offender's suitability for diversion to be more fully considered. Diversion officer must explain In the interview the diversion officer must explain: purposes and benefits of diversion ground rules for diversion what happens if/when diversion is completed. During the interview, the diversion officer will determine whether the offender accepts responsibility for the offending. If the offender does not, diversion is not appropriate. The interview will also explore possible conditions of diversion that are appropriate, proportionate and achievable before the next scheduled court date. Offender has opportunity The interview gives the offender an opportunity to: express their understanding of their offence s impact on them and any victim explore the possible reasons for the offending consider what the impact of a criminal conviction might be on their life or their whänau or family s life. have support people attend the diversion interview. accept diversion or exercising their right to test the prosecution before a court. Things you must tell the offender The diversion officer tells the offender that the offender must voluntarily accept to undertake diversion with its attached conditions instead of continuing a prosecution. The diversion officer must advise the offender that any discussions of the offence are "without prejudice". This means that if diversion does not proceed then no evidence concerning the diversion discussions can be called at the offender's trial. page 13 of 24

14 The diversion officer must advise the offender if they admit other offences during the interview these will be disclosed to another police member and dealt with separately from the diversion offence. You must give an offender who admits other offences the usual caution and Bill of Rights advice. If the offender does more offending while they are meeting their diversion conditions, they may no longer be suitable for this diversion. The diversion offer The approved diversion officer makes the diversion decision which is only made: after the diversion interview has been held, and the offender agrees, in principle, to the conditions that will form part of the diversion agreement. If the diversion offer is accepted, the offender signs the diversion agreement. The offender may withdraw from diversion at any stage of the process before their next court appearance. Offender has right to review The offender or their counsel may request a review of either: the decision to consider or offer (or not) diversion the diversion offer conditions. They can request the review in writing or verbally. The review process will be undertaken, firstly, by another prosecutor from: within the PPS office or another PPS office the PPS office responsible for the prosecution file, in the case of a non-pps diversion officer. The reviewing diversion officer must consider the offender and offence-based characteristics and create a file note on the review s outcome. The outcome must be communicated to the offender (or their counsel) within five working days of PPS receiving the request. The diversion agreement The diversion agreement template is available on Microsoft Word's Police Forms. The agreement will include: the offender s acceptance of responsibility for the offence the offender s contact details the agreed diversion conditions acknowledgement that the offender has been informed of the terms of diversion relating to failure to complete and that information about the offence is "without prejudice" the expectations and times for completing the conditions. This includes providing receipts and attendance records at counselling or service to the community to the diversion officer the adjournment date and recognition of the diversion officer's action following successful completion being to notify the registrar to withdraw the charge (and conversely, the impact of failure to comply with the agreement). The charge may be withdrawn by the Registrar on the papers, rather than being open court. The offender's attendance will be excused (unless the offender wishes to appear and have the charge withdrawn in open court). You must explain the diversion agreement conditions to the offender in full. The offender must sign the agreement before it is valid. page 14 of 24

15 The offender may discuss the agreement with a lawyer before signing the agreement. Give the offender a copy of the agreement either immediately after the interview or post it as soon as possible. Diversion conditions Imposing conditions in the diversion agreement is an opportunity to find a meaningful way to deal with an offender who: has admitted responsibility for their offending has shown remorse for their actions is prepared to be accountable for those actions. If diversion conditions target the reasons for offending and the purposes of diversion, it can reduce the likelihood of re-offending. Take into account, the offender s full circumstances and ability to comply with those conditions. The offender may decline or accept the diversion agreement. Guiding principles of selecting conditions There are three guiding principles that will guide the diversion officer's selection of diversion conditions. Proportionality The condition must be proportionate to the offence and must appropriately balance the public interest in justice being pursued through diversion. The condition(s) should not be more onerous than a sentence that might be imposed by the court following a conviction. Achievability All conditions must be able to be completed within the adjournment period (or any extension that is granted to that period) to the satisfaction of the diversion officer before a charge is withdrawn. Appropriateness The conditions should be targeted towards reparation to any victim, the offender s rehabilitation or a combination of the two to ensure the purposes of diversion are met. Available diversion conditions Diversion officers can impose one or more conditions in the agreement. The offender must voluntarily agree to the selected condition(s) or restorative justice Diversion without conditions When all circumstances of the offender and offence have been considered, no additional diversion conditions may be required to meet the purposes of diversion. For example, when an offender has spent a night in police custody before a court appearance. In these instances an agreement acknowledging diversion with no further conditions may be enough. The diversion without conditions option would be used in exceptional circumstances only, rather than as a general rule. page 15 of 24

16 Apology letter The offender is asked to write an apology to the victim to acknowledge that their actions were wrong and to show they understand the implications of their offending. The letter should be given to the diversion officer to send to the victim. This may not be necessary if the offender is going to meet with the victim in person. Reparation Reparation should consist of any reasonable expense incurred by the complainant/victim as a direct result of the offence. For example, the cost of repairs to damaged property or the cost of a taxi or rental car by the victim after their car was unlawfully taken. Always get a written quote before reparation is directed as part of diversion. Reparation should be for full value and include any insurance excess. Offender cannot pay If the offender cannot pay full reparation or disputes the amount of the reparation then the general rule should be that the case is referred back for the prosecution to continue. In certain circumstances, if the victim agrees, it may be possible for an offender without the financial ability to repay the reparation by 'working off' the amount owed or being given time to pay. However, it is important that all reparation is paid before the prosecution agree to withdraw a charge. Failure to do so, where an extension to the adjournment is not considered appropriate, requires the prosecution be continued against the offender. Exclusions Reparation made towards costs of store security should not be made a condition of diversion. Making payment The offender can pay the victim directly when a meeting with the victim is part of diversion. Otherwise a bank cheque in the victim s name sent to the approved diversion officer, or by the offender's counsel. A copy of the bank cheque must be obtained and attached to the file. Police must not handle cash, in line with general instruction CO40. Meeting with the victim In some instances it may be appropriate to consider an approved RJ provider facilitating a meeting between the victim and the offender. RJ information must be provided to the victim so they can make an informed decision. Only suggest the restorative justice option to the offender when the victim s views have been obtained and the victim is willing to be involved before the offender meets with the diversion officer to set up the diversion conditions. Counselling Each district prosecution manager must create, use, and maintain a list of local Ministry of Health accredited counselling agencies. Counselling may be appropriate in relation to the nature of and/or reasons for the offending or for personal reasons that need to be addressed to reduce or prevent re-offending. The desk-file provides information about determining appropriate conditions. page 16 of 24

17 Types of counselling may include: Alcohol and drug counselling Stopping violence Budgetary advice Gambling Child welfare Family or relationship counselling Counselling for unresolved personal issues (e.g. grief, sexual abuse) Defensive driving should be considered in all traffic offence cases. If an offender attends counselling, one of the conditions for diversion must be that the offender must pay all fees. In the referral form, the counsellor will be advised that a receipt for counselling fees and a report outlining attendance and response is required as soon as the counselling has finished. The offender must ensure this report is provided at least three days before their next court appearance. Donation to an approved group The donation must only be made to an approved group. Each financial year approved diversion officers are given a list of approved charities for diversion. These are local non-profit organisations and groups that contribute to the New Zealand Police's goals of crime and crash reduction, and must be approved by the PPS district prosecution managers, in consultation with the district commander, and signed off by PPS management, as being suitable to receive donations. The district prosecution manager and district commander will consider applications for their district's list annually. A donation must be given to only one approved group. Make donations in order of your approved list to ensure an approximately even distribution of money each year. Amount of donation The donation amount must be within what the court would impose for the offence plus costs. If the maximum penalty for the offence is a fine of up to $2,000, the donation must not exceed $500. Where the maximum penalty for the offence is a fine of over $2,000, the amount of the donation must be the lower of either: one quarter of the maximum penalty for the offence (if the offender had been convicted) $750. The donation amount should also take into account the other conditions in the agreement. In particular, take into account any counselling fees the offender has paid as they may be sufficient without a donation needing to be paid. If counselling fees have been paid, the balance should be made as a donation. Police must not handle cash (general instruction CO40). Donations must be either: Paid to the charity by the offender and an official receipt supplied to the diversion officer A bank cheque in the charity s name (not made out to cash) and posted by the diversion officer to the charity A bank deposit form for local charity completed and stamped by bank. page 17 of 24

18 The offender must bring or return either the receipt or payment to the diversion officer at least three days before their next court appearance. Service to the community Voluntary service to the community may hold the offender accountable but the number of hours must be: reasonable and in proportion with what might be imposed by the court if the offender was convicted able to be completed before the next court appearance. Service to the community can only be done for: A non-profit organisation that benefits the community generally The victim or a person or organisation named by the victim (where the victim agrees and this is considered appropriate by the diversion officer) Extended families or whänau, where appropriate. The offender must choose from the range of approved organisations. Approved organisations for service to the community Each district prosecution manager must create, use and maintain a list of appropriate organisations which meet the criteria. This list will be updated annually by district prosecution managers and signed off by PPS regional managers. Work at police station Work at a police station is not acceptable unless police members or property were the victim. If the victim is a police member, the community service done at the police station must be supervised by someone other than the member involved. Attendance sheet The offender must bring their completed attendance sheet back to the diversion officer at least three days before their next court appearance. The accuracy of the records may be checked by the diversion officer with the organisation's contact before the next court appearance. Restorative justice (RJ) in diversion Restorative justice is defined as: a way of thinking about crime a process for responding to crime. It provides "an alternative framework for thinking about wrongdoing" which, along with the values and principles underpinning this framework, suggests new ways of responding to offending and victimisation. RJ is a victim-focused process. Although restorative justice processes are not unique to Maori, they have strong alignment with Maori values such as reconciliation, reciprocity and whänau involvement. In some circumstances it may be appropriate to consider whether Police, through the diversion officer, can provide the most holistic approach to the offender to enable the diversion intervention to provide meaningful rehabilitation and reparation. There may be particular cases where, following the diversion interview but before settling on conditions and an agreement, it would be appropriate to address the page 18 of 24

19 offending in a more holistic manner through involving the victim and community members to reach a more enduring outcome for the offender and victim. Alternatively, restorative justice facilitators may be able to facilitate a face-to-face meeting between the offender and the victim, without having any additional conditions needing to be completed. Three prerequisites to diversion referral When Police use restorative justice within diversion, it must comply with the Principles of Best Practice for Restorative Justice Processes in Criminal Cases ("Best Practice for RJ"). All three prerequisites must be met before a referral is made: Approved RJ provider available in the diversion area Victim consent and participation Diversion interview must have occurred with approved diversion officer. Approved RJ provider available in the diversion area A diversion officer may only make referrals for restorative justice where there is an appropriately approved restorative justice provider within the community who has capacity and has agreed to deliver RJ in diversion within their contract with the Ministry of Justice. Only Ministry of Justice-approved and funded restorative justice providers (and community panels) are appropriate. District prosecution managers are given a current list of providers for each financial year, updated when necessary. Before a case can be referred to, or accepted for, a restorative justice process, the offender must acknowledge responsibility for the offence. RJ processes must hold the offender accountable, Principle 4 Best Practice for RJ. Victim consent and participation The victim must consent, in an informed manner before a restorative justice process may proceed. In family violence cases use caution when using restorative justice. In most instances the restorative justice approach should occur with the victim s involvement. The victim may be present or their views being obtained pre-meeting and represented by the RJ facilitator or community member to the offender. Full participation of the victim and offender should be encouraged, Principle 2 Best Practice for RJ. In some cases it may be appropriate to make a restorative justice referral where there is no direct victim and the indirect victim is the community at large. Examples are where communities feel unsafe due to disorder and theft offences or are affected by graffiti (through repair costs to ratepayers or how it affects their feeling of community). Note the focus for restorative justice should be that a direct victim is involved in the process. Diversion interview must have occurred with approved diversion officer Make the referral after the diversion interview but before a complete diversion agreement is signed. The diversion agreement with the offender should reflect that an RJ referral is made as part of diversion. Include in the referral any issues which should be considered by the RJ provider to form part of the agreed plan. The conditions suggested in the referral are the basis for the discussion; the referral will not state what must be agreed. Outcomes must be arrived at page 19 of 24

20 voluntarily and reflect the agreed view of the victim and offender, Principle 1 Best Practice Principles of RJ. Outcomes must be developed and agreed by the victim and offender (as the primary participants) without coercion. RJ facilitators must ensure the victim and offender understand what has been agreed, including what is required for agreed outcomes to be completed. Reaching agreement on outcomes should not be the sole focus of the restorative justice process. RJ processes RJ providers will arrange a meeting between the offender and the RJ provider, which will include a facilitator or coordinator, community members and sometimes a member of Police where a local agreement has been made. Principle 2 of the Best Practice Principles states that 'Professionals' (Police officers, probation officers, and defence counsel) may attend a RJ conference, but on a carefully prescribed basis - they may attend and offer advice and support, and ensure that offending is not minimised. However, they are not parties to any agreement and should not dominate discussion. A victim advocate and/or a support person may also attend. When a referral for RJ has occurred, RJ providers must give the diversion officer a copy of the agreed actions as soon as practical after the meeting. The RJ provider will advise if the adjournment period is not long enough to complete the conditions, so an adjournment under s45a Summary Proceedings Act 1957 can be arranged. After the meeting between the offender and the RJ provider, if it is determined that a RJ approach cannot proceed, the RJ provider will promptly advise the offender to contact the diversion officer again to explore police diversion. The diversion officer will also be advised. The RJ provider will ensure the prosecutor is given a report on the offender's compliance with the conditions of the RJ meeting at least three working days before the next court appearance date. This report will include: copies of the relevant letters original receipts and attendance sheets to provide evidence of compliance. If the offender has not yet completed all of the conditions, the RJ provider will advise if another adjournment is appropriate, and if so, the length of adjournment required. All agreed outcomes must be monitored, Principle 4. Monitoring compliance The offender must give the diversion officer proof of completing the diversion conditions no later than three days before the offender s next court appearance. Completion proof includes (where relevant): Receipt of the letter of apology to send - to the victim by the approved diversion officer. Receipt for counselling fee payment (where appropriate) and a report on attendance and response. Receipt for donation payment (or other means of payment, taking into account Police general instruction CO40 Handling diversion money, for sending to approved organisation) Receipt for reparation payment (or other means of payment, taking into account Police general instruction CO40 regarding Handling diversion money, for sending to the victim) page 20 of 24

21 Completed attendance sheet for community service. Report from a restorative justice provider on compliance with their agreement. You must make any enquiries about the validity of the receipts, reports or attendance sheets before the next court date. Further adjournment A further adjournment may be sought from the registrar, under s45a Summary Proceedings Act 1957, where there is an early indication that the conditions cannot be completed within the timeframe, and that additional time would be appropriate due to the offender's response. If the diversion officer after discussion with those involved, considers diversion is not salvageable the case will proceed through the prosecution process Completing diversion When diversion has been completed to the diversion officer s satisfaction, they must send a letter to the registrar (under section 36(1A) Summary Proceedings Act 1957). The letter will seek the leave of the court to withdraw the charge due to successful completion of diversion. The letter will also apply for the offender to be excused from appearing in court and may cover the Police's position on permanent name suppression (s36(1b) Summary Proceedings Act 1957). If an offender wishes to seek permanent name suppression they will need to appear in court. PPS must update NIA with the diversion records once the Registrar has withdrawn the information. Then return the file to the OC case, with an accompanying memo covering the completed diversion conditions for victim notification of the outcome, the return of exhibits and file completion. Approved diversion officers Process for PPS It is important that the person who makes the decision to consider and offer diversion has the authority to make and be responsible for the decision. The diversion decision should only be made by a police member who is trained and fully understands the criteria for considering and offering diversion and the overall purpose of diversion. Diversion involves making sound judgments about the nature of the offence and the suitability of the offender for diversion. The latter particularly applies when considering any special circumstances. The diversion officer should preferably be a diversion-trained prosecutor and, in the absence of a prosecutor, diversion should be carried out by a diversion-trained NCO. All prosecutors within the PPS will be trained as "approved diversion officers". Each district prosecution manager will have a list of approved diversion officers in their office, or who are district staff who have been approved and trained to perform the role of the approved diversion officer. Approved diversion officers The PPS has 41 offices around New Zealand to service the 64 district courts, some of which have a circuit attendance at court without a fixed office base in the town. However, this means that not all of New Zealand is serviced by a PPS office, page 21 of 24