196. At a public meeting called to discuss issues raised in the reference, the question of victim-offender reconciliation was raised by a member of the audience. It then seemed appropriate to call a special meeting to give consideration to the subject. The meeting was well attended. At least a majority of those who attended that meeting were in favour of victim-offender reconciliation in respect of first offences.
[A] process whereby offenders and victims are brought together by a trained (often volunteer) mediator to achieve a resolution to the criminal event which is satisfactory to both parties. Victim-offender reconciliation seeks to:
. effect reconciliation and understanding between victims and offenders;
. facilitate the reaching of agreements between victims and offenders regarding restitution;
. assist offenders in directing payment of their 'debt to society' to their victims;
. involve community people in work with problems that normally lead into the criminal justice process; and
. identify crime that can be successfully dealt with in the community.[1]
The Report also said:
Reconciliation helps break down the stereotyped images victims and offenders have of one another by bringing them together. When they meet face-to-face, there can be a mutual understanding and agreement as to what can be done about the offence. The assistance of an objective third party is useful in facilitating interaction at such meetings. These mediators do not impose settlements, but rather assist the victim and offender in arriving at their own settlement - a settlement which is agreeable to both.[2]
A description of the aims and history of the Victim-Offender Reconciliation Program (usually abbreviated to the acronym VORP) is to be found in the report 'Taking Responsibility'. A copy of that description is attached as Appendix 'D'.
198. The Committee has some doubt as to whether that title might not be to some degree self-defeating as its use could be seen as necessarily involving a reconciliation between victim and offender when it is more likely that some less reciprocal accommodation would be reached through a process akin to that of mediation. The Committee therefore prefers the wider title - and concept of - 'Process of Attempted Reconciliation using techniques available, including mediation' (or PAR). The Committee uses this term, rather than an established term like 'mediation', 'reconciliation' or 'conciliation' because of concern within it that these terms could be misconstrued in the context. It acknowledges that the phrase is not as mellifluous as it might be. By good fortune, however, its acronym, PAR, carries with it the connotation of restoration to the status quo. It is discussed in more detail later.[3]
200. This alienation from the system can be detrimental not only to the victim, but also to the offender and to the community. The distance between the crime and the eventual penalty, both in time and relevance, can result in an offender losing sight of the crime. Many offenders regard the criminal justice system as victimising them, rather than as punishing them for a crime committed. Jenny David has noted that:
Punishment breeds resentment more often than learning and change. Punishment so often leaves the offender free to resent the system that imposed the punishment rather than encouraging the offender to look at what he or she actually did and its effect on the victim.[4]
201. Many offenders have experiences within the criminal justice system that, rather than encouraging them not to reoffend, in fact encourage bitterness and resentment. The victim, the person most affected by the crime, is not obviously present and the system itself has become something to beat.
202. Further, there is evidence that offenders, in common with victims, feel ignored by the criminal justice system. Many have the impression that they are given too little information about, and guidance through, the criminal justice process.[5] The Committee was told that the speed with which criminal cases are processed in some courts allows offenders little or no opportunity to explain to the court their particular circumstances. There is no time to gain an understanding about the effects of the crime on others, and no time to assess what is happening to them.
203. Victim impact statements are for the benefit of the victim and the criminal justice system. Making the effects of the crime known to the court improves the ability of the system to deal with them. It does not mean that the offender will gain an appreciation of the hurt he or she has caused a person.
204. A process of discussion and negotiation between victim and offender can personalise the criminal justice process for both parties. It allows the victim and offender to discuss the crime (and any other problems) directly without the interference of lawyers, police, the courts and corrective services, but may, if the Family Group Conference Model is eventually used, involve contributions from the families of each. It allows the victim to tell the offender about the effects of the crime on him or her as a person and to gain an understanding of why the crime occurred. It requires the offender to realise that a person suffered because of the crime, and allows the offender to apologise to that person and perhaps to make amends for the crime.
205. Further, unlike the adjudication process including the tender of a victim impact statement, a process of discussion and negotiation allows the parties to deal with any underlying causes of the criminal act. Often, particularly in the case of a crime that occurs between people who know each other, a criminal act occurs, not in isolation, but within the framework of a continuing dispute. The adjudication system is able to focus only on the particular criminal act, without gaining the adequate understanding of, or insight into, the underlying causes of the dispute that are necessary for its successful resolution. Indeed, the criminal justice process may exacerbate the ongoing dispute by labelling one person as being 'wrong' and the other, therefore, as being 'right', when the truth may well be somewhere between those extremes.[6]
206. Another important theme of this Report is the importance of assisting healing for the victim. There is evidence that an attempt at reconciliation with the offender can bring great healing to the victim, whether or not reconciliation - as that term is understood - is brought about. The controlled discussion about the effects of the crime on the person who is most affected by it can apparently bring great relief to the victim.
208. The Committee envisages PAR as a non-authoritarian process which uses a neutral third party - a facilitator - to encourage the parties to find their own solution to the dispute. The facilitator encourages both sides to take responsibility (not, be it emphasized, the victim to take any responsibility for the offence) for their dispute and its solution.[7]
209. The role of the facilitator is to ensure a fair hearing for each party, adequate discussion of all relevant issues, exploration of possible solutions and to enable parties to adhere to any agreement reached.[8]
210. Although mediation (and therefore PAR, using mediation-like techniques) can result in an agreement, reconciliation, reparation, etc, those ends are not its raison d'etre. Mediation, in its pure form, focuses on the facilitated discussion, not on any outcome that may or may not be reached by the parties. However, as is discussed below, the process of discussion which forms the basis of mediation, and which would form the core of PAR, is versatile enough to enable its use for differing causes. Its outcome may vary according to the cause or causes it is being used to advance.
212. Some commentators see this trend as evidence of a change in the nature of our criminal justice system from either a 'retributive' system to a 'restorative' system, or from a 'treatment' model to a 'justice' model. Both the retributive system and the treatment model focus on the offender and ignore the victim. The core element of the retributive system of justice is the imposition of a punishment by the state on the offender to deter or prevent future crime. The victim has no place within the system.[9] The treatment model sees every offender as a person who needs some treatment because he or she is suffering from some illness or aberration.[10] The victim, again, has no role in such a system.
213. The restorative and justice models, on the other hand, see the victim as able to play an important role in the criminal justice process. Within a restorative system, a crime is a violation of one person by another and reconciliation between the parties is a priority. It is important that offenders have the opportunity to repair the damage done.[11] The basis of the justice model is the view that people who breach commonly agreed laws should receive some form of punishment and be given the opportunity to make amends. The victims' rights and needs are as important as those of the offender and the community.[12]
214. An influential paper by N. Christie, published in 1977, proposed that conflicts be treated as property.[13] Taking disputes out of the hands of those directly involved (as presently happens) not only denies them the right to manage their own disputes, but also precludes the development of more constructive and imaginative responses to those disputes.[14] In other words, the state should be in the background, ready to give help and propose solutions as need be, but generally the parties should settle their own disputes.
215. A recently developed paradigm of juvenile justice is Braithwaite's theory of reintegrative shaming.[15] Braithwaite argues that the criminal justice system enables an offender to erect shields between himself or herself and the shame of the wrongdoing. An important factor in the erecting of such shield is the absence of the victim from the criminal justice system. It is argued that the absence of the victim removes an important reminder for the offender of the connection between the crime and the eventual outcome of the criminal justice system. It has been noted that, when faced with the impersonal, formalised anger of officialdom, the offender tends to forget the victim of the crime and to recast himself or herself as a victim of the system.[16]
216. A more effective criminal justice system would be one which requires the offender to acknowledge the shame and take steps to put an end to it. The acknowledgment by the offender of the harm caused by the offence and attempts to heal the harm done, are the mechanisms by which the offender can put an end to his or her shame and be reconciled to society.[17]
218. There are a number of identifiable benefits which a victim may expect to gain from participation in the victim-offender discussion process. Some of the main potential benefits are:
- Finding out more about the offender and why the offence occurred;
- The ability to express his or her anger to the person responsible;
- Where there is a continuing relationship with the offender, the chance to work towards a resolution of an underlying relationship problem or to sort out other repercussions of the crime;
- The receipt of an apology and possibly some further act of reparation;
- Showing the offender, in the most direct way possible, the effects of crime on its victims, thereby possibly influencing the offender's future behaviour and reducing the risk of the victimisation of others; and
- Being involved in the aftermath of his or her own crime.
219. Studies have shown that many victims have obtaining reparation as their primary motive for beginning a discussion or negotiation process. However, after participating, victims regard reparation as being less important than the process of negotiation and discussion. They think it more important to be able to receive answers from the offender and to assist in the rehabilitation of the offender by revealing the human face of the crime.[18]
220. The offender can also derive important benefits from the process of victim-offender discussion and negotiation. It may enable him or her:
- to see the victim as a real person;
- to explain what brought him or her to commit the crime and apologise for it;
- to make up for what has been done in a direct and personal way;
- to have an immediate role in the decisions about the consequences of the criminal action and thus to ensure part ownership of those decisions; and
- perhaps to be diverted from the court system or achieve an alleviation of sentence (depending on the nature and objectives of the scheme).
221. Both victim and offender may gain a sense of achievement and increased confidence in their ability to manage their own lives by negotiating their own settlement.[19] The judicial system, by removing the resolution of the dispute from the control of the parties, does not provide the parties with this experience and confidence.
222. The community from which the victim and offender come can also benefit from the use of a victim-offender discussion or negotiation process. This type of process can assist the effective reintegration of both victim and offender into mainstream society. Being a victim or an offender is very isolating. A victim mentality - the fear of being re-victimised, questioning what the victim did to cause the victimisation - often induces a victim to withdraw from relationships and cease activities that he or she believes include a risk of re-victimisation. The over-concentration of the criminal justice system on control and punishment often leaves offenders feeling hostile toward the society that sanctioned his or her 'victimisation' by that system.[20] The process of discussion and negotiation may serve to empower both victim and offender giving both the means of reconnecting with their community. Studies have shown that victims are less fearful of re-victimisation after mediation/ reconciliation. The offender is able to atone personally for the crime in a socially recognised way without necessarily being punished in one or more of the usual ways.
223. The community also benefits from the lower recidivism rate that a process of victim-offender discussion and negotiation apparently produces. This lower recidivism rate is most apparent in the case of mediation or reconciliation schemes involving juvenile offenders, but Marshall noted that, in the case of one scheme he studied involving adult offenders with substantial criminal records, it was becoming apparent that the recidivism rate for offenders who had taken part in the scheme was between 10% and 20% lower than for those who had not.
224. There is an indirect benefit to the community when victims and offenders, who have taken part in formalised discussion and negotiation programs, begin to see that the system has handled their case appropriately and fairly. Umbreit and Coates found that 83% of victims who had taken part in a negotiation with their offenders felt that the processing of their case was fair, as compared to 62% of those not offered mediation. In the same study, 88% of juvenile offenders who had negotiated with their victims felt that the processing of their case had been fair, as opposed to 75% of those not referred to mediation.[21] A higher perception of fairness by victims might result in those victims, their families and acquaintances, being willing to approach the criminal justice system should they be victimised again.
225. Financial and social benefits are derived from the diversion of offenders from the lengthy and costly criminal justice system, and perhaps from institutions.
In some schemes in the US and UK there can be confusion or loss of direction arising from conflicting or ill defined goals. For example, if reconciliation is a major concern of those running a scheme the process assumes primacy over any product in terms of an agreement. If rehabilitation of the offender is the basic concern the scheme may concentrate on his characteristics and needs rather than those of the victim. ... Similarly, diversion from court may be pursued to the detriment of other goals. Programs often have more than one aim, but they need to be carefully specified if the program is not to drift.[22]
227. Gwynn Davis was particularly critical of British mediation schemes located within probation services. Those services, he maintained, were 'hamstrung' by their attempt to pursue reparation and mitigation or diversion. He attributes this alteration in emphasis to a desire on the part of probation officers and sentencers to find additional options which would permit them to 'mitigate the destructive effects of a retributive system'.[23] The desire to achieve mitigation and diversion while still paying lip service to reparation has resulted in the failure of some schemes to achieve either properly. Those engaged in these schemes tended to experience difficulties in getting referrals, particularly from police who felt that they should protect the victims' interests. Victims felt pressured into helping the persons offending against them and the offenders apparently felt pressured into reaching an agreement (which was supposed to be voluntary) while leaving their victims in doubt about the sincerity of any offer or offers.
228. The focus of this report is the improvement of the position of victims of crime. Therefore, the primary role of PAR, as envisaged by the Committee, will not be the mitigation of sentence or diversion of offenders from the criminal justice system. The victim cannot merely be put at the service of the offender in this way. This is not to deny that many victims genuinely wish to help to rehabilitate the offender for his or her own sake, or to prevent somebody else being victimised. However, the interests of the victim should not be prejudiced simply to assist the offender.
230. Ms Ann-Margaret O'Donnell, the co-ordinator of the mediation program in Beenleigh, Queensland, emphasised that notifying victims early in the process that mediation is possible and providing advice on the benefits are important. She has found that victims who are informed of mediation only at the time of the referral by the court, when sentencing is close, feel that they are being pressured into participating in a scheme for the benefit of the offender. Understandably, they are less likely to be willing to participate in the program.
231. In the past, victim-offender discussion/reconciliation schemes were established by corrections agencies with the obvious intention of improving the position of the offender (that is, to reduce the sentence handed down or divert the case from the criminal justice system altogether). Although many victims do get satisfaction from assisting in offender reforming[24], it ought to be made clear to them from the beginning of the criminal justice process that PAR has 'something' in it for them and that the system is genuinely concerned that they should benefit from that 'something'.
232. It may be that the benefits that PAR can offer both parties should be emphasised by having the referral come from a non-aligned third party. Some of the most successful schemes are those in which magistrates are responsible for referrals of offenders to attempted reconciliation. But the decision to prosecute is not that of the court but of the Director of Public Prosecutions, the court's role being to exercise its power of mitigation in sentencing or, perhaps, if it takes a different view about reference from that of the DPP, to order referral contrary to the DPP's submission.
234. Gwenn Murray, the author of the discussion paper that laid the groundwork for the Beenleigh victim-offender pilot project, expressed particular concern about the prospect of offenders using mediation as a 'soft option', to avoid appearing before court or to alleviate the coming sentence. These offenders, she maintained, should be excluded from the mediation program, because they may not invest the required goodwill into the program.[28]
235. Ms Murray's conclusions do not match those of the Committee on this issue. Ann-Margaret O'Donnell and the mediators consulted by the Committee believe that, even if the original motivation of the offender to approach the program was a perception that it was a soft option, the process of discussion and negotiation is so emotionally powerful as to be able to overcome any lack of goodwill in the offender.
236. In any event, negotiation with the victim can be far more difficult for the offender than a brief appearance in court. Court requires little personal involvement or personal assumption of one's own responsibility for the causing of harm. Appearing before an apparently remote Judge or Magistrate is far easier than meeting the person hurt by one's actions and then apologising for those actions.
238. A case that came to the notice of the Committee involved the very successful process of negotiation and attempted reconciliation between an incest victim and her father. The negotiation had taken place after her father's conviction and imprisonment and was as a result of her initiative. She wished to put the whole deeply traumatic affair behind her and to get on with the business of living. She chose what was clearly a difficult path but it led to reconciliation and healing.[31] It seems therefore important that the victim-offender PAR be available to all victims and offenders who may benefit from it, so as not to exclude, by the arbitrary application of pre-set criteria, those who may gain great help and healing.
239. On the other hand, Davis did note that some British schemes purposely excluded first-time minor offenders from mediation or reconciliation programs to prevent those offenders moving more rapidly up the tariff scale than they would otherwise have done. The organisers of these schemes argued that a warning was often sufficient to prevent first-time offenders from re-offending and allowed the authorities to keep the negotiation process 'up the sleeve' of the justice system for those who did re-offend but for whom diversion remained suitable.
240. Many schemes specifically limit alternative dispute resolution programs to cases involving juvenile offenders. Davis notes that this is probably because the concern of most of the schemes has been with offenders rather than with victims. There is a perception that the process of discussion and negotiation with the victim is more likely to motivate juveniles than adults not to re-offend. However, he also points out that it may be in victims' interests to negotiate with adults rather than with juveniles, as victims are more likely to obtain reparation from adults.[32] This point is particularly important in regard to victim participation - it is important that victims feel that their needs are, at least, of equal concern in the scheme as those of the offender.
241. However, it is arguable that PAR would be most successful if it is used in a flexible manner. Trials have shown that processes of attempted reconciliation can work effectively at different stages of the criminal justice system. The most appropriate point for the use of PAR will depend on the nature of the case and the parties. Similarly, PAR should not be permanently limited to any particular range of offences. All offences might be suitable so long as there is an identifiable victim. Maximum flexibility allows all those parties who might benefit from the process to take it up.
243. Suitable cases should be referred for PAR once an offender has indicated to the court that he or she intends to plead guilty. Most schemes do require there to be an admission or acceptance of a finding of guilt by the offender before a process of mediation or reconciliation becomes an option. This, presumably, is done on the basis that an offender will not have the proper attitude for a successful PAR if he or she has refused to acknowledge guilt. The Committee believes that acknowledgment of guilt is essential to the success of the process.
244. The Committee recommends that the suitability of a case for PAR be decided by the court after receipt of information from the prosecuting and defending lawyers.
245. The Committee has adopted this approach for trial because a scheme in which intervention for the purposes of PAR occurs at an advanced stage of the criminal justice process (for example as a sentencing option) could mean intervention occurs so long after the crime that victims are no longer interested in following it up. Late intervention could also mean that the offender has ceased to focus on the crime and its effect, and instead is concentrating on defeating the criminal justice system. It must not be forgotten that late intervention has proved successful overseas and that a great number of interviews may be required to bring about the best possible result. So, too, it must not be forgotten that pressure for a speedy conclusion of PAR may result in its miscarrying, with both victim and offender dissatisfied and being denied its benefits. Therefore, the Committee believes that PAR should be considered for use at a later stage in the criminal justice process only if it proves successful during the time of trial recommended in this report.
247. On the other hand, an established service might bring to PAR pre-conceptions developed through other conflict resolution work, particularly its ideas regarding the power balance between the parties and the desirable end products of the formal discussion process. Those services might also be wedded to a particular model of the dispute resolution process which is not suited to the distinct aspects of the victim-offender relationship as opposed to, for example, the relationship between neighbours.
248. The Committee considers that, at least for the pilot PAR project discussed below, best use would be made of available resources by making use of an existing alternative dispute resolution service. Continued use of that service should be carefully evaluated at the end of the trial.
250. There are persuasive arguments for and against making agreements arrived at during PAR legally enforceable. Central to agreements must be the investigation and verification, by the mediator, of the offenders' capacity to perform what he or she is prepared to promise. This verified capacity is necessary so that:
- the agreement can be monitored and enforced in the same manner as any other court order;
and because:
- the failure of the offender to fulfil an agreement made during PAR combined with an inability to compel fulfilment can add to the stress already suffered by the victim;
- the legal status of the agreement could prevent the 'double punishment' of offenders who abided by agreements which had been accepted by the court as sufficiently meeting the aims of sentencing in the particular case;[33] and
- the authority of the court who referred the offender to PAR may be seen as being flouted if the offender refuses to abide by an agreement reached.
251. Reasons advanced against enforcing agreements reached during PAR include:
- legal enforceability would place too great an emphasis on the ends to be achieved by PAR rather than on the process of discussion;
- the intervention of the authorities to enforce an agreement removes the element of voluntariness which is essential to proper negotiation and discussion: the essence of PAR as envisaged by the Committee is the voluntary nature of participation and all decisions;
- the promised enforceability of any agreements might create an expectation that those agreements will be reached, meaning that offenders who do not reach agreement could then be penalised for not doing so;
- the irreversible altering of rights and interests of the parties in the perhaps heated atmosphere of the discussion and negotiation might be unfair to one or both parties (although a cooling off period between the PAR session and the agreement's becoming legally binding should ensure that parties genuinely wish to stand behind the agreement); and
- the more legalistic the end result of PAR, the more legalistic must be the process of reaching that end - legalism and formality may stifle PAR, as it has arguably stifled arbitration.
252. The reasons against enforcing agreements do not seem convincing. An offender engaged in PAR is to be entirely free to make up his or her mind as to what he or she can do in reparation. The facilitator must be required to verify capacity. If, then, the offender makes a sensible offer within capacity why should he or she not be legally bound to perform the promise made? The offender is then in no different situation than a party in a civil suit who, after 'without prejudice' negotiation, reaches a binding agreement which a court will enforce. Therefore, the Committee recommends that an agreement reached after PAR, which has been tested by the facilitator, should have the status of a bond entered into as a result of a sentence imposed by a court. However, the Committee recommends that there should be a 'cooling-off' period between the making of an agreement and that agreement becoming legally enforceable. This would enable both offender and victim to consult with legal advisers and other people affected, and ensure that they are not bound by something promised in the 'heat of the moment' to be regretted later. Two weeks should be enough.
253. The Committee believes that, in any event, there should be a degree of flexibility which might lead, in appropriate circumstances, to the waiver of the offender's obligation under the agreement.
- statements made and evidence given during mediation are not to be admissible in court without all participants' permission;
- participation in mediation is to be entirely voluntary;
- the privilege with respect to defamation that applies during court hearings also applies to mediation sessions;
- parties are protected from all court proceedings arising out of the mediation;
- mediators are protected from any liability so long as they act in good faith; and
- a member of the police force or other officer or person is not liable to be proceeded against for failing to arrest or charge or offer evidence against a person if he or she reasonably referred a dispute to mediation.
255. The Victorian Evidence Act 1958 (Divisions 7 and 8) provides a lower level of protection to Dispute Settlement Centres in that State. It provides that:
- mediation sessions will be subject to a requirement of confidentiality;
- evidence of anything said or of any admission or agreement made at, or of any document prepared for the purpose of, a mediation session is not admissible in court, except with the consent of all persons present at the conference; and
- anything done in good faith for the purpose of a mediation session by a mediator or anyone working for a mediation agency does not subject the person to any liability or action.
256. These significant protections are invaluable for the participants of victim-offender mediation/reconciliation sessions who wish to pursue a full and frank discussion of the important issues without fear of later disclosure or court cases. The benefits of assured confidentiality were spelt out in a Discussion Paper prepared for the New South Wales Law Reform Commission:
Where a mediation is voluntary, a mediator's promise of confidentiality encourages its use. It reassures disputants of the neutrality of the mediator, and fosters an atmosphere of trust in which all parties are willing to fully explore issues openly and honestly so that the potential for agreement is maximised. It is argued that the disputants' choice of a private forum should be respected. The integrity of the private process of mediation should be recognised by conferring on it a privilege which separates it and protects it from public adjudication. [36]
257. The Committee is of the opinion that the wider protection offered by the New South Wales Community Justice Centres Act would be preferable, given the position of victim-offender PAR within the criminal justice system.
258. The Committee understands that statutory protection of participants in all types of mediation is being examined by the ACT Attorney-General's Department and that a proposal is to be put to government before the end of 1993. The Committee considers that statutory protection for the participants in PAR could be incorporated in that broader based proposal.
260. It has been shown that the victim's awareness that mediation/ reconciliation may be an option long before he or she is approached by the mediation organisation is an important condition precedent to successful victim-offender mediation/ reconciliation. Therefore, the victim of an offence against property, or common assault, or an assault occasioning actual bodily harm, should be informed of the possibility that PAR may be used and of the details of the PAR process.
261. PAR should become a diversionary option open to the court once a young person has been charged and, after the receipt of appropriate legal advice, has admitted guilt to that charge. It could be suggested as an option by the prosecuting Counsel, defence Counsel or the court itself. It is probable that many of the cases for which PAR is suitable would fall within the Voluntary Agreement to Attend Court (VATAC) scheme in the Magistrates Court and so would be scheduled for a court hearing within a short time after the commission of the crime.[37]
262. If the court considers that the matter is suitable for PAR and the young person agrees with the court's suggestion that he or she attend PAR, the hearing should be adjourned by the court and the matter referred to the facilitating service. A worker at the facilitating service should ensure that the young person willing to participate in PAR, is made aware of his or her rights and other available options and seems capable of carrying out any agreement that he or she might reasonably be expected to reach. If the young person ceases to be willing to participate in PAR, the matter would return to the court for action as if PAR had not been an option.
263. The worker at the facilitating service should then contact the victim to suggest PAR. If the victim is not willing to mediate, the matter will return to the court.
264. After the victim is contacted, there should be a 'cooling-off' period of 30 days to ensure that both the victim and the young person are willing to continue with PAR. If either of the parties decide not to continue the PAR, the matter should return to the police.
265. After 30 days (or sooner if the victim and young person so desire), the PAR would occur under this system. Any agreement would be verified by the facilitator to ensure that both parties are willing and able to perform the elements of the agreement. If no agreement is reached through PAR, the matter would return to court for a resumption of the hearing.
266. On the completion of PAR, the mediators would write a report to the court, outlining whether or not the PAR was successful and the details of the agreement, if any. The agreement would then be formalised and, after a 'cooling-off' period of two weeks, lodged with the court, where it would have the status of a condition imposed as part of its sentence. If the court is satisfied that the agreement befits the crime, the matter would continue to be adjourned pending fulfilment of the agreement. Subject to a satisfactory fulfilment of the agreement, the court would order a full discharge of the matter. If the offender fails to fulfil the agreement, the matter should return to court where it can be dealt with as such a bond if the victim so wishes. If the victim does not so wish, the court can discharge or vary the agreement under s. 556D of the Crimes Act.
267. If the agreement is not fulfilled because of a refusal by the victim, the matter would return to the court, where the willingness of the offender to participate in PAR and his or her intention to fulfil any agreement should be taken into account by the court in its further consideration of the matter.
268. Referrals to PAR should be monitored by an independent official or agency. Suitable officials might be the Community Advocate and the Victims of Crime Coordinator. The reason for such monitoring would be to determine if inappropriate patterns of referrals emerge (ie that cases that were eligible for referral to PAR are routinely not being referred or that cases where PAR was less likely to be successful are routinely referred) and report on the existence of those patterns to appropriate senior officers of the Magistrates Court for examination and suitable action. Such patterns would, of course, also eventually be reported to the agency responsible for evaluating the pilot project.
269. Such a trial PAR program should not, initially, have a legislative framework. Its use for a period of 12 months could determine what changes might be necessary to improve its efficacy and impact. A survey of participants could be done immediately before and after the PAR, and again at the end of the 12 month period. Comparisons could be made with those who did not participate in the PAR program. Once a trial of the process has been successful at this stage of the criminal justice system, the Committee recommends that it should gradually become available to all victims and offenders who would benefit from it, no matter where a case is within the criminal justice system or how serious a crime is involved.
270. Apart from the requirement of any funding of the facilitating service, the implementation of PAR might have some impact on those agencies which have been established to provide support to victims and young people. PAR might result in such services having to 'resource' (that is, provide support and information as to rights and other options) the parties to a victim-offender PAR. The Committee recommends that the Juvenile Justice Consultative Group (which consists of representatives of a number of these agencies, both governmental and community-based) monitor the impact of the implementation of victim-offender PAR on these groups and report to the evaluating body at the end of the trial period.
271. The trial should be accompanied by a process of community education as to the benefits of PAR in general, and of PAR on a wider basis than is proposed for trial in particular. The Committee also recommends that an educational video of the process be prepared. A video of the process of a victim-offender reconciliation program was prepared some years ago in British Columbia. It was illuminating and a copy is being sought. It would need to be adapted to Australian technical requirements.
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