Seedat v S (731/2015) [2016] ZASCA 153

In the 2016 case of Seedat v S (731/2015) ZASCA 153 the appellant was convicted of sexual assault. The Supreme Court of Appeal of South Africa found that it was not appropriate for the appellant to pay monetary compensation, despite that being the wishes of the victim. The court is under a duty to not only satisfy public opinion, but serve public interest (para. 39). Monetary compensation was not appropriate in a case involving rape, which is considered one of the most serious offences (para. 40).  

S v Tabethe [2009] ZAGPHC 23

In the 2009 case of S v Tabethe ZAGPHC 23 the High Court of South Africa determined that although the offence was of a serious nature, sexual assault, restorative justice was an appropriate sentence that would punish the accused, restore the victim, help heal the damage done and benefit society (para. 40).

The court stressed at (para. 39)

R v R.L.W., 2013 BCCA 50

In the 2013 case of R v RLW BCCA 50 the Court of Appeal for British Columbia dismissed an application to appeal a sentence following a conviction for sexual assault, threats and possession of child pornography. The court found that although the sentence was similar to a sentence that would have been imposed on a non-Aboriginal offender, that did not mean that restorative justice had not been appropriately considered (para. 40).

R v Pouce Coupe, 2014 BCCA 255

In the 2014 case of R v Pouce Coupe BCCA 255 the Court of Appeal for British Columbia found that the sentencing judge was correct in concluding that the sentence should not include the proposed restorative justice plan (para. 27). The appellant’s family and community continued to believe that he was innocent, despite the conviction for sexual assault, therefore ‘the restorative justice plan would have had minimal rehabilitative effect’ (para. 28).

R v Chanalquay, 2015 SKCA 141

In the 2015 case of R v Chanalquay SKCA 141 the Saskatchewan Court of Appeal concluded that the sentencing judge misapplied the concepts in Gladue and Ipeelee. The offender was convicted of sexual assault. The Court concluded that although sexual assault is a serious crime, ‘the sentencing judge should have asked himself how a restorative justice approach might have allowed him to reduce or limit the term of imprisonment…while still meeting the sentencing objectives of the case before him’ (para. 54).

Director of Public Prosecutions v Thabethe (619/10) [2011] ZASCA 186

The apellant pleaded guilty to unlawful sexual intercourse with a girl under the age of 16 years.

This 2011 South African Supreme Court of Appeal case recognises that if restorative justice is not appropriately balanced by other considerations it may lose its credibility as a sentencing option. The Supreme Court of Appeal held that, while restorative justice is a ‘viable sentencing option’, on these facts restorative justice was inappropriate. 

Bosielo JA said in Thabethe (para. 20)

R v Mahia [2014] NZHC 1396 (19 June 2014)

In the 2014 case of R v Mahia NZHC 1396 the defendant was sentenced to life imprisonment for the murder and sexual violation of the victim with whom he had been in a volatile intermittent relationship. The defendant indicated a willingness to participate in a restorative justice process. The judge considered this ‘unrealistic’ as a result of the attitude displayed by the defendant when ‘challenged by others’ and ‘in the context of the subject’ of the victim’s death (para. 28).

M, L v Police [2015] SASCFC 126

In the 2015 case of M, L v Police SASCFC 126 the Supreme Court of South Australia discussed a situation where restorative justice was considered the ‘most appropriate sentencing option’. The appellant was charged with ten counts of sexual offending, with each count involving the complainant, a younger female cousin of the appellant. The ten counts related to seven separate alleged incidents occurring between 2000 and 2004. At the time, the appellant was aged between 11 and 15 years, and the complainant was aged between 7 and 11 years.

Johnson v R [2016] NZCA 144 (20 April 2016)

The 2016 case of Johnson v R NZCA 144 involved a Crown appeal against a sentence of two years and five months’ imprisonment for indecent assault. The Court of Appeal held that the sentencing judge’s decision to give no discount for the appellant’s willingness to attend restorative justice was not in error. The sentencing judge found that the appellant ‘was not truly remorseful for his offending and had not accepted his guilt’ (para. 27). These circumstances were considered satisfactory support of the sentencing judge’s decision.

The Queen v Andrew James Castles [2002] NZCA 109 (23 May 2002)

The 2002 case of R v Castles NZCA 109 involved a Crown appeal against a sentence of two and a half years’ imprisonment for a serious sexual assault by a group of men on a fellow male, which was part of a pattern of bullying. The Court of Appeal accepted the sentencing judge’s decision that the need for retribution had in part been met by one offender’s attendance at a conference with the victim’s parents, where the offender apologized to the victim and his family (para. 19).