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Cultural background report process underutilised

03 August 2018 - By Tracey Cormack

Section 27 of the Sentencing Act 2002 allows an offender to request the court to hear a person on personal, family, whānau, community and cultural background of the offender. This provision has been underutilised, despite the Sentencing Act being in force for over 15 years. A report under this section may be oral, or a more detailed, formal written report.

Why use a section 27 report?

Māori are over-represented in the prison population. According to the Department of Corrections, in September 2017, Māori made up 50.5% of New Zealand’s prison population, but comprised just 14.9% percent of the New Zealand population. Where offenders (almost always Māori, but not restricted to any culture) are facing charges, or the court is deciding between various sentencing options – for example a custodial or non-custodial sentence – the court may order a cultural report to provide background and context for the defendant’s offending.

Application confusion

While they appear to have been underutilised, there is also some confusion about the application of the reports.

In R v Mason [2012] NZHC 1361 the defendant applied to be dealt with in accordance with tikanga Māori. Justice Heath ruled against this application. He said that it was unlikely that a criminal trial process could accommodate tikanga Māori, but sentencing would be more amenable to the use of customary processes. He qualified this for cases of serious offending and also commented that a focus on rehabilitation could potentially conflict with community interests.

In sentencing, R v Mason [2012] NZHC 1849, Justice Heath was presented with a cultural report. When discussing the report he recognised that sentencing can reflect cultural background. He noted, however (at [40]), that “...there are problems in taking the tikanga approach too far” and while “… such matters are relevant to the sentencing process … they cannot drive it.”

Looking at other jurisdictions, Canada also has a problem where indigenous people are over-represented in the prison population. The Canadian Criminal Code has been interpreted to address this problem.

Subsection 718.2(e) of the Criminal Code provides for restraint in the use of imprisonment for indigenous offenders and has facilitated the use of conditional sentencing, often involving restorative justice principles:

“718.2 A court that imposes a sentence shall also take into consideration the following principles:

….

(e) all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

Canadian courts have decided in cases such as R v Glaude [1999] 1 SCR 688 that when sentencing an indigenous offender, judges should consider all available sentences other than prison time that are reasonable, and pay attention to the life circumstances of the indigenous offenders.

Recent New Zealand decision

In a recent decision in Timaru, R v Alexander [2018] NZHC 1584, Justice Nicholas Davidson was grateful to have access to a ‘cultural’ report prepared for the court pursuant to s 27. Davidson J found the report “very enlightening and helpful”, and also noted that a s 27 report is seldom obtained. He noted that this case was the first time he had come across one in over three years and that many judges had never come across it.

How does a report fit in?

There is some debate about whether the report is intended to count to discount a sentence, or otherwise to offer more understanding of the offender and their cultural background. If it is the latter, the report offers an explanation or an understanding for the offending and then might suggest ways towards rehabilitation. In the Alexander case the offender had been placed in Child, Youth and Family (now Oranga Tamariki) care at 18 months of age. His caregivers had no knowledge of the offender’s whanau, whakapapa or culture. He was therefore without a cultural grounding point.

Justice Davidson said he took this from the report:

“Facilitating an offender’s knowledge of and connection with pro social Māori identity can be a powerful motivation for change, and a sense of direction, importance, belonging and worth.” [75]

The process

The judge may order a report. An adjournment may be ordered under s 26 to provide time for these and other relevant reports. In addition, a lawyer or the defendant may order a report. As mentioned previously the report may be an oral statement made in court on behalf of or by the defendant.

The court-ordered reports are funded by the Ministry of Justice.

A specialist report writer will write up a report. Shelley Turner, who is based in north Waikato, has established a business, Specialist Reports Ltd, and focuses her work on s 27 reports.

Ms Turner says her objective is “working together for better sentencing outcomes”. She prepares a narrative from the offender, detailing their personal, family, whanau, community and cultural background. When appropriate she will cross-reference their narrative with their family members.

She uses several tools to help prepare her reports, including templates for the defendant’s whakapapa, timeline and Mauri Ora assessment – all of which help determine goals and aspirations for the offender going forward.

Sentencing remarks from a report she recently provided described her report as “fantastic” and the presiding judge made frequent reference to various aspects of the report. The Crown Prosecutor in that same hearing described the report as “a good and useful report”. Ms Turner has no doubt her report contributed to the positive outcome for the offender, whose sentence indication was 30 months’ imprisonment and who received a sentence of six months’ home detention.

Lack of knowledge

Christchurch lawyer Jamie-Lee Tuuta works out of the Christchurch Community Law Centre and wrote the report for the Alexander case. She says there is a lack of knowledge regarding the use of these reports in Christchurch, but is optimistic that there is plenty of opportunity for change, especially in the current political environment.

In preparing the report, Ms Tuuta interviewed the offender in prison over several hours. She wrote a detailed report and linked the information provided to each part of s 27 of the Act. She took an oral history from the offender, but in this instance did not speak to his family as he was essentially disconnected from his family.

Ms Tuuta reported that Mr Alexander had been with a Pākehā family his whole life, he did not know his grandparents and while he knows he is Māori, he does not know what that means. In other cases she said she would interview family members.

Jamie-Lee Tuuta thinks there is room for deeper research, particularly in relation to cases with similar circumstances to the Alexander case (where the defendant has been in care from the age of 18 months).

“Almost all (93%) of the children referred for a youth justice FGC in the period examined had previously been the subject of a report of concern to Oranga Tamariki about their care and protection. The proportion has been trending upwards. In 2016/17, it was 98% (139 out of 142 children) compared with 88% (183 out of 208 children) in 2009/10.” (Youth Justice Indicators Summary Report April 2018).

She also says rehabilitation for a defendant comes late in the sentence and it would be better if rehabilitation was started earlier in the sentence.

Last updated on the 3rd August 2018