Director of Public Prosecutions v Clarke

[2023] ACTSC 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director of Public Prosecutions v Clarke

Citation:

[2023] ACTSC 53

Hearing Date:

17 March 2023

DecisionDate:

17 March 2023

Before:

Baker J

Decision:

I make a referral to Restorative Justice pursuant to s 24 of the Crimes (Restorative Justice) Act 2004.

I make an order pursuant to s 46C (3) of the Crimes (Sentencing) Act 2005 for the preparation of an Intensive Correction Order Assessment Report.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Restorative Justice Referral – requirement under s 25 for court to explain the Restorative Justice process to the eligible offender – satisfied that offender understands purpose and nature of Restorative Justice – satisfied that appropriate to refer the offence for Restorative Justice

Legislation Cited:

Crimes Act 1900 (ACT), s 29A

Crimes (Restorative Justice) Act 2004 (ACT), ss 24, 25

Crimes (Sentencing) Act 2005 (ACT), s 46C (3)

Parties:

ACT Director of Public Prosecutions ( DPP)

Kevin Clarke ( Offender)

Representation:

Counsel

N Deakes ( DPP)

T Jackson ( Offender)

Solicitors

ACT Director of Public Prosecutions

Andrew Byrnes Law Group ( Offender)

File Numbers:

SCC 297 of 2022; 298 of 2022

BAKER J:

1․The offender invites me to make a referral of this matter to Restorative Justice under s 24 of the Crimes (Restorative Justice) Act 2004 (ACT) (“the Restorative Justice Act”).

2․The parties agree that before I can make such a referral, I must be satisfied of the following matters:

(i)The offence is a “serious offence” (s 12 of the Restorative Justice Act);

(ii)The offender is an “eligible offender” (s 19 of the Restorative Justice Act);

(iii)There is an “eligible victim” (s 17 of the Restorative Justice Act); and

(iv)It is otherwise appropriate in the exercise of my discretion to make the referral (s 24 of the Restorative Justice Act). 

3․There is no dispute that each of these are satisfied. The offence, CC2022/4022, drive at a police officer (contrary to s 29A of the Crimes Act 1900 (ACT)), is a “serious offence” within the meaning of s 12 of the Restorative Justice Act. It carries a maximum penalty of imprisonment for 15 years. I note that the offender has entered a plea of guilty to that offence. The offender is an “eligible offender” within the meaning of s 19 of the Restorative Justice Act. There is no dispute that there is an “eligible victim” within the meaning of s 17 of the Restorative Justice Act.

4․I am also satisfied that it is otherwise appropriate in the exercise of my discretion to make the referral. It is apparent from the Agreed Statement of Facts that harm, including psychological harm, may have arisen from the commission of the offence. In these circumstances, I am satisfied that an order for Restorative Justice is appropriate.

5․Accordingly, I propose to make an order for Restorative Justice.

6․Before I do so, s 25 of the Restorative Justice Act requires that I must ensure that “reasonable steps are taken” to explain (in language that the offender can readily understand) the following matters:

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

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

(i) the nature of a restorative justice conference;

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

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

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

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

(e) if the offender has not entered a plea in relation to the offence—that the offender is not prevented from pleading not guilty to the offence only because section 19 (1) (b) (i) applies to the offender; and

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

(i) may consider whether section 19 (1) (b) (i) applies to the offender, but is not required to reduce the severity of any sentence as a result; and

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

7․Although the offender has received some explanation about restorative justice from his lawyers, the parties have requested that I also provide the offender with an explanation of the matters prescribed by s 25. I will do that now:

Mr Clarke. I understand that you have received some information from your lawyers about Restorative Justice.

Under the Act, I need to be satisfied that you understand what Restorative Justice is and how it works. 

A Restorative Justice conference is an opportunity to talk about how the offence occurred, how it affected the people involved and what can be done to make things better. In your case, it will involve a conversation between you and Officer McCarthy. 

I need to emphasise that the conference will only take place if everybody agrees to take part.  My referral does not necessarily guarantee that the conference will take place. If Officer McCarthy does not wish to participate, it will not happen. If there is some other reason why an assessment is made that the Restorative Justice conference cannot take place, you will be notified of that.

If the conference does occur, it may take place in person or indirectly. It could occur online.  It can also occur by way of exchange of emails or letters, or even you conveying messages to Officer McCarthy.

The conference will be run by an experienced and highly trained convenor. That convenor will ensure that whatever form the conference takes, it will be performed in a manner that is safe, respectful, and positive to all.

All conferences are different. I cannot tell you exactly what will happen. I cannot tell you if it will be direct or indirect, or exactly what the conversation will involve. I can say that, if it is in person both you and Officer McCarthy will be able to bring support people to assist you. Either you or Officer McCarthy can also send somebody to speak on your behalf if you or Officer McCarthy find it difficult to talk about the offence in person.

Critical to the success of Restorative Justice is the acceptance of responsibility. Owning your actions is the first step toward healing for all. You will need to think about what happened and how Officer McCarthy and those who are close to him may have been affected by your acts. You also need to think about what can be done to restore or to rectify the harm caused.

At the end of the conference there may be what is called a Restorative Justice agreement.  It is not compulsory to have an agreement but if all participants agree and want to go ahead with an agreement, then the convenor will help to put an agreement together and to report on its progress. 

The agreement can include things that are identified by you that you could do to repair the harm caused or to stop future harmful behaviour. The person harmed, that is, Officer McCarthy, can explain what he wants or needs to help make things better and what you can do to repair the harm or the damage caused and what you can do to prevent the offending from happening again.

You need to be reassured that the convenor will ensure that an agreement will be fair and achievable. Agreements are not designed to cause you any distress or humiliation. You will not be forced to enter into an agreement if you do not want to enter into it.

If you do decide to enter into an agreement, then the agreement will be signed by everybody who attends the conference.

I understand that you have received some independent legal advice about taking part in the Restorative Justice. You should continue to speak to your lawyers if you have any questions at all about what the process involves or any questions about what I have said to you today.

I emphasise that you need to understand that no one, including you, has any obligation to take part or continue to take part in the conference.  This means Officer McCarthy can decide not to take part and even once the conference has started, he can decide that he does not want to take part anymore. That also goes for you. Even after this referral, if you decide that you do not want to take part that is okay.  Restorative Justice is not a compulsory process.

You also need to understand that when I sentence you, I will not be required to reduce the severity of any sentence as a result of you taking part in Restorative Justice, but it is something that I can take into account.

If you decide not to take part in the conference that will not be held against you. If you decide not to take part in the conference that is a matter for you and it will not cause your sentence to be higher or lower as a result.  Do you understand?

Orders

8․I make a referral to Restorative Justice pursuant to s 24 of the Restorative Justice Act.

9․As agreed by the parties, I will also make an order pursuant to s 46C(3) of the Crimes (Sentencing) Act 2005 (ACT) for the preparation of an Intensive Correction Order Assessment Report.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Gallagher

Date: 22 March 2023

Amendments

24 March 2023 Replace “ACT Legal Aid” with “Andrew Byrnes Law Group” Judgment cover sheet, under heading “Solicitors”