Ten Years On, the ‘Three Circle’ model of Restorative &Transformative Justice: a tool to combat victimization

and recidivism

Dr Dot Goulding Senior Research Fellow, Centre for Aboriginal Studies,Curtin University of Technology

Dr Brian SteelsSenior Research Fellow, Centre for Aboriginal Studies,Curtin University of Technology

Abstract:This paper had its genesis ten years ago in the authors’development of a communitarian ‘three circle’ model ofrestorative and transformative justice for a pilotrestorative justice study used with serious and repeatadult offenders appearing in the Magistrates’ Courts inWestern Australia. The model was designed in part toplace their crimes within a context, something that mostoften does not occur within the mainstream adversarialcriminal justice system in Australia. Although primarilythe model was designed to provide victims of crime withthe best outcome and offenders with the opportunity toprovide apology and restitution, as well as takeresponsibility for their actions.

The three circles, each including two facilitators,are:Circle 1: consists of the perpetrator who has pleadedguilty to a specified criminal act together with his/herfamily and/or friends;Circle 2: consists of the victim(s) of the crime togetherwith their family and/or friends.Circle 3: consists of a combination of the first twocircles, tasked to seek if possible, a mutually agreeableresolution that culminates in a report to present to theMagistrate in court to use in mitigation of sentencing.Importantly, although the 30-month study had socially andeconomically significant results, ten years after itscompletion there is still no restorative justice programin the adult courts in Western Australia. Because ofthis, the authors also set out to question the state

government’s motivation in largely ignoring thissuccessful process.

Key Words Restorative and transformative justice –neutralization – victimization – recidivism

Introduction

In 2000 when the idea for the pilot study originated, itwas clear that there was no restorative justice processin place within the adult criminal justice system inWestern Australia. This meant that there was nooperational restorative justice service to research. Withthis in mind, the original concept of the communitarianrestorative and transformative justice model came aboutfrom collaboration between the authors, Dr Dot Gouldingand Dr Brian Steels. From this collaboration theaforementioned model was developed into a manageable twoand a half year project, running from the beginning ofMay 2000 to its completion at the end of October 2002,exactly ten years ago at the time of writing. For thepurpose of this paper the authors have definedrestorative justice as:

An approach to justice that focuses on repairing theharm caused by crime while holding the offenderresponsible for his or her actions, by providing anopportunity for the parties directly affected by acrime – victim(s), offender and community – toidentify and address their needs in the aftermath ofa crime, and seek a resolution that affords healing,reparation and reintegration, and prevents futureharm (Cormier, 2002).

Broadly speaking, restorative justice is a process thatinvolves active victim participation, requires offendersto take responsibility for the harm they have caused andto make apology and amends to their victims. One of thefundamental principles of restorative justice is a willto restore ‘the balance between the victim, the offenderand the community’ (Coyle, 2001). Keeping in mind that,‘in many respects the victim is badly served by ourcurrent adversarial system of criminal justice’ (Coyle,2001). Restorative justice also seeks to bring all

parties, victims, offenders and communities of interesttogether tasked to achieve some form of reconciliationthrough a mutually acceptable outcome.

It is also important to note from the outset thatrestorative justice constitutes a move from head toheart. That is, the restorative process is emotional andcompassionate in nature and does not fit well within apurely bureaucratic frame. Restorative justice processesinvolve the notion of re-integrative shaming rather thandisintegrative or stigmatic shaming. In essence, this isshaming of the act rather than the actor. Braithwaite(1989) describes the notion of re-integrative shaming inthis way:

Re-integrative shaming means that expressions ofcommunity disapproval, which may range from mildrebuke to degradation ceremonies, are followed bygestures of reacceptance into the community of law-abiding citizens… disintegrative shaming(stigmatization), in contrast, divides the communityby creating a class of outcasts.

Braithwaite (1989) and Tyler (1990, 2006) also contendthat re-integrative shaming is most effective when usedin the presence of significant others – relatives and/orclose friends. Thus it was recognized from the outsetthat ‘the restorative justice process could only beeffective where there was some form of emotional orsocial connection between the offender and others presentwithin the restorative justice conference’ (Goulding &Steels, 2006). Indeed, Social relationships are seen ascentral to successful rehabilitation of offenders. Marunaand Immarigeon (2004) note that ‘the major correlates ofdesistance from crime, identified in research, involveongoing, interactive relationships that can take up mostof an individual’s waking life’. Farrall, (1995), tooargues that, generally speaking, desistance to crime‘occurs away from the criminal justice system’.

Background to the study

The authors’ background as prison reformers as well astheir general frustration with a failed criminal justice

system that did not meet the needs of victims, offendersor community, led them to eventually develop their ownrobust model of restorative and transformative justice.The mainstream adversarial system had failed to reducevictimization and high levels of victim dissatisfactionprevailed. Victims did not feel well represented withinthe court system and were often left fearful for theirsafety and general wellbeing. In addition, offenders werebeing imprisoned more often and for longer periods oftime yet fear of crime was ever prevalent throughout theWest Australian community despite Western Australiahaving the highest incarceration rate of all Australianstates at around 220 per 100,000 of the population(Australian Bureau of Statistics: 4517.0, 2002). Indeed,ten years on and Western Australia still boasts thehighest incarceration rate of all Australian states andthat rate has increased phenomenally by around 50 percent now standing at 322 per 100,000 of the population(Australian Bureau of Statistics: 4517.0, 2012). One ofthe major features of the Australian criminal justicesystem has been the extraordinary growth in prisonnumbers. The Australian Institute of Criminology monitorsprison numbers in Australia and notes that the averageprison population in Australia has grown by 5 per centeach year between 1984 and 2004 (Australian Institute ofCriminology, 2007). In summary, it would be fair to saythat the Western Australian criminal justice system inits entirety, from the police service through the courtsto the prison system and beyond has failed miserably toreduce crime and its related impacts.

In support of the notion that increased levels ofimprisonment do not necessarily reduce crime rates, Coyle(2001:6) argues that:

One should be very cautious of any suggestions thatan increased use of imprisonment is an efficientform of crime control. There is little evidence fromanywhere in the world that there is any relationshipbetween high rates of imprisonment and low rates ofcrime. Indeed the contrary is often the case. Highrates of imprisonment are frequently an indicator ofthe breakdown of community values.

Although the prison authorities provided a variety ofrehabilitative programs within West Australian prisons,these failed to effectively challenge offending behavior,as the recidivism rate continuously remained high. It wasthe ineffectiveness of prevailing rehabilitation programsand the ‘revolving door’ syndrome that concerned theauthors. The criminal justice system appeared to befailing in its core functions – those of deterrence,rehabilitation and, ultimately, community safety. Itseemed to the authors that the so-called rehabilitativepractices in place within the prison system were treatingthe offender ‘as an object to be manipulated rather thanas a responsible moral agent’ (Duff and Garland,1994:10). In short, the criminal justice system,particularly the increasing use of imprisonment as a toolof first resort, appeared to be reproducing criminalityand, consequently, more victims including secondaryvictims amongst offenders’ families. Foucault (1977:266)puts it this way:

The prison cannot fail to produce delinquents. Itdoes so by the very type of existence that itimposes on its inmates: whether they are isolated incells or whether they are given useless work… Theprison makes possible, even encourages, theorganization of a milieu of delinquents, loyal toone another, hierarchized, ready to aid and abet anyfuture criminal act… Lastly, the prison indirectlyproduces delinquents by throwing the inmate’s familyinto destitution.

Against this background, the authors began to search foralternatives that might afford meaningful inclusion ofboth victims’ and offenders’ needs. Restorative Justiceprocesses provided a positive starting point, appearingto be one possible part of the solution wherein both theinterests of the victim and the opportunity for theoffender to take responsibility for their actions couldbe accommodated.

The goal was to find or develop a model thatencompassed the ideals of both restorative andtherapeutic processes and outcomes in order to provide anopportunity for victims and offenders to feel satisfied.The model would clearly need to challenge offending

behavioral patterns and encourage responsibility takingin offenders. Sykes and Matza (1957) refer to offenders’levels of denial of responsibility for their criminalactions as ‘neutralizations’. In their work with juvenileoffenders, Sykes and Matza (1957) outlined severalstrategies whereby offenders deny responsibility fortheir crimes, victimization, injury, as well as claimingcondemnation of their condemners and an appeal to higherloyalties.

Subsequently, the authors, together with some like-minded people formed a community organization –Restorative Justice Western Australia (RJWA), a grassroots community group of people from all walks of life,including church organizations, victims’ groups,concerned individuals and prison reform groups. RJWAbecame the conduit for regular discussions on the variousRJ models and ways in which restorative processes couldbe introduced into the criminal justice system in WesternAustralia. The authors argued consistently for a holisticcommunitarian model, citing the many obvious flaws of thebureaucratic pseudo restorative process at play in thejuvenile justice system. The ‘Juvenile Justice Team’process included the presence of uniformed members of thecriminal justice system – police and juvenile justiceofficers. It rarely included the presence of victims andwas weighted in favor first time offenders, thusexcluding repeat offenders who, arguably, caused moreharm in the community than their ‘first time’counterparts. Ten years on, the authors continue tocontend that repeat offenders generally produce morevictims and so are in need of a process that might serveto reduce their offending behavior patterns. In this way,victims of repeat offenders are discriminated against asthey are excluded from participating in the pseudorestorative justice process used by the Juvenile Justiceteams.

Within a few years RJWA had run its course and theInstitute for Restorative Justice and Penal Reform(IRJPR), a more formalized organization, was established.IRJPR continued to provide support to the authors throughongoing discussions, keeping up with international trendsand the sharing of knowledge and ideas. IRJPR members

were in general agreement that a community-based model ofRestorative Justice would only gain government, judicialand community approval if it was thoroughly researched,evaluated and found to be beneficial to the broadercommunity. With this in mind, the authors visited NewZealand to examine several established restorativejustice programs. These included the police run ‘ProjectTurnaround’ in Timaru, South Island and a community runmodel in Auckland. They also met with key restorativejustice academics at the Victoria University ofWellington as well as the then Under Secretary forJustice, New Zealand. Finally, they approached keyacademics at Murdoch University School of Law and enteredinto discussions to formulate a restorative justiceresearch proposal.

Community consultation: setting up a Restorative &Transformative Justice service in the courts

Several key people and organizations assisted the authorsin the progression of the Restorative & TransformativeJustice (R&TJ) model from an idea to a practical servicein the courts. These were: the then Director of CommunityCorrections, David Daly; the Deputy & Chief StipendiaryMagistrates from Central Law Courts, Perth; twoMagistrates from Fremantle Courts; Police ProsecutionsBranch (Fremantle & Perth); duty lawyers, AboriginalLegal services; Legal Aid; two local Domestic Violencegroups, church organizations, Heads of Churchescommittee; Victim Support Services (DOJ). The communityconsultation process was both complex and lengthy asvarious individuals, groups and government departmentssought to find safeguards for their particular interestgroups and to influence the direction of the developmentof the model and which crimes it should target. Also, theproposed communitarian R&TJ model was the first of itskind in Australia to target serious and repeat adultoffenders through a radically different process than thatalready established within the mainstream court system.

Prior to commencement in the courts, informationsessions about the pilot study were provided to severalinterested groups. Police prosecutions displayed a strong

degree of cynicism towards the model, arguing thatoffenders would see the process as a soft option ratherthan a pathway to a law-abiding lifestyle. Duty lawyersand lawyers already engaged to represent defendants aswell as Legal Aid and Aboriginal Legal service lawyersopted to use the service. Initially, Victim SupportServices (VSS) became involved as liaison between therestorative justice team and victims. The processhowever, was cumbersome and never led to a successfulcompletion or even a successful victim contact within thecourt specified timeframe (usually 21 days).Subsequently, under directions from the Chief StipendiaryMagistrate, the restorative justice team approachedvictims directly and the vast majority of cases were thencompleted within the allotted timeframe.

It was obvious, throughout the life of the studythat bureaucratic tensions existed particularly when VSSwas excluded from the process. The then Department ofJustice (DOJ) hierarchy opined that the restorativejustice team had no right to deal directly with victimswho were viewed to be ‘owned’ by VSS. The authors contendthat this was a major contributing factor to thedepartment’s subsequent decision not to adopt the R&TJmodel in its communitarian form, notwithstanding thestudy’s socially significant results. King and Ford(2006) also describe the lack of support and hostileattitude from the DOJ hierarchy to the GeraldtonAlternative Sentencing Regime (GASR) pilot programwherein they ‘continued to struggle to gain resources andrecognition’.

Domestic violence groups expressed real concernsregarding the use of the communitarian R&TJ model forassault cases involving domestic abuse. Because of theseconcerns the authors entered into extensive discussionswith the groups. Their concerns were centered on the veryunequal power relationships at play in the area ofdomestic and family violence. On the one hand, thedomestic violence support groups were concerned thatvictims would be coerced into participation in therestorative process by their abusive partners. On theother hand, the authors did not want to deny domesticviolence victims the right to participate if they elected

to do so. The authors described the ways in which, unlikethe mainstream court process, the R&TJ process was ableto identify the often-serial nature of domestic violenceoffenders even though they may be presenting at court asfirst time offenders. It was suggested that first timeoffenders facing the mainstream court process couldeasily argue that the violence was out of character, anisolated incident. In these cases the offender wasunlikely to be ordered to undergo any form of angermanagement or alternative to violence treatment. Whereasthe restorative process, in readily identifying violentbehavioral patterns, meant that the sentencing magistratewas more likely to order offenders to undergo some formof program or treatment to address the violent behavior.In the event, agreement was reached and safeguards wereput in place. Assault cases involving domestic violencewere allowed to proceed through the R&TJ process withdomestic violence support groups providing support forvictims. Additionally, a forty-eight hour cooling offperiod was established for domestic violence victimselecting to participate in the restorative process. Ofthe referrals to the study, seven cases involved domesticviolence assaults and all of these resulted in mutuallyagreeable resolutions. In the first instance the authors had approached themagistrates presiding in the Fremantle Court of PettySessions. This became the first court to refer a case tothe restorative & transformative justice process. Theauthors then met with the Chief & Deputy ChiefStipendiary Magistrates in Central Law Courts, Perth. TheDeputy & Chief Stipendiary Magistrates elected toestablish the pilot study in Court 37 at Central LawCourts. This was the court that both aforementionedmagistrates presided over. In Court 37 the authors wereinstructed where to position themselves and how to actwithin the formal court process. Both magistrates choseto refer cases to the ‘restorative justice team’ and,following their example, duty lawyers also referredcases. Whereas in Fremantle courts the authors wereexpected to find their own cases and to formally ask toapproach the bench and describe why such cases weresuitable for referral to the R&TJ process.

Developing the model

As previously mentioned, there was no wholly restorativejustice process in use in Western Australia so it wasclear that the model had to be developed and thesubsequent R&TJ service set up through the authors’extensive consultation with statutory bodies such as thecourts, the police and interested community groups. Italso became clear that the authors would have to providethe service themselves. In addition, they would have tocollect all data for the study. With hindsight, theauthors’ working as service providers as well ascollectors of data, was a major positive in terms oftweaking and molding the model at grass roots. Such firsthand experience of delivering the service provided themwith an in depth knowledge of the intended and unintendedconsequences of the process as and when they occurred.This first hand experience allowed the authors tounderstand that a ‘one size fits all’, proscriptiveapproach to restorative processes would not functioneffectively and that there was a constant need forflexibility of approach, although ensuring that theunderpinning ethos of restorative justice was heldsacrosanct.

In the event, and in collaboration with CommunityCorrections (DoJWA) Director, David Daly (IndustryPartner), and Guy Hall from Murdoch University’s LawSchool, a successful Linkage grant application from theAustralian Research Council (ARC), together with the thenDepartment of Justice, Western Australia as IndustryPartner ensured that the study would go ahead. The studywas funded for 30 months. It was agreed that the proposedmodel had to take account of a combination of practicesthat supported victims and their support networks toparticipate in a process where they were able to hearapology, seek reparation in a safe and secure environmentand provide or withhold any degree of forgiveness. Inaddition, the model had to provide offenders theopportunity to take responsibility for their actions,provide apology and reparation to their victims, tochallenge their offending behavior and, finally to be

able to successfully reintegrate into the community aslaw abiding citizens.

The proposed three circle model was developed fromtaking account of a combination of internationalpractices mainly originating from the Indigenous peoplesof New Zealand and Canada and adapting these to suit theurban Western Australian situation. It is important tonote here that the study took place in the metropolitanarea of Perth, the capital of Western Australia. This wasfor both economic and logistical reasons. WesternAustralia is a vast geographic expanse with the majorityof its population residing in and around the capitalcity. It is also important to note that since the studywas completed, the authors have worked on the culturalflexibility of the model to include healing circleswithin regional and remote Indigenous communities.

Fair process was viewed as crucial to the legitimacyof the model of restorative justice to be used. Tyler(1990) in his early text Why People Obey the Law indicatedthat when a person feels that they have been treatedunfairly this disrupts ‘ the relationship of legitimacyto compliance’. In short, if a person is dealt with inwhat is perceived as an unjust or unfair manner theresult is likely to be non-compliance and/or resistance.Consequently, the authors were aware that not only hadthe process to be fair but it had to be seen to be fairand just if it was to have a positive impact on allconcerned.

It was decided that a communitarian or ‘bottom up’model was best suited to the study. The model shouldculminate in a face-to-face meeting between the offendergroup and the victim group in a community groupconference setting (CGC) to try and repair the damagecaused by the offender and to attempt to reach a mutuallyagreeable resolution. This model views crime as arelational act that results in a fracturing ofrelationships within a community, which itself holds thekey to healing the effects of crime. The model alwaysinvolves using two independent facilitators (one male;one female), with the primary participants being victims,offenders and their support networks rather than membersof statutory bodies such as police and courts. In this

model, offenders who admitted guilt in the courts wereable to be referred to the restorative justice team (theauthors) and thus become part of the pilot study. Theselected process included a holistic problem-solvingapproach with offenders as well as a community groupconference involving victims and their supports. Inessence the model was a hybrid that utilized thecommunity group conference process in three separatecircles (offenders and supports; victims and theirsupports; face-to-face meeting between the two groups)tasked to seek a mutually agreed resolution and provide acomprehensive report to the court. The report could thenbe used by the magistrate to view the criminal act withina context and in mitigation of sentencing. In this waythe CGC model was both restorative and transformative innature and satisfied the legitimacy of the mainstreamcourt system. In this study the offender was alwaysreturned to court for sentencing.

This particular study focused the research on fairlyserious and repeat criminal offenders who might befacing, or on the cusp of, custodial sentences within theCourt of Petty Sessions. The Court of Petty Sessions orMagistrates’ Courts can hand down prison sentences of upto 3 years. Using serious and repeat offenders was adeliberate strategy to pre-empt any challenge that therestorative process could only work with victims andoffenders of petty crime. The charges specific to thestudy were theft/stealing; stealing as a clerk orservant; burglary including aggravated burglary; fraud;assault including common assault and assault occasioningbodily harm.

The authors set out to test both the effectivenessof this model in gauging victim perceptions of fairnessand justice and personal security as well as challengingcriminal lifestyle in serious and repeat offenders. It isimportant to stress that the model tested in the studywas court sanctioned and not diversionary and that alloffenders were returned to court to be sentenced. It wasfelt that first time and non-serious offenders could bemore effectively dealt with through a court diversionprogram. Additionally, the authors were of the opinionthat a single community group conference would not

necessarily be an effective deterrent to further criminalactivity, especially amongst repeat and serious offenderswho had already established criminal behavior patterns.Although it was thought that the CGC would effectivelypersonalize criminal actions and encourage apology andfeelings of remorse in offenders while also affordingmeaningful engagement of victims, it was felt that astronger engagement with offenders and their supportnetworks was necessary to increase the likelihood ofturning around the lives of those already entrenched incriminal lifestyles.

To this end the following model of restorative andtransformative justice was used throughout the study.Although it is necessary to reiterate that the modelevolved somewhat throughout the thirty months of theproject’s life. The model has proven to be flexible andis able to be adapted to diverse cultural and socialapplications. In this way, the R&TJ model came into beingand was tested in the local courts with the approval ofrelevant statutory bodies and community organizations. Tothe authors’ knowledge, no other similar communitarianrestorative justice model had, at that time, used atransformative component as part of its approach tohealing the effects of crime in communities. The authorscontinue to argue, ten years on, that using thecombination of restorative and transformative processeseffectively encourages offenders to challenge their own‘neutralizations’ and encourage responsibility taking fortheir actions, providing them with an opportunity toaccept both process and outcomes as being fair and just.

THE COMMUNITY GROUP CONFERENCE MODEL

The CGC process is always voluntary for all parties. Thatis the ideal. However, the authors noted that throughoutthe study the presiding magistrates sometimes applied alevel of coercion in order to ‘encourage’ offenders toparticipate. This was usually by thinly veiled threats ofimpending imprisonment. No coercion was used on victims.It was imperative that victim participation was alwaysabsolutely voluntary.

The model is designed to provide victims to be ableto receive information directly from the court regardingthe offender’s responsibility taking for the crime andits impact. This is done through a guilty plea. Also, themodel provides assistance to the victim and theirsupportive others in preparation for a face-to-facemeeting with the offender and their supportive others.Victims were also given the opportunity to participate ata level they felt comfortable with, which meant that allcases did not proceed as far as the CGC stage. In onecase a surrogate victim was used because the actual victimwas geographically distant and requested a specificrepresentative from the organization that had been harmedby the offender.

For offenders the model involves, upon a guiltyplea, the opportunity to meet their victims within a CGCsetting provided they are willing to involve theirsupport networks of family and/or friends. The authorswould not work with offenders in isolation. The rationalefor this is that the circle of offender and supportiveothers is designed to identify underlying issues that mayhave led to the offence and/or offending lifestyles. Thisprocess was named the Mutually Agreed Plan (MAP). The MAPprocess was modified to sit comfortably within theRestorative Justice process, ensuring that thetransformative component was included. In this way theauthors were able to claim a more robust engagement withoffenders than could be claimed in previous models. Thus,the model became known as the communitarian model ofrestorative and transformative justice.

The notion of MAPs is only initiated when theoffender agrees to proceed to a CGC with the victim andtheir supports. Not all cases in the study completed boththe restorative and transformative stages (MAP plus CGC).However, those offenders who engaged with their supportnetworks in the MAP process actually engaged with the re-integrative shaming process that underpins therestorative ethos. Through the MAP process offenders wereable to comprehend the harmful manner in which theiroffending behavior had impacted upon their family and/orfriends. This, in turn, provided the victim with anindication that the offender was attempting to take

responsibility and move towards a more positivelifestyle. The MAP when applied to offenders, alsoprovided the court with a report that placed the crimewithin a context by identifying underlying issues thatmay have led to the offence and/or criminal lifestyles.The MAP also served to provide the offender with arealistic future plan that may involve therapeuticprograms and other community supports based upon personalstrengths and ongoing support from others.

CGC: Chronology of events

1. In court the offender enters a guilty plea2. If offender agrees to participate in the Restorative

and Transformative Justice (R&TJ) process themagistrate or judge suspends sentencing during a‘stand down’ of court proceedings. The MAP processis discussed and arrangements made to meet in thefirst circle setting (offender plus family and/orfriends). This meeting usually takes place in theoffender’s home or the home of one of the supportiveothers. During this meeting (which may be one ofseveral such meetings) the offender and supportswill identify any underlying issues and work towardtheir future plan.

3. Once the offender has agreed to participate togetherwith their support networks then the victim iscontacted. This is to ensure that victims are notfurther disadvantaged if they agree to participateand then the offender declines. Victims are alwayscontacted in person or, failing that, via telephone– never by letter as the authors considered this tobe too impersonal. Victims are then informed thatthe case has gone to court and that the offender haspleaded guilty and is engaged in challenging his/hercriminal lifestyle, preparing to meet with themface-to-face if they so desire. The R&TJ process isexplained to them and they are invited toparticipate. The victim is then told that a CGC willnot proceed without them but that they can becomeinvolved at a level that is acceptable to them.

4. If the victim does not wish to participate theoffender is informed and only the transformativecomponent (MAP) or first circle of offender andsupport network takes place. A summary of theoffender’s MAP is then presented in court. Thisreport describes the underlying issues surroundingthe crime and provides a snapshot of the offender’slifestyle.

5. If the victim volunteers to participate fully in theprocess the second circle of victim plus supportiveothers takes place in a place that the victim feelscomfortable – usually their home. This second circleconsists of information about the process, answeringany concerns and preparation for a face-to-facemeeting at a CGC. Importantly, the victim can choosenot to participate further at any stage of theprocess.

6. The CGC or third circle consists of the victim andsupports and the offender and supports. This usuallytakes place at a time and place of the victimgroup’s choice. There are always two facilitatorspresent (preferably one male and one female). Theyexplain how the CGC will work and set the two groundrules. These are: 1. Each person must be allowed tospeak undisturbed; 2. Each person must speak thetruth. The facilitators’ duties are as follows: onefacilitates the process while the other closelymonitors proceedings and takes notes. The order ofspeaking is again the choice of the victim. Wheneveryone has spoken the two groups separate (eachwith a facilitator) to discuss what each groupthinks should occur. They then regroup and offertheir opinions regarding what should happen. A fullreport from the CGC is written up for the court.This report will ascertain whether or not the groupshave reached a mutually agreeable resolution. Boththe MAP report and the CGC report will be handed tothe magistrate or judge in court by one of thefacilitators immediately prior to sentencing.

The strength of the R&TJ model in transforming criminallifestyles lies in the way the authors dealt with

offenders. Because they refused to deal with offenders inisolation but always in the presence of family and/orclose friends, they were able to identify the underlyingissues that ultimately led to criminal behavior patterns.Offenders were, in the presence of those who knew thembest, unable to get away with lies and modifying events.This, in turn, served to identify underlying issues suchas drug and/or alcohol abuse; social isolation, povertyand homelessness; addictive gambling behaviors; pooranger management skills.

VICTIM PARTICIPATION

Restorative justice… seeks to restore the victim’ssecurity, self-respect, dignity and, mostimportantly, sense of control. And it seeks torestore responsibility to offenders for theiroffending and its consequences, to restore a senseof control to the to make amends for what they havedone and to restore a belief in them that theprocess and outcomes were fair and just (Morris,2002).

As previously mentioned, victims were at all times giventhe opportunity to participate in the process at a levelthey felt comfortable with. In this study more than 50per cent of victims requested that the team explain theR&TJ process and this group also offered information tothe researchers on how the crime had impacted on theirlives. Most of these victims also wanted to know aboutthe effect of the process upon the offenders and whetheror not the offenders were accepting responsibility andtaking positive steps towards law abiding lifestyles.

Throughout the study, the restorative justice teammet with the victims and their support networks (usuallyat the victims’ homes) on average twice prior to anycommunity group conference or sentencing of the offenderin court. Not all victims requested to meet theiroffenders face-to-face although the study had a fullvictim/offender participation rate of 34 per cent oftotal referrals.

It is important to note here that in the study thecrime known as ‘stealing as a clerk or servant’ featured

as a substantial percentage of magistrates’ referrals.Because of its level of seriousness on the scale ofstealing offences ‘stealing as a clerk or servant’ oftenattracted a custodial sentence for a first offence.Consequently, this led to a substantial number ofcommercial and corporate bodies to be involved asvictims. Several commercial victims became fully involvedin the process but most expressed an interest in theprocess and requested information but declined toparticipate further.

Findings from the 2002 study

During the two years that the pilot study took place inthe courts (6 months was taken up with project set up,finalizing data analysis and writing up final report) theauthors received 135 offender referrals. One hundred andeighteen offenders engaged to some degree in the process;98 completed the first circle (MAP) or transformativeprocess and 50 offenders completed community groupconference (CGC) with their victims or an approvedsurrogate victim. Significantly, 48 of the 50 CGCs resulted in mutuallyagreeable resolutions between victim and offender groups.

The gender breakdown of offender participants was asfollows: 44 women, 91 men. Forty-one of the femaleoffenders completed the first circle (MAP) and 20 ofthese also completed community group conferences. Of the91 male offender participants, 77 completed the firstcircle (MAP) and 30 of these also completed communitygroup conferences. Eighty-three of the 135 participantswere referred to the study by magistrates, 36 by dutylawyers, seven by the drug court, 6 by Aboriginal LegalServices and three self-referred. The CGCs were held inthe following locations: family home of the victim (insome cases also the offender’s home), one was held in thehome of one of the facilitators, church offices,community halls, business premises (of corporate andcommercial victims), parks, cafes. In addition, one CGCwas held in a juvenile detention center because thevictim was in custody. Another CGC was held in an adultcorrectional facility because the offender could not meetbail conditions.

Sixty-three of the 135 offenders referred to thestudy were repeat offenders. Around 40 per cent of thefirst time offenders were facing charges serious enoughto attract a custodial sentence. Because of economic andtime factors the authors were unable to monitor theprogress or otherwise of offender participants. Indeed,this was beyond the scope of the study – with hindsight,a major omission in terms of gauging recidivism rates forthis group. However, other studies demonstrate thatrestorative justice results in a reduction of offendingbehavior of around 7 per cent (Latimer, Dowden & Muise,2001), but more critically, if combined with effectivetherapeutic interventions, restorative justice has beenshown to have a combined 31 per cent reduction inoffending (Bonta, Jesseman, Rugge and Cormier, 2006).

Data from the study indicated that victims had agreatly increased satisfaction rate with the R&TJ processthan with the mainstream adversarial court process thatlargely ignored them. This was from a 15 per centsatisfaction rate with the control group of victims whosecases proceeded through the normal court system to analmost 90 per cent satisfaction rate with the victims whoparticipated fully in the R&TJ process (Beven et al,2005). Victims expressed satisfaction in being able totell the offender how their offending behavior hadimpacted on their lives and, importantly, they were ableto regain feelings of security and safety, often in theknowledge that the crime committed against them was mostoften opportunistic rather than targeted.

The findings of the study clearly demonstrated thatthe R&TJ model was particularly effective in reducingoffenders’ neutralization and increasing their levels ofresponsibility taking. Professor John Braithwaite(personal conversation with the researchers 2002), onexamining the study and its findings, said that the R&TJmodel was robust and indicated that the therapeutic ortransformative component (the MAP) gave the modelstrength in that it afforded ‘two bites of the re-integrative shaming cherry’ thus significantlydiminishing the likelihood of offenders being able toneutralize their criminal behavior and encouraging themto accept responsibility for their actions.

A bureaucratic non-response: the authors’ conclusions

By any measure, the R&TJ study produced sociallysignificant and positive results. Heightened victimsatisfaction rates, a 34 per cent victim participationrate, offenders addressing underlying issues that ledthem to criminal behaviors and lifestyles. Indeed, theChief Stipendiary Magistrate (2002) whose court oversaw85 per cent of the R&TJ cases, stated:

The restorative and transformative justice pilot hasprovided a rare opportunity to receive anindependent report of the interaction between thevictim, the offender and their families or friendsafter the offence. In that way it goes beyond thematters that might be contained in an outline of thefacts, a victim impact statement or a plea inmitigation. It provides the Court with valuableinformation, particularly in determining whetherthere are matters which will make a sentence otherthan one of imprisonment appropriate. It is avaluable tool in the context of therapeuticjurisprudence in forcing offenders to confrontproblems with their families and peers and has, onoccasion, uncovered issues not otherwise apparent tothose dealing with the offender.

In short, the R&TJ model worked. It worked in a way thatthe mainstream criminal justice system had continuallyfailed to do. The findings from the study indicatedclearly that the combination of restorative andtransformative processes provided victims with a voiceand offenders the opportunity to apologize and makereparation to victims and community. The process wascourt sanctioned and sentencing was carried out in thecourts. Why then, in 2012, ten years after these resultswere released is there no R&TJ process for either adultsor juveniles in any jurisdiction in Western Australia?

In explanation, and from the researchers point of view,it was felt that the R&TJ pilot study carried lessofficial regard than other court projects such as theDrug Court trial in Central Law Courts and the Family

Violence Court trial in a suburban court. Interestingly,the Drug Court and Family Violence Court trials wereofficially established and sanctioned by the relevantgovernment department (DOJ) and data was collected andanalyzed by departmental employees. In other words, thebureaucracy owned both projects, was publicly linked toboth studies and had a great degree of credibilityinvested in them. Conversely, the researchers in the R&TJpilot, who were both long time and very public critics ofthe criminal justice system in Western Australia, hadinitiated this study, developed the model, provided theservice and collected the data. Also, when Victim SupportServices failed to provide an adequate and timely liaisonbetween victims and the R&TJ team, the department was toall intents, precluded from influencing, or indeedclaiming, any part of the study.

Some time after the conclusion of the pilot study, DOJestablished a restorative justice service for adultoffenders in Central Law Courts. However, the researcherscontend that the model used could not be described aswholly restorative, nor was it transformative in nature.The underpinning ethos of restorative justice was dilutedalmost beyond recognition. The DOJ model was bureaucraticin nature, working only from Monday to Friday, whereoffenders were summoned to an office and seen inisolation without family and/or friends. In short, thetransformative component found to be so important in thecommunitarian model developed by the researchers, waslost completely. Victims were contacted by letter ratherthan personally as in the original study. Theparticipation rate diminished to around 5 per cent asopposed to the researchers’ 34 per cent victim uptake.There is no public record of how many face-to-faceconferences took place. And so, after a short lifespan,the restorative justice service provided by DOJdisappeared from the courts. All assistance offered bythe researchers at that time was ignored and/or declined.

Perhaps it could be argued that the R&TJ model was tooprogressive for the Western Australian bureaucraticsystem at that time. The researchers consistently argued

that the R&TJ model would be best run by non-governmentorganizations as a hybrid model in collaboration with themainstream court system, all sentencing being courtsanctioned. This model is readily adapted to diversecultural situations, cross cultural crime, first time andrepeat offenders, and both petty and serious crimes.Sadly, there is now no restorative justice service foradult offenders in the Perth metropolitan area. This lossimpacts negatively on victims, offenders, their familiesand community.

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