February 2013 Māori Law Review

More on Mason: Cultural factors in sentencing

R v Mason

High Court [2012] NZHC 1849

27 July 2012

In R v Mason [2012] NZHC 1361 Heath J gave reasons for refusing to allow Mr Mason to be dealt with in accordance with tikanga Māori in his trial and sentencing.  After pleading guilty to charges of murder and attempted murder Mr Mason was convicted. Mr Mason was sentenced on 27 July 2012.

Max Harris returns to Heath J’s earlier judgment, explores how tikanga Māori matters were addressed in Heath J’s sentencing notes, and makes some remarks about how cultural considerations (including tikanga Māori considerations) might be incorporated into sentencing in future, particularly in light of the Sentencing Act 2002 and a recent decision of the Supreme Court of Canada.

Download R v Mason [2012] NZHC 1849 here (88 KB PDF).

Overview and result

In R v Mason [2012] NZHC 1361 (“Mason (No 1)”) (reported (2012) June Māori LR) Heath J gave reasons for refusing to allow Mr Mason to be dealt with in accordance with tikanga Māori in his trial and sentencing.  After pleading guilty to charges of murder and attempted murder Mr Mason was convicted. Mr Mason was sentenced on 27 July 2012: R v Mason [2012] NZHC 1849 (“Mason (No 2)”).


The first Mason judgment on the relevance of tikanga Māori to the trial and sentencing process: a recap for present purposes

In Mason (No 1), Heath J concluded that a Māori customary system for addressing wrongs (which had existed in 1835 and 1840, at the time of the Declaration of Independence and the Treaty of Waitangi, respectively) had been extinguished “by necessary implication” through “the combined effect of ss 5 and 9 of the Crimes Act 1961”.[1]  Heath J suggested that it was unlikely that a criminal trial process could ever accommodate tikanga Māori: in a footnote he even said, quite strongly, that the “adversarial contest” was “inherently inconsistent with the nature of tikanga Māori”.

However, he expressed more confidence in the capacity of sentencing to integrate tikanga Māori considerations.  Sections 8(i) and 27 of the Sentencing Act 2002 recognised that sentencing can reflect cultural background, said Heath J; generally, sentencing is “much more amenable to the use of customary processes and principles”; and after outlining how tikanga Māori and restorative justice could be combined through the use of hui around sentencing, he said that there are “advantages to all concerned in constructing a sentencing process in this form” – a strong endorsement of restorative justice practices, as well as of processes associated with tikanga Māori.  Heath J did qualify these positive statements slightly.  He noted (citing an article that he had written extra-judicially) that the more serious the offending, the harder it might be to justify cultural adjustments to sentencing.  He also observed that a focus on reconciliation may run into conflict with the community interest in marking out the seriousness of a crime.  But Heath J’s overall message was clear: there is flexibility in sentencing processes and principles that could allow for a reconciliation between the “traditional” criminal justice system and the precepts of te ao Māori.

All of this meant that at the time of Mason (No 1), practitioners and commentators awaited Heath J’s sentencing notes in the Mason case with interest.  It seemed conceivable that Mason (No 1) was providing just a drum-roll for a bigger decision to come.


Mason (No 2) – sentencing and tikanga Māori considerations

In Mason (No 2), Heath J imposed on Mr Mason a term of life imprisonment, and ultimately settled on a minimum term of imprisonment of 17 years on the charge of murder – with a term of 10 years in prison to be served concurrently for the attempted murder charge.

Heath J applied a conventional but careful approach, diligently reviewing the facts, acknowledging the victim and family, addressing Mr Mason’s personal circumstances, considering whether a minimum period of imprisonment was necessary, and then weighing further factors relevant to whether the minimum period should be increased.

According to Heath J, the fact that the acts committed involved a home invasion, particular brutality, and the occurrence of multiple crimes on one night meant that a minimum period of imprisonment was required.  On the issue of factors relevant to the term of imprisonment, Heath J held that Mr Mason’s guilty plea and acceptance of responsibility for what occurred were “balance[d] out” by his prior offending and the circumstances of this offending.  He therefore found it unnecessary to increase the minimum period of imprisonment beyond 17 years.

References to tikanga Māori and cultural considerations appear throughout the judgment.  At [5], Heath J noted that he allowed the victim impact statements in this case to remain forthright and strong, to approximate the approach to issues on a marae (an acknowledgment of some importance, given some of the criticisms of late by victims of crime that the criminal justice system has suppressed their voices).  Also in the introductory section of his sentencing notes, Heath J observed that it was difficult for him as a Pākehā judge to understand “how kaupapa Māori apply in the circumstances” – a comment that some might see as justifying greater judicial education on kaupapa Māori, and more appointments of Māori judges to the bench.  Then, most tellingly, at [7], Heath J said that “cultural considerations are relevant” but that they had “little weight” in the case before him.  This idea that tikanga Māori matters unfortunately could not be applied in this case because of the seriousness of the crimes seems to lie just beneath the surface of the judgments in both Mason (No 1) and Mason (No 2).  Heath J was insistent, as well, that consideration of matters Māori was consistent with the notion that there is “one law for all in New Zealand”, and his Honour reiterated this latter point at [8].

He returned to tikanga Māori when discussing Mr Mason’s background.  Heath J pointed out that Mr Mason, of Ngati Awa and Ngati Ranginui descent, had “immersed” himself in “tikanga Māori” after coming out of prison in the early 2000s, attempting to better himself through education, only for these improvements to be shattered by his crimes of February 2011.

Heath J went on then to consider cultural information that had been prepared by Mr Maanu Paul on the basis of a hui that Heath J had called in Mason (No 1).  The victim’s family had not attended, though Heath J had extended the invitation to them, but important information was still garnered from this hui.  Before outlining this information, Heath J accepted that “tikanga” was a “living concept”, “accept[ed]” the “importance of wairua”, and affirmed the “ties of whanaungatanga that exist in te ao Māori”: important acknowledgments that ought to be revisited by lawyers and judges in future cases.  Building on these concepts, the Court highlighted the shame and unworthiness – and whakamā – felt by Mr Mason in the lead-up to committing the crime.  However, continuing the line of reasoning he had introduced earlier, Heath J expressed caution about how far such considerations could be relevant to his decision-making.  There are “problems in taking the tikanga Maori approach too far”, he said.  In a sentence that is a useful summary of Heath J’s approach, he said: tikanga Māori considerations “are relevant to the sentencing process but they cannot drive it”, in particular because of the community interest in consistency in sentencing.

There are two further mentions of tikanga Māori.  Neither mention is an attempt to use tikanga Māori to achieve a more merciful outcome for Mr Mason (though it perhaps should not be presumed that incorporation of tikanga Māori will always lead towards parsimonious outcomes).  At [47], after lamenting Mr Mason’s delay in accepting responsibility for his actions, Heath J said the following: “The tangle you got yourself into in dealing with the way in which the Courts approach matters such as this and issues of tikanga Māori proved a distraction and stopped the most important thing from happening”, which Heath J regarded to be an understanding of what occurred and an acceptance of responsibility.  A very critical eye might see this statement as punishment for Mr Mason’s attempts to raise issues of tikanga Māori, and discouragement for those wishing to invoke such arguments in future.  But the better view is probably that Heath J was here only indicating that Mr Mason ought to have apologised to the victim’s family at an earlier stage, and pursued his arguments around tikanga Māori with remorse already expressed.  Finally, Heath J referred in passing to Māori cultural concepts when indicating, towards the end of his judgment, that Mr Mason had brought shame on himself, his iwi and his whānau through his actions.

Overall, Heath J is to be applauded for engaging respectfully with tikanga Māori in both Mason (No 1) and Mason (No 2).  Rather than dismissing tikanga Māori arguments out of hand, as some judges have in the past, he has in these judgments carefully considered tikanga Māori claims – and has supplied legal or textual arguments (as opposed to sweeping arguments about parliamentary sovereignty) to rebut such claims.  In dealing with those arguments, Mason (No 1) and Mason (No 2) contain valuable material that might be used in future cases on issues such as: the importance of the Declaration of Independence and the Treaty of Waitangi (since Heath J used these documents as important markers in determining the existence of Māori custom); the links between the judicial oath and tikanga Māori;  the criteria for determining the existence of a custom; the utility of restorative justice and tikanga Māori approaches to sentencing; the need for judges to be educated about te ao Māori; and the significance of concepts such as wairua, whakamā, and whanaungatanga.  The two judgments, taken together, are brave judgments that open up new lines of inquiry at the same time as they open up Heath J to predictable criticism.

Drawing on tikanga Māori in future cases – room for a more robust approach?

Notwithstanding the positive comments made above, it may be that lawyers and judges can go further than Heath J has in Mason (No 2), and use his comments as a springboard or starting point in the effort to achieve greater recognition of tikanga Māori in New Zealand law.  Heath J’s reassuring reminders that there is one law for all in New Zealand may not be necessary in future cases as there grows to be greater comfort around the place of Māori concepts in the law of New Zealand.  Moreover, over time (and with help from expert witnesses, lawyers, and others), it may be that judges can go beyond merely taking tikanga Māori factors into account in the somewhat minimalist way outlined by Heath J.  Heath J acknowledged the importance of tikanga Māori factors in the abstract, and also suggested that he had allowed them to influence his decision on the length of the minimum period of imprisonment.  But a more robust approach may be required.

In this respect both the Sentencing Act and a recent Supreme Court of Canada decision, Ipeelee v R 2012 SCC 13, [2012] 1 SCR 433 (“Ipeelee”), are instructive.  Section 8(i) of the Sentencing Act 2002, a very under-used provision (referred to in a footnote in Mason (No 1)), says that a court “must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose” (emphasis added).  There is a tenable argument that every sentence should have “a partly … rehabilitative purpose” if offenders are to be returned to society at some point, and that therefore in every sentencing decision judges have not just a discretion, but a statutory duty, to take into account an offender’s whānau and cultural background, and to take into account how that has affected particular offending.  This could entail consideration of whether an under-developed cultural identity (perhaps undermined in childhood, as through removal from a family into foster care – which is what occurred in Mr Mason’s case – without cultural support) has contributed to an offender’s culpability.  The argument, if accepted, would require much more extensive pre-sentencing reports (which might be called “Mason reports”, if they are to be traced back to this case) and closer analysis in the case of Māori offenders of whether cultural deprivation has played some role in offending.  (It is worth noting that another under-used but powerful provision is s 27 of the Sentencing Act, discussed by Judge O’Driscoll in [2012] NZLJ 358.  Judge O’Driscoll makes the point that judges are reliant on counsel to make arguments based on s 27; there is the same reliance on counsel in the case of arguments based on s 8.)

The Canadian Supreme Court decision in Ipeelee, a decision worthy of reading by every criminal lawyer in New Zealand, might support such an approach.  The case involved consideration of s 718.2(e) of the Canadian Criminal Code, which stated that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.  The 6-1 majority decision of the Canadian Supreme Court (delivered by LeBel J) reiterated what had been said in the earlier decision in R v Gladue [1999] 1 SCR 688, namely, that the provision was a “direction to members of the judiciary to inquire into the causes of the problem” of indigenous over-representation in the Canadian justice system, “and to endeavour to remedy [the problem], to the extent that a remedy is possible through the sentencing process”.

The majority in Ipeelee said that a remedy could come either through a consideration of how indigenous background informs culpability in each case, or through an analysis of how sanctions for offending could be tailored to indigenous needs, such as through the use of restorative justice practices.

Also relevantly for New Zealand, the majority in Supreme Court of Canada corrected two repeated errors in application of s 718.2(e) by lower courts.  It held that judges were too quick to require a causal link between cultural background and offending, when indigenous background and “the devastating intergenerational effects of the collective experiences of Aboriginal peoples” should be accepted as the necessary context of sentencing when an indigenous offender is involved.  Next, it pointed out that s 718.2(e) should not have a lessened effect when serious offending had occurred; to suspend its operation in cases of serious offending would be to “run afoul” of “the statutory obligation”.

Finally, in applying the principles to the cases of two offenders, the majority of the Supreme Court of Canada upheld one lower court’s view that indigenous background must be given “tangible consideration” in a way that “will often impact the length and type of sentence imposed”.  (The dissenting judge in the Supreme Court, Rothstein J, felt that it was enough that indigenous background be “considered and weighed in the sentencing judge’s decision”.)

There will be some who think that the Canadian statutory framework is too different to make Ipeelee a highly relevant case for New Zealand, and that, at best, Ipeelee highlights the value of a specific sentencing provision requiring judges to consider the indigenous background of offenders.  That may be so; certainly, Ipeelee does suggest that the Sentencing Act could be profitably amended, given the similarities in indigenous over-representation across New Zealand and Canada.  A convenient place for that amendment would be alongside other principles of sentencing in s 8 of the Sentencing Act.

However, there are others who might think that the statutory and social contexts in Canada and New Zealand are sufficiently similar that points of principle can be extracted from Ipeelee and directly applied in New Zealand.  (Relevantly, Australian lawyers in the appeal of William David Bugmy have already attempted to apply Ipeelee in a special leave application regarding sentencing to the High Court of Australia.) Four principles could be said to arise from Ipeelee for application in New Zealand, either through the legislative pathway of s 8(i) or in the form of more freestanding principles:

  • First, it might be said that s 8(i) of the Sentencing Act, while it does refer generically to “cultural background” as opposed to “indigenous background”, is in the words of the Ipeelee majority judgment a “direction to members of the judiciary to inquire into the causes of the problem” of indigenous over-representation in New Zealand “and to endeavour to remedy [the problem], to the extent that a remedy is possible through the sentencing process”.
  • Second, Heath J’s judgments in Mason (No 1) and Mason (No 2) might be drawn upon to endeavour to remedy this problem – with an effort made to consider how the indigenous background of an offender in New Zealand affects culpability, as well as the appropriate sanction (these being the two ways in which the Supreme Court of Canada in Ipeelee suggests indigenous background might be relevant).
  • Third, New Zealand courts might follow the lead of the Canadian Supreme Court in Ipeelee, and refuse to require a causal link between cultural background and offending (adopting, instead, the approach of taking judicial notice of the intergenerational effects of colonisation), while also rejecting the view that cultural background is less relevant when serious offending occurs.  That rejection would, of course, cut across Heath J’s approach in Mason (No 1), which suggested that it was difficult to allow cultural adjustments to sentencing as offending gets more serious.
  • Fourth, New Zealand courts could require that “tangible consideration” be given to cultural background, per Ipeelee, and could stipulate that this would generally require an impact on the type or length of sentence given.  Such an approach would also arguably go further than Heath J’s sentencing notes in Mason (No 2), since Heath J preferred to emphasise that tikanga Māori concerns had been taken into account, rather than having any tangible impact on the sentence (though he did suggest that they had influenced the length of the minimum period of imprisonment).

These sketches of a more robust approach to the sentencing of Māori offenders will require further debate and elaboration (debate which has already started in other fora: see, for instance, Valmaine Toki’s comment on Mason in [2012] NZLJ 357).  In particular, greater attention may need to be paid to the extent of differences between “tikanga Māori” as referred to in the Mason judgments, and the “cultural considerations” in s 8 of the Sentencing Act. It is unclear whether the thoughts presented above will be attractive to lawyers and judges.  What is clear is that Heath J’s judgments in the Mason saga have provided the catalyst for renewed discussion of this issue.  Mason (No 2) – and the judgments, when read together – may not have secured concrete gains for Mr Mason, or reached as far as they might have in interpreting the Sentencing Act.  But the Mason judgments have laid the foundations for future argument.  And that, at least, is a start.

[1] In passing it is worth noting that this reasoning, based on ss 5 and 9 of the Crimes Act, is open to question.  While the title of s 9 of the Crimes Act (which says “Offences not to be punishably except under New Zealand Acts”) favours Heath J’s conclusion, the text of the section is more confined.  It makes clear that no offences are to be created under the common law or through the operation of the United Kingdom Parliament (with exceptions for contempt and the use of the Court Martial procedure).  If one accepts that offences under tikanga are distinct from common law offences, then a tikanga system is not reached by s 9.  As for s 5, while it too on the surface seems to buttress Heath J’s conclusion (as it says that the Crimes Act “applies to all offences”), the definition of “offence” in s 2 of the Crimes Act as “any act or omission for which any one can be punished under this Act or under any other enactment” also suggests that s 5 extends only to existing statutory law – and does not touch tikanga Māori.  It is not clear that the “combined effect” of ss 5 and 9 achieves a different outcome, either.  If this reading of the Crimes Act is correct, then Heath J may have been too quick to hold that the effect of ss 5 or 9, either individually or combined, was to extinguish a tikanga Māori approach to criminal law – but this argument is for another paper.

Author: Max Harris

Max Harris is an Examination Fellow at All Souls College, Oxford. Prior to post-graduate study at Oxford he was a clerk to Chief Justice Dame Sian Elias at the Supreme Court. He has a BA/LLB(Hons.) from the University of Auckland (where he majored in Political Studies and History). He has also previously been the co-chair of JustSpeak, a youth-based criminal justice group.