November 2018 Māori Law Review

Criminal law – cultural context and background in sentencing – Tiana Epati

Hui-a-Tau Conference 2018 - Te Hunga Roia Māori o Aotearoa

Tiana Epati, President-Elect of the New Zealand Law Society

October 2018

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its 30th annual conference at Rotorua in October 2018. The theme of the conference was “Ka kuhu au ki te ture, hei matua mo te pani – I seek refuge in the law, for it is a parent of the oppressed” – Te Kooti Arikirangi Te Turuki. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper was given by Tiana Epati, criminal lawyer and President-elect of the New Zealand Law Society.

The growing recognition of cultural context and background in criminal sentencing

At the last conference, Judge Wharepouri discussed the case of Taingahue v R which involved a successful appeal against sentence for a young Māori, solo mother who came from a gang affiliated family background and had made considerable rehabilitative efforts to care for her baby. The argument in the High Court on appeal was premised on the importance of context and a more nuanced approach to sentencing.

I was the lawyer who took that appeal. I thought it might be helpful to come and explain what has happened since Taingahue.

The purpose of this paper is to discuss the cases which have followed in the last year and examine the growing recognition of cultural context and background in sentencing.

Keil v R

In Keil v R[1] the Court of Appeal recognised the significance of s 27 Sentencing Act reports when looking at the cultural and family background of Māori defendants. For the first time, the Court of Appeal said:[2]

Judges in all courts of this country are acutely conscious of the overrepresentation of young Māori in our prisons. Moreover, before this event Mr Paul had led a blameless life. We accept that he presents a low risk of reoffending. Imprisonment will only serve the requirement of accountability, denunciation and deterrence or others from committing the same offending. It is unlikely to provide personal deterrence. It will not serve to protect the community from Mr Paul, from whom it does not need protection. And it will not assist in Mr Paul’s rehabilitation and reintegration, who acted out of character in exceptional circumstances by a degree of cultural provocation.

In short, we agree this is a case which underscores the importance of accounting for a particular offender’s personal, family, whānau, community, and cultural background during sentencing. That is why s 27 reports were prepared and considered.

However, the Court went on to say that while the “cultural norms” helped to explain the offending, it could not condone what was serious violent offending. The Court of Appeal was thus satisfied the 20 percent discount given in the case of Mr Paul was sufficient in terms of the information provided in the s 27 report. The Court went on to comment on the tension in sentencing when having regard to a particular cultural context and said:[3]

Our sentencing regime cannot be seen to condone a particular group’s use of violent force to exact physical retribution. Similarly, cultural norms cannot excuse that conduct for some groups but not for others. While those norms may help to explain, they can never justify offending of such severity as occurred here.

A v R

In A v R[4] the section 27-type material put forward pertaining to Mr A’s personal circumstances, and his role within the East Coast Māori community, were pivotal in the success of an appeal against 21 months imprisonment for sexual violation.

Mr A was a tutor at a local technical institute and taught carpentry to a number of young Māori students with a particular focus on restoring marae. He had spent a considerable period of his adult life supporting and developing initiatives to assist small East Coast Māori communities find work experience and apprenticeships. His prospects for rehabilitation and reintegration into his own community were, therefore, exceptionally positive.

In the midst of the break-down of his marriage and separation from his wife, Mr A (in a heavily intoxicated state) sexually violated her one night. The offending was serious and had an understandably serious emotional impact on Mrs A. She described being “totally broken” as a result of what occurred.

In deciding a sentence short of imprisonment was appropriate, Clark J had regard to three separate factors. One of these was the role Mr A had in his community and the significant contribution and commitment to young Māori on the East Coast. He had also made very real progress towards rehabilitation by being up-front with members of his own community,  employer, and whānau about what had happened. At sentencing, a local priest addressed the Judge directly in accordance with s 27 and described how the offending had impacted all of them as a community, but they were all coming together to support both Mr A and Mrs A. In particular, the Judge took note of the fact Mr A had done his utmost to participate in restorative justice with his ex-wife and atone for his appalling behaviour. He had undertaken counselling to deal with the cause of his offending and pleaded guilty at the earliest opportunity. Such was his demonstrated commitment to change, his ex-wife made a passionate plea to the sentencing judge for mercy and supported a non-custodial sentence. However, the District Court refused relying on the restrictive words of s 128B of the Crimes Act 1961 as excluding consideration of wider whanau views and circumstances.

On appeal, it was argued the s 27 information spoke to the ‘particular circumstances’ limb of s 128B and which allowed for the consideration of all the material evidencing exceptional rehabilitative prospects. Clark J agreed and allowed the appeal, substituting a sentence of home detention.

Like Keil, A v R is an example of how a person’s whānau and wider community cultural connections can be seen as highly relevant to common sentencing principles such as rehabilitation and reintegration. In Keil, the cultural context was also directed at explaining the offending because there had been a serious loss of mana in relation to a senior family member. The cultural provocation, and need for there to be muru, explained why Mr Paul felt morally bound to support and participate with other family members in a confrontation with the victims.

R v Alexander

In R v Alexander,[5] Nicholas Davidson J considered the relevance of a s 27 report in relation to the sentencing of a young Māori defendant for the murder of his brother. It was a stage 2 offence under the three strikes sentencing regime which meant the Court had to sentence an offender to life imprisonment without parole unless satisfied that given the circumstances of the offence and the offender, it would be manifestly unjust to do so, in which case a minimum period of imprisonment must be imposed.

Mr Alexander had led a very troubled and severely unstructured life. He was described at sentencing to be affiliated to Ngāti Tuwharetoa, Ngati Porou and Ngā Puhi but grew up with no contact with his whānau marae, iwi, hapū, Runanga or any aspect of Māori culture. He was fostered out at 18 months where he suffered abuse, spent most of his life living on the streets and started appearing in Youth Court at the age of 14 years. At 25 years of age, Mr Alexander had already spent a considerable period of time in prison. He stabbed his brother to death following an alcohol fuelled evening over what appears to have been a minor disagreement over being locked out of the house. He told police he had no memory of the incident.

Simply put, Mr Alexander was someone who did not “really know what a whānau is or means [he has] not experienced it” and someone who looked after himself because he believed “no one else would”.[6] The High Court was provided with a detailed s 27 report which explained the significance for a Māori man, such as Mr Alexander, who has no cultural reference point or connection to ground them in any way. It recommended - alongside psychological trauma support, counselling, and rehabilitation – engagement with a kaumatua from Mr Alexander’s iwi to explore and learn whakapapa.

Nicholas Davidson J went on to say:[7]

[C]ultural information must be considered by the Court when sentencing, and s 8(i) of the Act is to ameliorate the over representation of Māori in prison, and to encourage judges to adopt a restorative approach in sentencing. This Report is significant. It has been said by His Honour Judge O’Driscoll in the District Court that s 27 of the Act is one of the most under-utilised and unknown provisions of the Sentencing Act, and in my view, it squarely bears on the sentence in your case. I incorporate this material in the application of the three strikes regime.

Ultimately, it was found to be manifestly unjust and grossly disproportionate to impose a whole life sentence, relative to a finite sentence of 11 years imprisonment. A ‘stand-out feature’ was Mr Alexander’s isolation and lack of knowledge about tikanga which made for “sad and insightful reading”.[8]

Alexander is a significant decision because of the extent to which the s 27 information was utilised when applying the manifestly unjust test under the three strikes regime. Like A v R, the information was considered when applying the statutory presumptions at sentencing. And like A v R, it appears to have been pivotal in the court deciding a more rehabilitative and compassionate approach was available.

Solicitor-General v Heta

It’s fair to say all of these recent cases came to a head in Heta.[9]

The Crown appealed against a 30 percent discount on sentence for a s 27 report for causing grievous bodily harm with intent and assault. They argued the Court’s comments in Keil v R regarding the limits of cultural considerations in sentencing, and a survey of recent authorities, suggested a discount of only 10 percent was, at most, available.

Ms Heta stabbed her partner multiple times to the chest and underarm area believing he was having an affair and after drinking at a neighbour’s house. He suffered a punctured lung and was hospitalised for nearly two weeks. Adopting an over-all starting point of six years and eight months, the Judge gave a 10 percent discount for remorse and restorative justice.

As to the s 27 report, Judge Moala observed Ms Heta’s life reflected the significant postcolonial trauma and disruption of the cultural identity experienced by Māori whānau, hapū and iwi, where alcohol and poverty has resulted in offending of this type. The Judge also identified Ms Heta’s linkages to her Māoritanga, the importance of her relationships with her whānau and the effect of her mental health and poor decision-making on her wairua. A total discount of 21 months was made “not just for the cultural aspect of it, but for the horrific background in that report”.

Adding the 25 percent for early guilty pleas, an end sentence of three years and two months’ imprisonment was imposed.

The Crown appealed to the High Court. Whata J set out in careful (and redacted) detail the s 27 report which had been collated and produced by Associate Professor Khylee Quince. It documented a background characterised by alcohol abuse, parental absenteeism, violence, and other atrocities. Ms Heta’s personal adult relationships had also been marked by violence and problematic alcohol consumption, a problem which had been a dominant feature since she was 10 years old.

In rejecting the Crown argument as to any ‘ceiling’ on a discount based on s 27 information, Whata J said:[10]

Section 27 however does not enunciate a “Māori” specific response to this asymmetry [with Māori incarceration rates]. Rather, s 27 enables background information about offenders, including Māori, to be presented to a sentencing Judge. The matters listed at subs (1) incorporate into the sentencing exercise the full background of the offender, the relationship of that background to the commission of the offence, the processes used to resolve the offense, and the role of whānau and community to prevent further offending and in respect of possible sentences.

The extent to which this s 27 information engages the purposes and principles of the Act is then an evaluative matter and applied, where relevant, in accordance with the sentencing framework. While there is no statutory direction as to the weight to be afforded to the information, the requirement at s 27(2) to hear from a person called by the offender under s 27(1) unless unnecessary or inappropriate, emphasises the importance of each of the matters specified at subs (1) to the sentencing exercise.

As to previous authority rejecting the concept of a presumptive discount, Whata J said:[11]

[T]he Court in Mika was responding to a submission seeking a fixed 10 percent discount based “on Māori heritage and thus social disadvantage”. The Court was rejecting the idea that ethnicity per se triggered a discount. It was not saying that the presence of systematic deprivation was presumptively irrelevant to the sentencing exercise.

He went on to say:[12]

I agree however that the presence of deprivation, systematic or otherwise, in the lives of all Māori offenders cannot be assumed. This brings back into focus the significance of s 27. It mandates and enables Māori (and other) offenders to bring to the Court’s attention information about, among other things, the presence of systematic deprivation and how this may relate (if at all) to the offending, moral culpability, and rehabilitation. Thus, the cogency of any s 27 information, and the likely presence of systematic deprivation and strength of the linkages between (among other things) that deprivation, the offender and the offending, together with the availability of rehabilitative measures to specifically address the effects of systematic deprivation, will be critical to the assessment.

Turning to the Keil decision, Whata J agreed the seriousness of the offending may necessarily reduce the discount for personal mitigating factors and that the sentencing regime does not condone violent retribution and cultural norms cannot excuse or justify that type of violence. However, Keil was decided on its own facts. It was expressly directed to the offending by Mr Paul and the cultural explanation for it. It did not, therefore, lay down any general rule about discounts for personal background factors. Citing the Supreme Court’s observation regarding sentencing flexibility in Hessell, Whata J concluded “it remains incumbent on any sentencing judge to weigh the facts of the particular case”.[13]

In finding the discount of 30 percent was (while generous) not manifestly inadequate in all the circumstances, Whata J essentially held:[14]

  1. There is no discernible discount ‘range’ for deprivation per se.
  2. Personal circumstances discounts will be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol
    abuse, and mental health issues.
  3. Deprivation is difficult to separate out from other factors but will attract greater discount where there are clear linkages between personal circumstances and the offending (and thus the moral culpability).
  4. Mercy is another factor.
  5. Countervailing sentencing factors, where applicable, may then curb the extent of any discount.

Postscript

Just before the Hui-a-Tau, the Court of Appeal gave judgment in R v Taulapapa.[15]   This was a Crown appeal against a discharge without conviction of Ms Taulapapa on charges of kidnapping and burglary.

Ms Taulapapa, then aged 18 years, took a baby while the parents were sleeping out of misguided loyalty to her cousin, Nadene Manukau-Togiavalu, who had persuaded the appellant that she had given birth to the baby and now regretted the decision to adopt the baby outside of the whānau. In truth, Ms Manukau-Togiavalu had orchestrated an elaborate ruse to convince others she had been pregnant and given birth when, in fact, she had not.

In upholding the decision of the High Court to discharge Ms Taulapapa, the Court of Appeal placed significant reliance on the s 27 report filed by the defence in the lower courts.  At paragraphs [13] - [14] of the judgment, Miller J (delivering the decision of the Court) took judicial notice of the of the importance of whanaungatanga and whakapapa in Te Ao Maori.  In particular, Miller J accepted the importance of whānau as an “all-pervasive” concept which assisted to explain why Ms Taulapapa would have felt obliged to assist a relative to recover ‘her baby’.

Importantly, the Court of Appeal recognised that section 27 information “may be relevant not only to the form and length of her sentence but also to the gravity of her offending”.  In accepting there was a close nexus between Ms Taulapapa’s misunderstanding of whanaungatanga and her offending, the Court cited with approval paragraphs [49]-[50] of Whata J’s Heta decision in a footnote.

In my view, Taulapapa is firm authority for the proposition that cultural context will be relevant to all stages of the sentencing exercise, not just mitigating factors.

Notes

[1] Keil v R [2017] NZCA 563.

[2] At [56] and [57].

[3] At [58]. My emphasis.

[4] A v R [2018] NZHC 543.

[5] R v Alexander [2018] NZHC 1584.

[6] At [72].

[7] At [77].

[8] At [106].

[9] Solicitor General v Heta [2018] NZHC 2453.

[10] At [37] and [38].

[11] At [42].

[12] At [49].

[13] At [59].

[14] At [62] and [63].

[15] R v Taulapapa [2018] NZCA 414.

Author: Tiana Epati

Tiana is the President-elect of the New Zealand Law Society. She has been a partner in her firm, specialising in criminal defence and general litigation. She was appointed a Youth Advocate In 2015. She currently sits on the New Zealand Law Society Board as Vice President for the Central North Island. In 2018 she was appointed counsel to assist the Coroner in a joint inquest in the East Coast region. Tiana was previously the President for the Gisborne branch of the New Zealand Law Society. She has also served as a member of the New Zealand Law Society’s Criminal Law Reform Committee and the external committee to the Legislative Design Advisory Council.