September 2020 Māori Law Review

Pūnaha whakawā – criminal justice – sentencing – systemic deprivation discounts – progress but not perfect

Systemic deprivation discounts and section 27 Reports: progress but not perfect

Oliver Fredrickson*

In Zhang v R, the Court of Appeal confirmed that “social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.” This aligns with an emerging trend among sentencing judges to award discounts to reflect “systemic deprivation”. Section 27 of the Sentencing Act 2002 has become a vehicle for much of this change. After years of neglect, s 27 is finally being utilised to bring vital information about defendants’ personal, family, whānau, community, and cultural background. Although this is a welcome development, the manner in which sentencing courts are applying this information and awarding discounts to reflect systemic deprivation has been inconsistent in two respects and this is troubling. First, although it is clear that a “causal nexus” is necessary, the extent to which judges are willing to critically engage with a s 27 report and draw available inferences has not been consistent. Second, it remains unclear whether a sentencing discount to recognise systemic deprivation remains available in particularly serious cases. As a result, sentencing judges have adopted both approaches, with the unfortunate result of having comparable offenders receiving different sentencing discounts.

Introduction

For many years, academics, practitioners, and even judges have called for the greater use of section 27 of the Sentencing Act 2002 as a tool for introducing personal information about the family, whānau, community, and cultural background of offenders.[1] In the past 18 months, these calls have undoubtedly been answered.[2] Slowly but surely, it has become standard practice for defence counsel to request a “section 27 report”, providing judges access to invaluable information about the offender’s family, whānau, community, and cultural background. This is a positive trend, and a powerful step towards the individualised sentencing approach recently endorsed by the Court of Appeal.[3]

Once brought before this court, this information may be relevant in a number of ways. As Doogue J noted in R v Rigby, it may:[4]

... form part of the overall assessment of the offender’s culpability; it may assist in explaining the offender’s behaviour, or it may relate to an offender’s rehabilitative prospects or to the type of sentence that may be most appropriate.

Now that this information is routinely being brought before the court, it is imperative that sentencing judges use this information consistently. Most notably, section 27 reports provide sentencing judges with the necessary information to award a sentencing discount. Unfortunately, an analysis of the ever-growing case law suggests that the approach taken in the Senior Courts has been inconsistent in two respects. First, although it is clear that a “causal nexus” is necessary between the systemic deprivation and the offending, the extent to which judges are willing to critically engage with a s 27 report has not been consistent. Some judges have been willing to draw inferences to find a causal nexus while others have stressed that “many people with disadvantaged backgrounds do not commit criminal offences.”[5] Second, it remains unclear whether a sentencing discount to recognise systemic deprivation is available in cases involving particularly serious offending. One line of cases appears to preclude such discounts when the offence is particularly serious while, at the same time, another line of cases continues to award discounts for even the most serious offences. This divergence is evident in the conflicting guidance from the Court of Appeal in Arona v R and Hohua v R. As a result, sentencing judges have adopted both approaches, with the unfortunate result of comparable offenders receiving different sentencing discounts.

Whether or not an offender receives a sentencing discount is of great importance and should not depend on the sentencing judge. While individualised sentencing is essential, the approach judges take to sentencing should remain consistent.

Discussion

Discounts for “systemic deprivation”

In Zhang¸ the Court of Appeal plainly stated that:[6]

[S]ocial, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.

Although this did not pave new ground, it powerfully reinforced the notion that the offender’s past social, cultural or economic deprivation may justify a sentencing discount. This rests on the premise that such deprivation may have impaired the choice of the offender is therefore a relevant factor in the overall assessment of culpability.[7]

The phrase “social, cultural or economic deprivation” encapsulates the pervasive and persistent disadvantage that many offenders have suffered throughout their life. Although the Court in Zhang mentioned each form of deprivation separately, the unfortunate reality is that an offender will seldom face one or the other. Social, cultural, and economic deprivation are so deeply intertwined that it is likely an offender will suffer all three. In Solicitor-General v Heta, Whata J used the term “systemic deprivation”.[8] An extremely broad concept, the symptoms of systemic deprivation regularly include experiences such as: familial instability or hardship; abuse (physical, psychological, or sexual); childhood exposure to drugs, alcohol, or gangs; inter-generational alcohol or drug abuse; inter-generational cultural and social dislocation or disconnection; continuing harmful effects of colonisation.[9]

Systemic deprivation is not limited to Māori offenders, as cases have recognised systemic deprivation is faced by Pākehā and other ethnicities.[10] However, the unfortunate reality is that Māori have suffered considerable systemic deprivation resulting from loss of land, language, culture, rangatiratanga, mana, and dignity.[11] The impact of this systemic deprivation manifests in Māori being disproportionately represented among the poorest and most criminalised in New Zealand.[12] With this in mind, it is unsurprising that the vast majority of defendants who have received sentencing discounts to reflect social, cultural or economic deprivation have been Māori.

Proving systemic deprivation

In Solicitor-General v Heta, Whata J stated that the evidence of systemic deprivation (or social disadvantage more generally) “need not be elaborate” and that “Evidence from whānau about the offender’s life is enough”.[13] This is where section 27 of the Sentencing Act 2002 steps in. Section 27 has emerged as the vehicle through which this important information is brought before the court. Under s 27(1), an offender may request the court hears information about his or her personal, family, whānau, community, and cultural background and how that background may have related to the offending.[14]

Although the original intention of s 27 was to allow whānau members to speak on behalf of the offender, a common practice has developed whereby an independent third party (usually retained by defence counsel) prepares a cultural report to provide the court with relevant information about the offender.  Sentencing judges may not direct the preparation of a s 27 cultural report but a judge may “suggest to the offender that it may be of assistance to the court” to have one prepared.[15] While there will be cases where such a suggestion is appropriate, there is no duty on the sentencing judge to make one.[16]

Once obtained, a cultural report will usually be more comprehensive than a Provision of Advice to Courts Report (PAC Report) prepared by the offender’s probation officer. Chester Borrows, chairperson of Te Uepū Hāpai i te Ora, the Safe and Effective Justice advisory group, noted that PAC Reports are often “cut and paste documents using the same phrases over and over again”.[17] This perfunctory ‘box ticking’ exercise fails to provide the insightful material that sentencing judges need. Cultural reports, by contrast, explore the defendant’s background – rather than solely their present circumstances – and usually address: whānau background; cultural, social, and economic background; mental health; addiction; processes tried or available to resolve underlying issues; and available support from whānau or community. One significant advantage of a cultural report is that they are prepared by an independent third party. Many communities, particularly Māori, harbour distrust of the Crown. This distrust can cause the defendant to withhold essential, personal information from the probation officer preparing the PAC Report, who they view as an agent of the Crown.

The following excerpts illustrate the benefit of involving a trusted third party who can relate to the defendant on a personal and cultural level:

  • Green v Police: “I have read the cultural report very carefully and more than once … I am impressed by its realism but also by the fact that, perhaps for the first time, Mr Green engaged with the report writer in a way that became meaningful for him. From this engagement it seems Mr Green has gained clarity and insight into how he comes to be where he is today.”[18]
  • R v Kahia: “The report is helpful given the relative paucity of information contained in the pre-sentence reports. The report writer had the advantage of a face-to-face interview with you, which had been denied to the probation officer.”[19]
  • R v Duff: “You refused to engage with the probation service. Consequently, Ms Dorset highlights your background through an extensive cultural report”.[20]
  • R v Cullen: “… you seem to have adopted a different stance when speaking to Shelly Turner who has prepared a s 27 report on your behalf”.[21]

A s 27 cultural report can comprehensively inform the sentencing judge about the offender’s background. This background will often illustrate strong evidence of systemic deprivation which, in turn, may warrant a sentencing discount. This is best illustrated through an example.

In R v Karaitiana, Thomas J provided a comprehensive summary of the “helpful and insightful” report prepared by academic Māmari Stephens (Te Rarawa).[22] The report detailed how Mr Karatiana affiliated primarily with Ngāti Awa and how his whānau retained an ongoing connection with the Marae. Ms Stephens informed the court that in 1865, Ngāti Awa had been economically prosperous but by the end of that year, it had lost 245,000 acres of land to confiscation. While some lands were returned, Ngāti Awa was left with roughly a third of its tribal lands, with most productive and economically viable land gone.[23] In settlement of its Treaty claim, the Crown accepted that the confiscation of Ngāti Awa tribal land had a truly devastating effect on the welfare, economy and development of Ngāti Awa. Ngāti Awa whānau often had to leave the area to seek work, usually as wage labourers as part of the post-war urbanisation in the twentieth century. Mr Karaitiana’s father was raised in the Ngāti Awa environment of economic deprivation and, along with 30 or more of his cousins, became a patched member of the Mongrel Mob.[24] This cultural report provided Thomas J with a historical and cultural insight into the Mr Karaitiana’s background that may have affected his culpability and rehabilitative prospects and would have been otherwise unavailable. Having heard this information, her Honour awarded a sentence discount of 25 months to reflect Mr Karaitiana’s cultural background, youth and efforts towards, and prospects of, rehabilitation.[25]

A causal nexus?

Although discounts for systemic deprivation are now common practice, the precise method for doing so remains somewhat unclear. Courts have consistently required more than simply a finding of systemic deprivation but have been unable to agree on exactly what more is required and how to go about finding it.

As a starting point, the Court of Appeal has confirmed that ethnicity alone cannot trigger a discount. In Mika v R, the Court of Appeal rejected a submission seeking a fixed 10 per cent discount based on Māori heritage and thus social disadvantage.[26] In Keil v R, the Court of Appeal emphasised this point, stating that:[27]

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 conduct for some groups but not others.

Instead, the defendant must show some causal nexus between the systemic deprivation and the offending.[28] However, the strength of the nexus required is somewhat unclear. Some judges have required a strong and direct evidential link whereas others are willing to make inferences between the defendant’s deprived background and the offending. This can be seen with reference to two cases where two defendants with remarkably similar backgrounds committed similar offences.

In the first, Solicitor-General v Heta, Ms Heta was convicted of causing grievous bodily harm after stabbing her partner in the chest multiple times.[29] Ms Heta’s whānau background included alcohol abuse, parental absenteeism, and violence. She suffered violence from previous personal relationships and her relationship with the victim had seen “more bad than good days”.[30]  Excessive and problematic alcohol consumption had also been a dominant feature of her life. Acknowledging that neither the PAC Report or the cultural report overtly linked Ms Heta’s systemic deprivation to the offending, Whata J nevertheless concluded that a link could be “reasonably inferred”.[31] His Honour undertook the following analysis to make this inference:[32]

  • Alcohol abuse was a key contributor to the offending;
  • Alcohol abuse was a learned behaviour from her parents;
  • Ms Heta was isolated from positive whānau and other pro-social influences early in life;
  • The alcohol abuse and whānau disconnection has significantly impaired Ms Heta's wellbeing and her life choices;
  • Ms Heta is however proud of her Māori heritage;
  • Ms Heta now has strong whānau support; and
  • Ms Heta has made significant strides already toward rehabilitation.

Justice Whata concluded that these key facts bore on both culpability and rehabilitation. While the cultural report did not “overtly draw linkages” between systemic deprivation and the offending, its presence in Ms Heta’s life could be “reasonably inferred”. As such, a discount of 30 per cent was appropriate to recognise the matters provided in the s 27 cultural report.[33]

By contrast, the approach taken in R v Patangata was quite different.[34] In Patangata, the defendant was convicted of manslaughter after she stabbed her partner a single time during a domestic altercation.[35] Ms Patangata’s childhood was marred by an environment that promoted alcohol, drugs, violence, and gang affiliation. She herself consumed alcohol and drugs from an early age and was exposed to domestic violence in her two previous relationships.[36] Having identified this evidence of systemic deprivation, Downs J made the following “general observations”.[37] First, an offender’s background is relevant at sentencing. Second, an offender’s background may arguably extend to systemic disadvantage.[38] Third, an offender’s ethnicity cannot, of itself, justify a sentencing discount.[39] Fourth, systemic deprivation is likely to have only a modest effect where the offending in particularly serious. Fifth, discounts to reflect systemic deprivation must require caution because:[40]

… correlation and causation are not synonymous. Many people with disadvantaged backgrounds do not commit criminal offences, and many law abiding people remain so despite difficult lives. Excessive discounts risk undermining the criminal law’s precepts of human agency and choice. This is not to deny the importance of upbringing or circumstance; it is to maintain perspective

Against this backdrop, Downs J then assessed whether a link existed between Ms Patangata’s systemic deprivation and her offending. His Honour acknowledged that Ms Patangata exposure to domestic violence, coupled with her use of drugs and alcohol from a young age, “perhaps provide[d] a very broad explanation” for her offending and tendency for violence but noted that “no explanation would be complete without recognition of … choice”.[41] Justice Downs eventually awarded a 10 percent discount, “largely because of [Ms Patangata’s] age and potential.”

Sir Joe Williams addressed these comments at the 2019 Sir Robin Cooke Lecture. He agreed with the emphasis on human agency but rightly noted that agency can be “unfettered or highly fettered.”[42] A proper rehearsal of the offender’s background allows sentencing judges to identify, as best they can, the degree to which free choice has been fettered by trauma, either directly experienced or inherited. As Sir Joe points out, “… without a proper command of an offender’s background, there can be no perspective, only myopia”.

Heta and Patangata are just two examples of the differing areas of focus adopted by sentencing judges when granting discounts to recognise systemic deprivation. In Heta, as in R v Ruddelle[43] and R v Karaitiana, the sentencing judge critically analysed Ms Heta’s background and willingly drew inferences to identify the linkages between her systemic deprivation and her eventual offending. By contrast, the court in Patangata, as in R v Carr,[44] and R v Duff,[45] instead stressed that many sufferers of systemic deprivation do not offend and that systemic deprivation provided only a “broad explanation” for the offending. In each of these cases, the Court identified significant systemic deprivation but ultimately concluded that that it did not explain the offending. This approach can be further contrasted with the recent case of R v Te Poono.[46] In sentencing Mr Te Poono for murder, Edwards J made the following insightful comments:[47]

The intergenerational history of both social and economic deprivation diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions that night. There is only one person who decided to pull the trigger. But it does help to understand how you got to that point, and to that extent it modifies your culpability.

Taken together with Mr Te Poono’s genuine remorse, her Honour concluded that the evidence of systemic deprivation could have resulted in a discount totalling up to 40 percent.[48] While accepting the role of choice in the offending, Edwards J went one step further than the courts in Patangata, Carr, and Duff, finding that Mr Te Poono’s systemic deprivation informed how he got to the point of offending and how his past of systemic deprivation may have coloured his choices, including the fateful choice to pull the trigger.

Although these two approaches are not necessarily inconsistent and will likely depend on the particular facts and information available including any cultural report, the variance in tone and focus is undeniable. Without substantive appellate court guidance, this divergence will continue and, as a result, offenders risk receiving differing sentencing discounts.

Particularly serious offending?

An analysis of the relevant case law reveals that it remains unclear whether a sentencing discount to recognise systemic deprivation remains available in particularly serious cases. This uncertainty derives from a divergence in Court of Appeal authority which, as a result, has led sentencing judges to follow contradictory approaches. This divergence began in Keil v R.

In Keil v R, Messrs Keil and Paul, along with a group of associates, drove to the victims’ house to seek retribution for an alleged assault on Mr Keil’s father the previous day.[49] The pair attacked the victims with various weapons, causing life threatening injuries. Noting the seriousness of the offending, the Court stated that:[50]

… the seriousness of [the defendant’s] offending necessarily subordinated the purposes of personal rehabilitation and reintegration to the wider societal purposes set out under s 7. The requirements of accountability, denunciation and deterrence had to predominate in an end sentence which struck a balance between these competing goals.

Although the violent nature of the offending subordinated the sentencing purposes of personal rehabilitation and reintegration, the Court of Appeal nevertheless accepted the 20 per cent discount awarded by the sentencing judge.[51]

Less than one year later, in Arona v R, the Court of Appeal again focussed on the seriousness of the offending, commenting that:[52]

Sentencing for some offences may be dominated by considerations such as denunciation, victim impact and community protection, reducing and perhaps eliminating any discount for culpability on cultural grounds.

In making this statement, the Court curiously cited Solicitor-General v Heta,[53] R v Rakuraku¸[54]and R v Eruera.[55] In all three of these cases, the sentencing judge placed significant weight on the cultural report and awarded the defendant a discount to recognise systemic deprivation.[56] In none of the cases did the sentencing judge conclude that the seriousness of the offending precluded a discount for cultural factors. Rather, in Heta, Whata J stated “recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it.”[57] This statement cuts directly against the Court of Appeal’s comments in Arona which appear to grant sentencing judges licence to refuse a sentencing discount to recognise systemic deprivation solely on the grounds that the offending was particularly serious.

Finally, and curiously again, the Court of Appeal in Hohua v R asserted that the potential mitigating effect of personal circumstances discussed in a cultural report “is not limited to particular types of offending.”[58] The Court provided no authority for the statement and made no reference to its previous contrary statements in Arona. Similarly, in Zhang v R, the Court also stated that “personal mitigating circumstances are applicable to all instances of Class A drug offending, as in any other offending” (author emphasis).[59] These statements appears to confirm that sentencing discounts to reflect systemic deprivation may be used in all types of offending, irrespective of its severity. The Court did go on to note, however, that where a person is sentenced for murder, the discretion available to the Court to award sentencing discounts will be constrained by s 104(1)(c) of the Sentencing Act 2002.

As a result, a divergence has emerged. On one hand, some sentencing judges have cited the passage from Arona or Keil and concluded that the offending was ‘too serious’ to allow a discount to recognise systemic deprivation grounds. Such an approach suggests that the seriousness of offending may constitute grounds to refuse to award a sentencing discount to recognise systemic deprivation, even if that deprivation had a causal link to the offending.

On the other hand, sentencing judges in a raft of other cases have awarded a discount for cultural factors despite extremely serious violent or sexual offending, for example:

  • T v R: Sexual violation; 33% discount (including discount for youth).[60]
  • Carroll v R: Wounding with intent to cause grievous bodily harm; 12.5% discount.[61]
  • R v Napia: Manslaughter; 35% discount (including discount for youth and remorse).[62]
  • R v Beattie: Manslaughter; 15% discount.[63]
  • R v Rakuraku: Murder; reduced minimum period of imprisonment by 12 months.[64]

Inconsistent results, as a result of these Court of Appeal cases, has caused defendants with similar backgrounds and offending to receive different discounts. Again, this divergence can be seen best by comparing two similar cases, which produced two very different results.

In R v Carr, the defendant carried out a spree of sophisticated robberies of commercial premises, primarily targeting Armourguard cash vans.[65] In total, Mr Carr took four cars, $280,000 in cash, and more than $50,000 in other property. In the course of these robberies, Mr Carr used a gun and committed various violent acts.[66] At sentencing, Downs J acknowledged that the defendant’s upbringing was “marred with poverty and violence within the home”. He suffered sexual abuse, left home when he was 12 or 13 and lived on the streets. The cultural report described the link between these experiences and the present offending, but Downs J was ultimately “not satisfied that there is sufficient linkage between [Mr Carr’s] offending and [his] background to warrant discount”. In refusing the discount, his Honour stating that systemic deprivation is:[67]

… likely to have only a modest effect on sentencing when the offending involves serious violence or serious sexual offending. Indeed, such factors may have little application, if any.

The exact same comments were made in R v Patangata (manslaughter)[68] and R v Duff (murder).[69] In making these observations, Downs J cited Keil v R and Solicitor-General v Heta, a curious citation as both cases involved serious violence but nevertheless resulted in significant discounts to reflect systemic deprivation. Indeed, in Keil, Harrison J, writing for the Court, stated “this is a case which underscores the importance of accounting for a particular offender’s personal, family, whānau, community, and cultural background during sentencing.”[70]

In Solicitor-General v Napia, Lang J took a different approach.[71] Mr Napia committed a number of offences, most notably residential burglaries, during a three-month period in late 2017. During the final burglary, Mr Napia violently assaulted both residents. Mr Napia’s cultural report painted a “depressing picture” and demonstrated a background of drug-abuse, absent parents, and neglect.[72] The District Court Judge identified a significant causal connection between the systemic deprivation and the offending and granted a 25 percent discount.[73] On appeal Lang J accepted that Mr Napia’s deprived upbringing now “effectively prevents him from making good decisions”.[74] However, his Honour concluded that the 25 percent discount was too great, reducing it to 15 percent.[75] Despite reducing Mr Napia’s sentencing discount, Lang J made no reference to the seriousness of the offending.

These cases illustrate a direct conflict in the approach taken by senior courts. In one line of cases sentencing judges are willing to limit or refuse discounts where the offence is particularly serious while, at the same time, another line of cases continues to award discounts for even the most serious offences. The reason for this inconsistency is unclear, although the comments of Sir Joe Williams may again be instructive. Speaking extra-judicially at the Harkness Henry Lecture in 2013, Sir Joe opined that “the discomfort with alternative approaches the further up the scale one gets is … if unconsciously, political rather than logical. Judges are very sensitive to potential community backlash”.[76] For some judges, awarding sentencing discounts may be particularly difficult in cases that involve extreme violence. In such cases, these judges may believe that the principles of denunciation and punishment take priority in the exercise of judgement. This is an understandable concern; however, it is not acceptable for inconsistency to result if some judges refuse such discount while others continue to allow them. To the extent possible, the approach that sentencing judges take should be consistent. It is not acceptable for two offenders who commit the same offences within a very similar factual matrix to have different mitigating tools available.

The Court of Appeal had the opportunity to provide this clarity in Napia v R.[77] Mr Napia sought leave to bring a second appeal against sentence, which required the Court to be satisfied that the appeal involved a matter of general or public importance or a miscarriage of justice may have occurred. Ms Ngapo-Lipscombe, appearing for Mr Napia, argued that the proposed appeal raised a matter of general or public importance, as it gave the Court a further “opportunity to discuss the significance of s 27 factors in sentencing and give guidance as to the information most likely to assist the sentencing court”.[78] Unfortunately, the Court refused the invitation, stating that there is “substantial guidance in existing authorities as to how an offender’s background may be relevant in sentencing”.[79] With respect, this evaluation does not sit well with the conflicting cases discussed in this article. Most notably, which Court of Appeal guidance should be followed: Arona or Hohua? That is to say, in cases involving particularly serious offending, is the effect of causal systemic deprivation “reduc[ed] and perhaps eliminat[ed]”[80] or, alternatively, are such discounts “not limited to particular types of offending”.[81] Unsurprisingly, sentencing judges are presently adopting both approaches, with the unfortunate result of having comparable offenders receiving different sentencing discounts.

More recent developments

One of the most difficult parts of writing this article was knowing when to stop. The jurisprudence around systemic deprivation is quickly evolving, as judges continue to grapple with these difficult issues. On the whole, the trend is positive. More than ever, judges are acknowledging that defendants come from different starting points. In order to meet the Court of Appeal’s recent call for “individualised sentencing”, it is necessary for sentencing judges to critically engage with the family, whānau, community, and cultural background of the defendant. A trio of recent cases illustrate this development.

First, in Henare v R, the Court of Appeal addressed the concept of whakamā, noting that in an “appropriate future case, the courts may be able to explore the possibility of treating whakamā as a unique mitigating factor when sentencing a Māori defendant.”[82] Second, in Harding v R, the defendant, a 40 year old male, was sentenced to 28 and a half years imprisonment for his role as the mastermind of a methamphetamine operation. On appeal, Goddard J recognised that such a sentence may be “tantamount to a life sentence”, given the life expectancy of Māori males, and therefore inappropriate.[83]  However, as in Henare, the Court did not substantively address this issue as it was not argued by counsel. Third, in Ellis v R, the Supreme Court requested submissions, and convened for a further hearing, on the extent to which tikanga principles, primarily concerning mana and redressing hara, were relevant after the appellant’s death. Judgment is awaited in that case.

The proper operation of section 27

The developments discussed in this article are welcome, but there remains room for improvement in the operation of s 27. Before exploring potential improvements, it is helpful to look to the past, in particular the original purpose of s 27’s predecessor, s 16 of the Criminal Justice Act 1985. Speaking in the House of Representatives, Dr Michael Cullen summarised the underlying purpose of s 16 as:[84]

… trying to meet the needs of Māori offenders and more particularly young Māori offenders who form such a disproportionately large element within the prison population and the population coming before the Courts, to the shame of us all.

As the then-Justice Minister Hon (now Sir) Geoffrey Palmer noted, the original focus was to allow offenders appearing for sentence to call a person to speak to the Court about the offender’s ethnic or cultural background and on the way in which that background related to the offence or may have assist in the prevention of re-offending.[85] Unfortunately, s 16 was rarely utilised and was ultimately replaced by s 27 of the Sentencing Act 2002. However, it remains for judges to use s 27 in a manner that best serves the underlying purpose outlined by Dr Cullen. At its core, the purpose of s 27 is to produce well informed decisions by putting the best available information before sentencing judges.

In cases where the offender faces a long period of imprisonment, s 27 can be used to allow a cultural consultant to interview the offender and prepare a cultural report. As discussed throughout this article, these reports can provide a deep historical and cultural analysis of the offender’s background and unearth evidence of systemic deprivation. However, such a practice does not necessarily align with the original intention of the section, illustrated by the comments made by Dr Michael Cullen and Sir Geoffrey Palmer, which envisioned whānau members speaking for themselves. Justice Venning addressed this point in R v Hone, noting that:[86]

... the structure of the [Sentencing] Act suggests that where cultural and family information is required to be provided in a formal report to the Court it is to be provided in the pre-sentence report called for and provided for under s 26. Section 27 prescribes quite a different and more informal process.

Such an interpretation leaves no scope for a sentencing judge to receive an independent cultural report. While this may match the original intention of s 16 of the Criminal Justice Act 1985, it is at odds with the the cases traversed throughout this article where judges have accepted and, in other cases, granted leave for the defence to prepare, independent cultural reports. As mentioned, the aim of s 27 is to produce well informed decisions by putting the best available information before sentencing judges. In many cases, where the offender’s systemic deprivation is complex, or the offender does not have an available whānau member, the preparation of a comprehensive and coherent cultural report will often be the most effective way for the sentencing judge to reach a well informed decision.

However, in cases where the offender faces a shorter period of imprisonment or a community-based sentence and an appropriate whānau member is available, s 27 can still operate effectively without a cultural report being prepared. The whānau member may speak or write to the court in an informal manner about the personal, whānau, and cultural background of the offender and how that background may have related to the offending. In both T v R[87] and Rakuraku v R,[88] the sentencing judges benefited greatly from letters provided by the offenders’ family members. In T v R, six family members wrote letters that were far more comprehensive than the “brief” PAC Report. These provided evidence of whānau support that suggested the appellant’s rehabilitative prospects were strong. This informal, yet incredibly effective, operation of s 27 should be common practice in all cases where the sentencing judge would benefit from such information. To facilitate this, family and whānau must be encouraged to contribute and, where desired, do so in their culture’s primary language. This ensures that s 27 is utilised across the criminal justice system, just as it was intended to do.

Conclusion

A lot has changed in the past two years. With newfound enthusiasm from the judiciary and the legal profession, s 27 is now being used to put vital information about the offender before judges and, therefore, s 27 reports can be at the forefront of sentencing decisions. The value in this information was best put by Whata J in Heta: “recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it.”[89]

Despite the positive shift, inconsistencies have emerged. First, although it is clear that a “causal nexus” is necessary, the extent to which judges are willing to critically engage with a s 27 report and draw available inferences has not been consistent. Although human agency and free will remain pillars of the criminal justice system, sentencing judges must recognise where the offender’s free will has been fettered by systemic deprivation, either directly experienced or inherited. Where this is the case, a sentencing discount is appropriate to recognise the reduced culpability.

Second, it remains unclear whether a sentencing discount to recognise systemic deprivation remains available in particularly serious cases. In some cases, the severity of the offending has been used as a justification to ignore otherwise relevant evidence of systemic deprivation. In others, with similar if not more serious offending, sentencing judges have continued to award sentencing discounts to recognise systemic deprivation. This has led to the unfortunate result of having comparable offenders receiving different sentencing discounts. As noted above, it is not acceptable for two offenders who undertake identical offending to have different mitigating tools used by sentencing judges. On this point, clear guidance from the appellate courts is needed.

Afterword

After this article was submitted for publication the Court of Appeal released its judgment in Carr v R [2020] NZCA 357. This was an appeal from the decision of Downs J in R v Carr [2019] NZHC 2335, which is discussed throughout this article.

The Court of Appeal referred to its earlier comments in Zhang v R (which was delivered after Downs J had sentenced Mr Carr), where the Court endorsed the reasoning of Whata J in Solicitor-General v Heta. The Court in Carr interpreted these comments to mean that:

… where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.

Turning to Mr Carr, the cultural report described a disadvantaged life commencing from when he was young. Although much of the deprivation described occurred when he was much younger, it was clear that “his early life contributed to the course his life subsequently took”. As the report gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, these matters needed to be considered at sentencing. The Court confirmed that it is not appropriate for sentencing judges to reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offender can be put on one side.

The Court reached this conclusion notwithstanding the seriousness of Mr Carr’s offending. Rather, the Court said that:

The focus of s 27 is on matter personal to the offender and while the gravity of the offending might temper the extent of any discount allowed for such considerations, that is a different proposition from saying there should be no allowance.

Applying this to Mr Carr, the Court concluded that a discount of 15 per cent was appropriate.

Notes

* Views expressed in this article are the author's own.

[1]           See: Judge Stephen O’Driscoll (2012) “A Powerful Mitigating Tool?” NZLJ 358; Tiana Epati, President-Elect of the New Zealand Law Society “Criminal law – cultural context and background in sentencing” (2018) November Māori LR (Hui-a-Tau Conference 2018, Te Hunga Roia Māori o Aotearoa, October 2018).

[2]           The number of reported cases where the sentencing judge referred to a “section 27 report” rose steadily from 2 in 2017, to 20 in 2018, and finally 37 in 2019.

[3]           Zhang v R [2019] NZCA 507.

[4]           R v Rigby [2019] NZHC 3378 at [18].

[5]           R v Patangata [2019] NZHC 744 at [45].

[6]           Zhang, above n 3, at [162].

[7]           At [155].

[8]           Solicitor-General v Heta [2018] NZHC 2453 at [40].

[9]           At [50].

[10]         See R v Archer [2019] NZHC 3146; R v Vea [2019] NZHC 1587; Su’e v R [2019] NZHC 2501; R v Bhaskaran (CA 333/02, 25 November 2002).

[11]         Zhang v R, above n 3, at [159]

[12]         Solicitor-General v Heta, above n 8, citing: Mason Durie Ngā Kāhui Pou: Launching Māori Futures (Huia Publishers, Wellington, 2003) at 62-66; Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending (Wai 2540, 2017) at 8.

[13]         At [50].

[14]         Sentencing Act 2002, s27(1).

[15]         Sentencing Act 2002, s27(5).

[16]         Fane v R [2015] NZCA 561 at 33.

[17]         Quote from Chester Burrows in: Leigh-Marama McLachlan “Pre-sentencing reports for offenders criticised by judges and lawyers” Radio New Zealand (online ed, New Zealand, 29 April 2019).

[18]         Green v Police [2019] NZHC 2565 at [28].

[19]         R v Kahia [2019] NZHC 1021 at [22].

[20]         R v Duff [2018] NZHC 2690 at [19].

[21]         R v Cullen [2019] NZHC 2088 at [58].

[22]         R v Karaitiana [2020] NZHC 91.

[23]         Māmari Stephens Waitoharuru Karaitiana: Section 27 Cultural Report (January 2020) (“Section 27 Report”) at 8

[24]         R v Karaitiana, above n 22, at [22].

[25]         At [36].

[26]         Mika v R [2013] NZCA 648.

[27]         Keil v R [2017] NZCA 563 at [58].

[28]         Arona v R [2018] NZCA 427.

[29]         Solicitor-General v Heta, above n 8.

[30]         At [15].

[31]         At [65].

[32]         At [64].

[33]         At [67].

[34]         R v Patangata [2019] NZHC 744.

[35]         At [4].

[36]         At [38].

[37]         At [41]-[46].

[38]         At [41]-[42].

[39]         At [43].

[40]         At [45].

[41]         At [46].

[42]         Hon Sir Joseph Williams, Justice of the New Zealand Supreme Court “Build a Bridge and Get Over It: The Role of Colonial Dispossession in Contemporary Indigenous Offending and What We Should Do About It” (Sir Robin Cooke Lecture 2019, Victoria University, Wellington, 4 December 2019).

[43]         R v Ruddelle [2020] NZHC 1983.

[44]         R v Carr [2019] NZHC 2335.

[45]         R v Duff [2018] NZHC 2690.

[46]         R v Te Poono [2020] NZHC 1188

[47]         At [35].

[48]         At [40]. As Mr Te Poono was convicted of murder, the statutory minimum of 10 years applied.

[49]         Keil v R, above n 27, at [58].

[50]         At [58].

[51]         At [57].

[52]         Arona v R, above n 28, at [61].

[53]         Although in Heta, above n 8, Whata J did state “the seriousness of the offending may necessarily reduce the scale of any discount for personal mitigating factors”, he then went on to accept a 30 per cent discount for causing grievous bodily harm with intent to cause grievous bodily harm.

[54]         R v Rakuraku [2014] NZHC 3270.

[55]         R v Eruera [2016] NZHC 532.

[56]         Solicitor-General v Heta; above n 8, Whata J awarded a 30% discount; R v Rakuraku, above n 54, Williams J reduced MPI by 12 months; R v Eruera, above n 55, the cultural report contributed to Whata J’s decision not to impose life without parole.

[57]         Solicitor-General v Heta; above n 8, at [66].

[58]         Hohua v R [2019] NZCA 533 at [44].

[59]         Zhang v R, above n 3, at [136].

[60]         T v R [2019] NZCA 13.

[61]         Carroll v R [2019] NZCA 172.

[62]         R v Nepia [2019] NZHC 1932.

[63]         R v Beattie [2019] NZHC 3108.

[64]         R v Rakuraku, above n 54.

[65]         R v Carr, above n 44.

[66]         At [5]-[17].

[67]         At [60];

[68]         R v Patangata, above n 34, at [44];

[69]         R v Duff, above n 45, at [23].

[70]         Keil v R, above n 27, at [57].

[71]         Solicitor-General v Napia [2019] NZHC 742.

[72]         At [32].

[73]         At [20].

[74]         At [37].

[75]         At [37].

[76]         Joseph Williams Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern NZ Law (2013) 21 Waikato Law Review 1 at 29.

[77]         Napia v R [2019] NZCA 618.

[78]         At [11].

[79]         At [14].

[80]         Arona v R, above n 28, at [61].

[81]         Hohua v R, above n 58, at [44].

[82]         Henare v R [2020] NZCA 188 at [24]-[26].

[83]         Harding v R [2020] NZCA 217 at [61].

[84]         (12 June 1985) 463 NZPD 4759.

[85]         See: (12 June 1985) 463 NZPD 4759 (the Honourable Geoffrey Palmer).

[86]         R v Hone [2018] NZHC 2605 at [7].

[87]         T v R [2019] NZCA 13.

[88]         R v Rakuraku, above n 54.

[89]         Solicitor-General v Heta, above n 8, at [66].

Author: Oliver Fredrickson

Oliver Fredrickson has recently completed an LLB(Hons)/BCom at Victoria University and works as a Clerk to the Chief District Court Judge Heemi Taumaunu. He can be contacted at oliver.fredrickson@justice.govt.nz. Views expressed are his own.