August 2021 Māori Law Review
Pūnaha whakawā – criminal justice – re-thinking systemic deprivation sentencing discounts
Oliver Fredrickson discusses how we might re-think sentencing discounts to reflect systemic deprivation in Aotearoa New Zealand.
Hei tīmatanga kōrero - Introduction
This article explores the evolution of sentencing discounts to reflect systemic deprivation in Aotearoa New Zealand (“systemic deprivation discounts”).[1] This is a relatively new development in our sentencing jurisprudence and one that was warmly welcomed. The pernicious effects of systemic deprivation play a major role in setting the course of an individual’s life and, in a variety of ways, can diminish their relative culpability for criminal offending they may commit. For this reason, sentencing outcomes ought to recognise that people come from different starting points and have different opportunities and choices available to them.[2]
Although this article focuses only on sentencing discounts, they are not the only way that information of systemic deprivation can be used in the sentencing process. Properly understanding and recognising the past systemic deprivation of an offender can also influence a judge’s decision on whether or not to award a non-custodial sentence, grant a s 106 discount, or impose a minimum period of imprisonment. In addition, if the sentencing judge demonstrates a nuanced and thoughtful understanding of the offender’s background and how it related to the offending, this in itself can help the offender feel as though they have been heard and understood. This, in turn, improves the procedural fairness of the sentencing process and goes some way towards restoring the mana and humanity of the offender.
Looking back and tracking the case law of systemic deprivation discounts, this article identifies the Court of Appeal’s decision in Fane v R as the source of two undesirable developments, which continue to cause issues and inconsistencies in sentencing courts.[3] These are:
- the requirement that the offender show a “causative link” between their systemic deprivation and their offending; and
- the practice of tempering the extent of a discount due to the seriousness of the offending, often to denounce the offender’s conduct or deter similar offending.
Since Fane, New Zealand courts have not provided clear guidance on either of these issues.
On the first, judges have adopted a range of terms including “causative link”,[4] “causal nexus”,[5] “demonstrative nexus”,[6] and “causative contribution”[7] without explaining whether there is a material difference between them. As a result, a divergence in approach and thus outcome has emerged.[8] The Court of Appeal took some steps towards addressing these inconsistencies in Carr v R, providing the most substantial appellate analysis of systemic deprivation discounts to date.[9] After canvassing the history of systemic deprivation discounts, the Court held that a discount should be available where the offender provides 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”.[10] Despite this reference to moral culpability, most sentencing courts have focussed on the causation element of this passage and continue to require a causative link between an offender’s history of deprivation and their offending. This article argues against a causation requirement. It argues that, rather than undertaking an artificial causation analysis, the fundamental assessment ought to be whether the offender’s systemic deprivation impacted their relative culpability. If so, the final sentence should reflect this. An inability to satisfy the court that a causal connection exists between their historical deprivation and the offending decades (if not generations) later should not disqualify the offender from a discount.
On the second issue, some judges have adopted the practice of tempering the quantum of an otherwise-justified discount to reflect systemic deprivation due to the seriousness of the particular offending. In Carr, the Court commented that the seriousness of the offending may not justify denying a discount, but it may “temper the extent of any discount allowed”.[11] This practice is inconsistent with the accepted sentencing methodology and the principle of individual justice. Further, it is not uniformly adopted across the judiciary, meaning that offenders with identical backgrounds who commit identical offending may receive different sentencing outcomes depending on the judge in front of them.
Earlier this year, the Supreme Court heard argument in a pair of appeals, Berkland v R and Harding v R.[12] The issues on appeal included whether the Court of Appeal in each case applied the correct approach to personal and mitigating factors, and in particular requiring a causal link between the defendants’ history of deprivation and their offending. This sets the stage for the Supreme Court to decisively addresses these issues.
Kōrerorero – Discussion
Systemic deprivation
The term “systemic deprivation” is used consistently throughout this article. In this context, it is a catch-all term which encapsulates the pervasive and persistent disadvantage that many offenders have suffered throughout their life.[13] It will often include a cocktail of experiences and hardship, such as: family instability or dysfunction; poverty; experiencing or witnessing family or intimate partner abuse (physical, psychological, or sexual); early exposure to drugs, alcohol, or gangs; inter-generational alcohol or drug abuse; inter-generational cultural dislocation or disconnection; exposure to the care and protection system (including time spent in foster care); an early exit from the education system and absence of formal qualifications.
Systemic deprivation is not limited to one ethnicity or culture. However, the unfortunate reality in Aotearoa is that Māori have suffered – and continue to suffer – significant and widespread systemic deprivation, largely as a result of colonisation. This process saw the loss of land and other natural resources, together with the destruction of traditional social structures, tikanga, culture, and language.[14] For every generation since, Māori have been disproportionately represented in negative statistics spanning across society. The following sobering statistics help illustrate this picture:
- The life expectancy for Māori is 6.5 years lower than non-Māori;[15]
- 57% of the current prison population muster is Māori;[16]
- 61% of all young people in Youth Court are Māori;[17]
- 59% of all children uplifted by Oranga Tamariki are Māori;[18]
- 69% of all children in state care are Māori.[19]
The experiences that constitute systemic deprivation strongly contribute to the course an individual’s life will eventually take. Exposure to these experiences can normalise certain criminal behaviours, introduce the offender to empirically proven triggers of criminal offending, and often place them in the “brutalised and traumatised company” of others who have shared the same experiences.[20] Research confirms, unsurprisingly, that systemic deprivation is associated with a higher risk of offending and that the less privileged background, the higher the risk.[21] Collectively, an offender’s systemic deprivation can restrict the choices and avenues available to the offender and thus their relative culpability for eventual criminal offending they may commit. As a result, it ought to have an effect on the sentencing outcome.
Systemic deprivation discounts in Aotearoa New Zealand
The history of systemic deprivation discounts in Aotearoa is relatively short. Only a few years ago, the personal, whānau, and cultural background of an offender had little effect on their final sentence. In effect, it did not matter whether the offender grew up in a household marred by drugs, alcohol, family violence, and gang affiliation or one filled with the privilege of social and economic stability. For the purposes of sentencing, their culpability was seen to be the same and, as a result, so was their sentence.
In recent years, the tide has turned exponentially. The following section will track this journey to help contextualise the current position. As with most things within sentencing jurisprudence, it must begin with the Sentencing Act 2002.
Sentencing Act 2002
The Sentencing Act originally sought to establish a “fair, firm and rational sentencing framework to deliver clarity and consistency to sentencing in New Zealand.”[22] To this end, it codified, for the first time, purposes and principles for judges to follow at sentencing.[23] These are outlined in ss 7 and 8 respectively.
Section 7 provides a number of purposes of sentencing. The purposes for which a court may sentence or otherwise deal with an offender are to:
(a) hold the offender accountable;
(b) promote a sense of responsibility for that harm;
(c) provide for the interests of the victim;
(d) provide reparation for harm done;
(e) denounce the conduct;
(f) deter the offender or other persons;
(g) protect the community from the offender;
(h) assist in the offender’s rehabilitation and reintegration.
These purposes are optional and many contradict one another. These contradictions illustrate Parliament’s understandable reluctance to adopt a predominant purpose of sentencing or even establish a hierarchy of sentencing goals.
Section 8 outlines a number of principles that the court must take into account when sentencing or otherwise dealing with an offender. Those relevant for the purposes of this article include:
(a) the gravity of the offending, including the degree of culpability of the offender;
(e) the desirability of consistency in respect of similar offenders committing similar offences in similar circumstances;
(h) any circumstances of the offender that mean that a sentence that would otherwise be appropriate would be disproportionately severe; and
(i) the offender’s personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.
Each of these principles may inform the appropriateness and quantum of a sentencing discount to reflect systemic deprivation.
Finally, s 27 acts as the vehicle through which this information about an offender’s history of systemic deprivation is brought before the court. At sentencing, an offender is entitled to call upon any person to speak about their personal, family, whānau, community, and cultural background and how that background may have related to the offending.[24] Although it does not require causation, it does establish that relatedness between the offender’s background and the commission of the particular offence is relevant. As discussed in depth below, this article argues that “causation” is not (and ought not to be) necessary to satisfy this relatedness. Rather, an offender’s background will relate to the offending where it diminished their relative culpability.
Judicial treatment
Despite the permissive wording of the Sentencing Act, discounts to reflect the offender’s history of deprivation were not generally awarded for the first ten years of its existence. It is difficult to identify exactly when the tide began to turn, as there was not a single decisive or watershed case. One useful starting point, however, is Mika v R.[25]
Relying only on authorities from Australia and Canada, Mr Mika argued that the sentencing judge should have taken into account the unique systemic factors behind Māori offenders appearing in court and that these factors justified a sentencing discount. The Court of Appeal rejected this argument, stating that:[26]
Parliament could not have intended that a standard discount based on ethnicity should be applied undiscerningly by courts irrespective of whether that factor related to the offender’s culpability for a particular crime.
As Mr Mika did not suggest that his Māori heritage diminished his blameworthiness or mitigated against his aggravating factors, a discount was not available. The Court contrasted his position with the case of R v Nathan, where a nexus between Māori heritage and culpability was established.[27] At no point did the Court suggest that an offender had to establish a causal nexus between their cultural background and the particular offending for which they were being sentenced. In fact, the Court appears to have rejected this position, stating:[28]
A judicial evaluation of an offender’s culpability is an essential element of the sentencing process without requiring … proof that ethnicity is causally linked to the particular offending.
The following year, in R v Rakuraku, Williams J insightfully discussed how, in some cases, there is a causative link between systemic deprivation and criminal offending.[29] In the following passage he said:[30]
Your anger and aggression is partly a factor of your personality and you made free choices in that regard. But it is also partly a response to the drivers I’ve discussed that aren’t of your making at all; to the way the world responds generally to Māori boys and men from poor backgrounds. We must be honest with ourselves about that. So it comes as no surprise to me that you sought security in the brutalised and traumatised company of those who share your experience and history – the Mongrel Mob. That shared experience has a terrible magnifying effect when it gathers in one place. To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today, and therefore in your own criminality.
Williams J commented that the success of Mr Rakuraku’s sister, who had attended boarding school on a scholarship, attested to the “causative impact” of his past on his eventual criminality.[31] Despite readily identifying a causative link between Mr Rakuraku’s background and his eventual criminal offending, Williams J did not suggest that all future offenders must prove such a link in order to gain a sentencing discount to recognise systemic deprivation.
The following year, the Court of Appeal released its decision in Fane v R.[32] Mr Fane pleaded guilty to causing grievous bodily harm after an argument with his father-in-law about the custody of his child.[33] He did not allege any systemic deprivation, but rather that his cultural and whānau background was a mitigating factor, either generally or under s 8(i) of the Sentencing Act.[34] In rejecting this argument, the Court went beyond the context of Mr Fane’s case and provided two statements of general principle, both of which have had a lasting and perhaps unintended impact.
First, the Court concluded that a discount was not available because a nexus between Mr Fane’s cultural background and his offending had not been established. This, in the Court’s opinion, meant that it could not mitigate his culpability for the offending.[35] Without acknowledging it was doing so, the Court departed from the approach taken in Mika, which focussed on whether an offender’s particular ethnicity or background related to their overall culpability. Instead, the Court introduced, for the first time, a positive requirement upon the offender that they demonstrate a causal nexus between their background and their offending.
Second, the Court held that a discount was nevertheless unavailable due to the serious nature of the offending.[36] Instead, the dominating purposes of the sentence were to: denounce and deter Mr Fane’s conduct, hold him accountable for his actions, and protect the community from such acts.[37] The Court offered no authority for this sweeping statement or any guidance as to when a case would be sufficiently serious so as to render irrelevant an offender’s background.
In the years following Fane, sentencing courts began to award systemic deprivation discounts with increasing frequency. The genesis for this development, to some degree, was the decision of Whata J in Solicitor-General v Heta.[38] Although it did not necessarily pave new ground, Whata J’s cogent exposition of the normative underpinnings for such discounts certainly grabbed attention. For the first time, Whata J comprehensively traversed the legislative history of s 27 of the Sentencing Act, the effects of colonisation and the consequent systemic disadvantage, and the relevant Australian and Canadian jurisprudence. His Honour accepted that “there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending”.[39] Applying this to Ms Heta, Whata J conducted an impressive and methodical analysis assessing how Ms Heta’s experiences of systemic deprivation were linked to her later offending.
After Heta, the frequency of sentencing discounts for systemic deprivation continued to increase. Over this period, the Court of Appeal revisited the matter on a number of occasions and broadly endorsed the approach taken in Heta. In Zhang, for example, a full Bench of the Court of Appeal said:[40]
… ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.
Nevertheless, discounts to recognise systemic deprivation continued to be awarded in an inconsistent manner. The source of these inconsistencies mirrors the reasoning in Fane.
First, in some cases, sentencing judges readily accepted that the offender had suffered systemic deprivation but nevertheless showed a reluctance (or perhaps inability) to identify a “causal nexus” between that deprivation and the offending.[41] One possible reason for this divergence could be that the clear and methodical analysis in Rakuraku and Heta set an unrealistic expectation for what constitutes a “causal nexus”. Reading those decisions, the link between the offender’s history of deprivation and their eventual offending seems obvious. However, this is only because Williams and Whata JJ’s experience and insight enabled their Honours to engage closely with the offender’s lived experiences and, aided by a te ao Māori lens, were able to identify and clearly articulate the linkages that existed. In other cases, sentencing courts cited Heta and Rakuraku while refusing to award sentencing discounts to offenders who had suffered similar systemic deprivation to the offenders in those cases.[42]
Second, some courts continued the approach set out in Fane and refused to award sentencing discounts to recognise systemic deprivation where the offending was “particularly serious”.[43] At the same time, however, others continued to award such discounts for even the most serious offending.[44]
Recently, the Court of Appeal attempted to address both of these inconsistencies in Carr v R.[45]
The current position – Carr v R
Mr Carr suffered extensive systemic deprivation from a young age. He grew up in poverty and suffered significant abuse at the hands of a family member. This led to him living on the streets at the age of 12 and becoming affiliated with a gang run by individuals much older than himself. He developed a severe drug addiction and became engaged with the criminal justice system soon after. This entrenched systemic deprivation caused Mr Carr to almost entirely disconnect with his Māori heritage.[46]
In the High Court, the sentencing judge acknowledged Mr Carr’s history of deprivation but refused to award a sentencing discount as his Honour was not satisfied that there was sufficient linkage between that deprivation and the offending.[47] In doing so, the Judge commented that: “[m]any people with disadvantaged backgrounds do not commit criminal offences, let alone very serious ones, and many law-abiding people remain so despite difficult lives.”[48] Further, his Honour said that an offender’s history of systemic deprivation will have “little application if any” when the offending is “serious”.[49]
On appeal, the Court of Appeal canvassed the relevant authorities – including Fane, Rakuraku, and Heta – and commented that:[50]
… 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.
The Court then addressed the two inconsistencies discussed above. First, it sought to clarify when an offender’s past systemic deprivation will justify a sentencing discount. The Court held that a discount will be available if the offender can show:[51]
… 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, of the kind envisaged in Zhang. Where that is shown, we consider it must have an effect on the sentencing outcome.
In this assessment, the Court said that the history of systemic deprivation need not be the “proximate” cause of the offending.[52]
Second, the Court addressed the relevance of systemic deprivation in relation to serious offending. The Court acknowledged that the gravity of the offending “might temper the extent of any discount” awarded to recognise systemic deprivation but stressed that that is a “different proposition from saying there should be no allowance”.[53] Thus, the gravity of the offending could justify the reduction of a sentencing discount but could not justify the refusal to award one altogether.
The stage is set
Earlier this year, the Supreme Court granted leave to hear a pair of appeals, Berkland v R and Harding v R.[54] In granting leave to appeal, the Court signaled its particular interest in hearing from the parties whether the Court of Appeal applied the correct approach in requiring Mr Berkland and Mr Harding to establish a causal link between their history of deprivation and the offending.
This provides an opportunity for the Supreme Court to provide clear guidance about systemic deprivation discounts. In particular, it can provide a definitive answer to the following questions:
- Should an offender be required to show a causal connection between their history of systemic deprivation and their eventual offending?
- Should a systemic deprivation discount be tempered in cases involving serious and premeditated violence and drug offending?
The following paragraphs will argue that both questions ought to be answer with “no”. Instead, it advocates for the following approach:
- Systemic deprivation discounts should be awarded if the offender’s history of systemic deprivation diminished their relative culpability for the relevant offending.
- Systemic deprivation discounts should not be tempered due to the seriousness of the offending.
The “causation” conundrum
On a number of occasions in recent times, the Court of Appeal has emphasised that sentencing must “achieve justice in individual cases”.[55] To this end, it remains an evaluative exercise and ought not to be conducted in a mechanistic way. Rather, the “ultimate question” at sentencing is whether the sentence provided is just in all the circumstances.[56]
Requiring an offender to draw a causal link between their offending and events that occurred decades (if not generations) earlier is an artificial and overly mechanistic assessment that is capable of producing sentences that are not just in all the circumstances. Further, the nebulous nature of this assessment means that it continues to be applied inconsistently. The following section will flesh out both of these claims and offer a revised assessment that asks whether the offender’s background of systemic deprivation diminished their culpability.
Uncertain and inconsistent application of Carr
In Carr, the Court of Appeal intended to clarify when a sentencing discount will be appropriate to reflect an offender’s history of systemic deprivation. Although the decision did provide a more refined test for this assessment, it has not resulted in a more consistent approach.
The decision ostensibly made an important shift, replacing the former “causal link” requirement with the phrase “causative contribution”. As a result, offenders need not identify a “causal link” between their history of systemic deprivation and their consequent offending. Instead, they must show that that deprivation had a “causative contribution”. Unfortunately, the Court does not explain whether this shift in language materially changes the necessary level of linkage that an offender is required to show. At first blush, one might assume that a “causative contribution” would require less linkage than a “causal nexus”. However, in earlier cases relating to discounts for addiction and mental health, appellate courts have used the terms “causation” and “contribution” interchangeably.[57] Further, the Court in Carr went on to say that the “causative contribution” ought to be “… of the kind envisaged in Zhang”.[58] However, the Court in Zhang used the phrase “demonstrative nexus”.[59] Given this reference, it is unclear whether a prospective offender must show a “causative contribution”, a “causal nexus”, or a “demonstrative nexus” or if there is even any difference between these terms.
In any event, it is difficult to discern a notable shift by sentencing courts since Carr. Although most sentencing judges now appropriately refer to the comments in Carr, there remains a divergence in how sentencing judges approach the causal link requirement.
Some sentencing and appellate courts have acknowledged the need for a causal link between deprivation and offending but instead appear to substitute that requirement for an assessment as to whether the deprivation influenced the offender’s culpability.[60] This is a preferable assessment, as will be discussed below, but it is not universally applied. One such example is Wilson v R.[61] Mr Wilson was found guilty of aggravated robbery after he and an accomplice conducted an armed home invasion with the intention of robbing the occupant of cannabis.[62] His background had many hallmarks of a systemically deprived upbringing, including: cultural disconnectedness, whānau dysfunction, violence, time spent in various foster homes, limited education, early entry into the criminal justice system, alcohol and other drug exposure and subsequent addiction, and gang exposure and subsequent affiliation.[63] Assessing the relevance of Mr Wilson’s systemic deprivation on the appropriate sentence, the Court of Appeal commented:
It is our view that Mr Wilson’s culpability for the offending is diminished by his background circumstances ... we accept that Mr Wilson’s background and the profound trauma he has suffered have severely limited his choices, distorted his values, impaired his decision-making and resulted in him coming under the negative influence of the Mongrel Mob gang.
Rather than using the causation-based language or attempting to draw a link between particular aspects of Mr Wilson’s background and eventual offending, the Court instead recognised that his systemic deprivation limited his choices, distorted his values and impaired his decision-making, and thus reduced his culpability.[64] This is a subtle but important distinction, as it allows an offender to obtain a sentencing discount without looking back decades (or generations) to draw a specific link between their history of systemic deprivation and their offending.
At the same time, other sentencing courts continue to search for a causative link, but show great willingness to make a range of inferences to identify a link.[65] For example, in Mau v R, the Court awarded a discount based only on Mr Mau’s pre-sentence report, stating:[66]
On the basis of the information available to us, we are prepared to infer the existence of a nexus between the offending and the significant economic and cultural deprivation Mr Mau reports having experienced during his upbringing.
These comments can be contrasted again with the approach taken in R v Jury.[67] Mr Jury was convicted of murder after an argument with a fellow member of the Mongrel Mob.[68] He was one of 22 children and had suffered “cultural dislocation, poverty,” and significant “traumatic physical and sexual abuse as a child and young person.”[69] Further, he was subjected to “cruel and grossly abusive treatment” within his family and “physical and sexual abuse while an inmate of an institution to which [he was] sent.”[70] Mr Jury argued that there was an “inferential nexus” between this background and his offending”. In response, the sentencing judge said:[71]
While the Court recognises the damaging and enduring effects of your traumatic childhood and the appalling abuses you have suffered, as having a significant effect upon your life choices and your gang membership, there is however no close causal connection between that background and your offending.
Rather than adopting the “causal contribution” standard proposed in Carr, the Court appears to have required Mr Jury to show a “close causal connection” between his background and his offending. Given the Court’s conclusion that there was no such connection, this appears to be inconsistent with the approaches taken in Wilson and Mau. Puzzlingly, the Court went on to comment that Mr Jury’s background would have justified a sentence discount in the case of a usual sentencing but, as it was a sentence for murder, that was not available.[72] It is difficult to reconcile this with the earlier finding that no “close causal connection” existed.
Similarly, in Keenan-Fry v R, the offender had served a custodial sentence at age 14, and was introduced to drugs and gangs at early age.[73] This caused him to disconnect entirely from his Māori culture. By the time of his offending – possession of firearms and methamphetamine and three driving charges – he was addicted to methamphetamine and a member of a gang. Although his offending was closely related to his addiction and gang affiliations, the judge concluded that there was “no clear causal link” and refused to give a discount.[74]
These cases provide a snapshot of the current state of play and illustrate the continued difficulty with the causation requirement. Given the inherent difficulties in drawing linkages between childhood (or even ancestral) experiences and adult offending, it has resulted in inconsistent application across similar cases.
Rethinking the “causative contribution” assessment
Putting the interpretive inconsistencies to one side, it remains unclear whether this focus on causation actually adds any value to the analysis. As noted above, the Court in Carr said that a sentencing discount will be appropriate where the offender’s deprivation might have “impaired choice and diminished moral culpability, so as to establish a causative contribution to offending” (emphasis added).[75] The wording of this test suggests that, if an offender can show that their history of systemic deprivation has impaired choice or diminished moral culpability, it follows that a causative contribution will necessarily exist. Read in this way, the “causative contribution” acts merely as an indicator to identify whether the offender’s systemic deprivation reduced their moral culpability. As discussed above, this is not how sentencing courts have applied the wording in Carr.
In most cases, the offender will provide evidence of historical systemic deprivation that occurred years, decades, or even generations before the offending took place.[76] Over that period, the threads of deprivation will have impacted the offender’s life in a multitude of ways; some obvious and others far more subtle. However, no matter how obvious the manifestations of systemic deprivation may be, it remains a difficult task for the offender to show that their systemic deprivation “caused” (or at least “causatively contributed” to) their offending. This imposes a stiff evidentiary burden onto the offender, as they must traverse back through their life history and attempt to draw indirect and often inferential linkages. The difficulty involved in this exercise is evidenced by the outcomes in Jury and Keenan-Fry discussed above.
The impact of this evidentiary burden is most pronounced in the District Court, where financial and resourcing constraints often prevent an offender from obtaining a cultural report. Instead, information about an offender’s systemic deprivation will often come directly from members of their whānau, community, or iwi.[77] This provides the court with valuable information to better inform the sentencing process. However, the causation requirement requires these individuals to undertake the difficult and somewhat amorphous task of explaining how the offender’s history of systemic deprivation “caused” or “causatively contributed” to the offending. In R v Ipeelee, the Canadian Supreme Court disposed of the causal requirement, concluding that the interconnections that occur over the course of an offender’s life are “simply too complex”.[78] Going further, the Court emphasised that the purpose of recognising systemic deprivation is not to explain or excuse the offending. Rather, it is to recognise the systemic background factors that may inform the relative moral culpability of the offender.
An undue focus on whether there was sufficient “causation” between offender’s history of systemic deprivation and their consequent offending ultimately distorts the sentencing analysis. Instead of analysing whether the offender’s history of systemic deprivation diminished their moral culpability, counsel (and indeed the court) often find themselves conducting intellectual acrobatics trying to prove or disprove that there was a “causal link” between the offender’s inter-generational deprivation and their eventual offending.
A focus on culpability instead?
The above paragraphs have discussed the inconsistent application of the “causative contribution” test outlined in Carr and cast doubt over its value when determining whether a sentencing discount is appropriate. This begs the question, why not dispense with this nebulous and superfluous “causative contribution” assessment and simply cut straight to the fundamental question: did the offender’s systemic deprivation influence their culpability for the offending?
Such an approach does not render irrelevant the existence (or extent) of a causative link. Rather, it means that the inability to draw a specific link should not disqualify an offender from obtaining a sentencing discount. This is the approach adopted by the Canadian Supreme Court in Ipeelee, where LeBel J held that:[79]
Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.
This article recommends that the same approach be adopted in Aotearoa New Zealand. If an offender has suffered from systemic deprivation which reduced their culpability for the offending, this ought to be reflected in the final sentence. To refuse to do so on the grounds that there was insufficient causation between the deprivation and the offending would be inconsistent with the principle of individual justice and would ultimately fail to produce a sentence that is “just in all the circumstances”.[80]
Discounts in serious and violent offending
As discounts to reflect systemic deprivation become more common, sentencing courts have voiced concerns about their application in particularly serious cases, especially those involving serious and premeditated violence or commercial drug dealing. Addressing these concerns, the Court of Appeal in Carr confirmed that, while the gravity of the offending could not eliminate the possibility of the court allowing sentencing discount to reflect systemic deprivation, it may still “temper the extent of any discount allowed for such considerations”.[81]
As a result of these concerns and the comments in Carr, some sentencing judges have adopted the practice of reducing the quantum of an otherwise justified sentencing discount due to the seriousness of the particular offending. This is unfortunate, as it appears to be inconsistent with sentencing methodology and the principle of individual justice. Worse still, it is not uniformly adopted, meaning that offenders with identical backgrounds who commit identical offending may receive different sentencing outcomes.
Inconsistent with sentencing methodology
In a number of cases, sentencing judges have reasoned that cultural factors will have a lesser effect on sentencing involving serious violence because of the need for “denunciation”, and “protection of the community”.[82] For example, in Nuku v R, the sentencing judge reduced Mr Nuku’s discount from 10 per cent to 5 per cent to recognise the need to protect the victim and society’s need to denounce repeat domestic violence.[83]
In Moses v R, the Court of Appeal outlined the correct approach to sentencing:[84]
Step one: Calculate the adjusted starting point, incorporating aggravating and mitigating features of the offence.
Step two: Incorporate all aggravating and mitigating factors personal to the offender, including any guilty plea discount.
It is difficult to see how reducing an offender’s systemic deprivation discount due to the seriousness of the offending is consistent with Moses, which requires the assessment of the seriousness of the offending to take place at step one. By tempering the available discount in this way, the court is using the seriousness of the offending to influence the quantum of a mitigating factor personal to the offender. It does not appear to comply with Moses for the court to refer to the seriousness of the offending at step two as a justification to reduce the extent of a sentencing discount that would have been available, but for the seriousness of the particular offending.
In addition, this tempering practice has not been adopted when awarding sentence discounts for other mitigating factors. In particular, untempered discounts remain available to reflect diminished culpability due to youth[85] and mental health[86] for even the most serious and violent offending. The courts have not provided a principled basis for this distinction. If the court accepts that a particular mitigating factor has diminished the defendant’s moral culpability, it is difficult to understand why one factor should be “tempered” due to the seriousness of the offending but not another.
Further, this approach rests on an unnatural interpretation of the Sentencing Act. Section 7(1) provides eight purposes for which the court may sentence or otherwise deal with an offender, including to “denounce the conduct” and to “deter the offender or other persons from committing the same or a similar offence”. It is clear in Nuku, for example, that the court reduced the offender’s discount for these purposes. However, s 8(1) states 10 principles of sentencing that the court must take into account at sentencing, including: the degree of culpability of the offender; the particular circumstances of the offender that means a particular sentence would be disproportionately severe; and the offender’s personal, whānau, and cultural background. Under this tempering approach, the court appropriately recognises these mandatory principles but then reduces their value by prioritising the need to denounce the conduct or deter the offender (or other persons). This appears to elevate the optional purposes in s 7 above the mandatory principles in s 8. As noted above, the appropriate place for recognising the seriousness of particular offending is when setting the starting point at step one of the sentencing process.
Inconsistent with individual justice
New Zealand courts have recognised the importance of individual justice in the sentencing process.[87] The principle of individual justice requires each sentence to be tailored to the particular offence and the particular offender. It follows that like cases should be treated alike but, importantly, if there are relevant differences, due allowances should be made for them.[88] As the saying goes, “there is no greater inequality than the equal treatment of unequals”.[89]
Reducing the quantum of an otherwise appropriate sentencing discount due to seriousness of the offending is inconsistent with the principle of individual justice. This can be illustrated through an example. Say two individuals commit identical offending, but one suffered from a history of systemic deprivation such that the judge deemed a 10 per cent discount to be appropriate to recognise their reduced relative culpability. However, like in Nuku or Davidson, the judge then tempered that discount and only awarded a 5 per cent discount. The effect of this temperance would be to insufficiently recognise the relative difference between the two offenders. Although one offender’s relatively lesser culpability justified a 10 per cent discount, the final sentence fails to reflect this. This result appears to offend s 8(e) of the Sentencing Act which requires the court to consider the general desirability of consistency with sentencing levels of similar offenders committing similar offences in similar circumstances.
Inconsistently applied
In Ipeelee, the Canadian Supreme Court cautioned that attempting to carve out an exception for systemic deprivation for “serious” offences inevitably leads to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be serious’”.[90]
In New Zealand, the courts (including the Court of Appeal in Carr) have failed to provide a general rule to identify when a case will be sufficiently serious so as to justify reducing a systemic deprivation discount. There is currently no legal test for determining whether certain offending was “particularly serious” and it is difficult to imagine what such a rule would look like. Would it be the particular offence (i.e. category 3 or 4) or the particular characteristics of the offending? Reviewing the cases, it is difficult to discern a consistent approach.
For example, in Kea v R,[91] Nuku v R,[92] and Williams v R[93] the court noted that the extent of the available discount was tempered and thus limited to 10 per cent because of the serious and premeditated nature of the offending (kidnapping, attempted murder, and aggravated robbery respectively). However, in R v Kingi,[94] R v Ruddle,[95] and R v A,[96] which involved kidnapping, manslaughter, and manslaughter, it was not. In each of the second trio of cases, the court granted a 15 per cent discount and made no suggestion that the seriousness of the offending had any tempering effect on that discount.
Perhaps most troubling is that in the cases where the discount is tempered, the court does not refer to other cases or explain why the seriousness of the particular case justified a tempering of the appropriate discount. Instead, in the cases mentioned above, the court simply pronounced that the seriousness of the offending tempered and limited the available discount as if it were a uniformly accepted and applied principle.
Kōrero whakamutunga – Conclusion
When the Supreme Court delivers its decision in Berkland and Harding, it will have the opportunity to determine conclusively the issues surrounding systemic deprivation discounts. As discussed, this article suggests that systemic deprivation discounts should be awarded if the offender’s history of systemic deprivation diminished their relative culpability for the relevant offending. If this is the case, the discount should not then be tempered due to the seriousness of the offending.
This framework would appropriately recognise the different starting points that defendants come from and the impact that this can have. A background of systemic deprivation (with features such as generational alcohol and drug abuse, familial criminal offending, and gang affiliation) can normalise violence, drug use, and criminal offending in the life and mindset of an individual.[97] This can lead them on a path towards criminal offending and deprive them of the resources and support necessary to correct course. As a consequence, they will frequently be placed in high-stress and hyper-criminalised situations where unstable and chaotic environments often impair their ability to constrain impulses. Collectively, these factors reduce their culpability relative to an individual who did not face this deprivation and made an uninhibited choice to offend. To reflect this, our sentencing process should ensure that a sentencing discount is available, and should not be withheld simply because the offender is unable to draw a “causative link” between the deprivation and their offending. Similarly, the quantum of the discount should not be reduced solely due to the seriousness of the offending. This should instead be recognised at stage one of the sentencing process when setting the starting point.
The aim of these developments is not solely to reduce the disproportionate incarceration rate of those who suffer systemic deprivation, as we must acknowledge that sentencing behaviours by courts are not a silver bullet. Sentencing is part of the wider societal context, with similar inequities present across the health, housing, and education sectors. As such, it should not be considered the sole – or even the primary – means of reducing over-incarceration. Nevertheless, that should not underplay the integral and uniquely direct role that sentencing judges play in affecting outcomes in the criminal justice system. Judges directly determine whether an individual will receive a custodial sentence (and for how long), or whether other sentencing options may be more appropriate.
For that reason, it is encouraging to see the recent judicial shift towards more individualised[98] and solution-focused justice.[99] The suggestions proposed in this article align naturally with these developments and help ensure that sentencing outcomes recognise the different culpability that offenders from different backgrounds may have.
Ngā kupu āpiti - Notes:
[1] I would like to thank Emily Blincoe and Māmari Stephens for their immensely useful comments reviewing earlier versions of this article. Views expressed are the author's own.
[2] Heemi Taumaunu, Chief District Court Judge, “Mai te po ki te ao mārama: the transition from night to the enlightened world” (Norris Ward McKinnon Lecture, University of Waikato, 11 November 2020) at 35.
[3] Fane v R [2015] NZCA 561.
[4] See: Wineera v R [2021] NZHC 900 at [34]; Miller v R [2021] 1104 at [39] and [46]; Mau v R [2021] NZHC 1290 at [20].
[5] See: Hammond v R [2021] NZHC 1064; James v R [2020] NZHC 2134.
[6] See: Zhang v R [2019] NZCA 507 at [162]; Campbell v R [2020] NZCA 631.
[7] See: Carr v R [2020] NZCA 357 at [65]; Cooper v R [2020] NZCA 510.
[8] See: Oliver Fredrickson “Systemic Deprivation Discounts and Section 27 Report: Progress but not Perfect” (2020) September Māori LR.
[9] Carr v R [2020] NZCA 357.
[10] At [65].
[11] At [65].
[12] Berkland v R [2020] NZSC 125; Harding v R [2020] NZSC 127.
[13] See the discussion in Solicitor-General v Heta [2018] NZHC 2453.
[14] At [40].
[15] Statistics New Zealand “Growth in life expectancy slows” (20 April 2021) Accessible at https://www.stats.govt.nz/news/growth-in-life-expectancy-slows.
[16] Department of Corrections “Prison Facts and Statistics - March 2021” (March 2021). Accessible at https://www.corrections.govt.nz/resources/statistics/quarterly_prison_statistics/prison_stats_march_2021.
[17] Ministry of Justice Child and Young People in Court: Data Notes and Trends for 2020 (2020) at 3. Accessible at: https://www.justice.govt.nz/assets/Documents/Publications/5apvjw-Children-and-young-people-data-notes-and-trends-dec20-v1.0.pdf.
[18] Ministry of Justice Improving outcomes for Tamariki Māori (2020) at 28. Accessible at: https://www.orangatamariki.govt.nz/assets/Uploads/About-us/Report-and-releases/Section-7AA-Report/S7AA-Improving-outcomes-for-tamariki-Māori.pdf.
[19] At 30.
[20] R v Rakuraku [2014] NZHC 3270.
[21] Susanne Alm and Felipe Estrada “Future Prospects, Deprivation, and Criminality – A Longitudinal Birth Cohort Study” (2018) 39:10 Deviant Behaviour 1280.
[22] Government of New Zealand Sentencing and Parole Reform Bill meets with approval (2001, Justice Matters) at 1.
[23] Julian Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002” ANZJ Crim 36 (2003) 249 at 254.
[24] Sentencing Act 2002, s 27(1)(a)-(b). The speaker may also talk about any processes have been tried to resolve underlying issues of the offending and how the offender’s support networks may help prevent future offending.
[25] Mika v R [2013] NZCA 648.
[26] At [10].
[27] At [11], citing R v Nathan (1989) 4 CRNZ 369. Like a number of other courts, the Court in Mika erroneously called this case Nishikata v Police HC Wellington AP 126-8/99, 22 July 1999. The reason for this widespread confusion is unknown.
[28] At [10].
[29] R v Rakuraku, above n 20.
[30] At [56]-[58].
[31] At [57].
[32] Fane v R, above n 3.
[33] At [1].
[34] At [43].
[35] At [46].
[36] At [45].
[37] At [45].
[38] Solicitor-General v Heta, above n 13.
[39] At [50].
[40] Zhang v R [2019] NZCA 507 at [157].
[41] See: R v Patangata [2019] NZHC 744; R v Carr [2019] NZHC 2335; R v Duff [2018] NZHC 2690.
[42] See: R v Patangata, above n 41; R v Carr, above n 41; R v Duff, above n 41.
[43] See: R v Arona [2018] NZCA 427;R v Patangata, above n 41; R v Carr, above n 41; R v Duff above n 41.
[44] See: Carroll v R [2019] NZCA 172; R v Nepia [2019] NZHC 1932; R v Beattie [2019] NZHC 3108.
[45] Carr v R [2020] NZCA 357.
[46] At [63].
[47] R v Carr, above n 41.
[48] At [61].
[49] At [60]-[62].
[50] Carr v R, above n 45, at [60].
[51] At [65].
[52] At [64].
[53] At [65].
[54] Berkland v R [2020] NZSC 125; Harding v R [2020] NZSC 127.
[55] See: Zhang v R, above n 40, at [48]; Orchard v R [2019] NZCA 529 at [28]; Crump v R [2020] NZCA 287 at [101].
[56] Moses v R [2020] NZCA 296 at [49].
[57] See: R v Jarden [2008] NZSC 69, (2008) 3 NZLR 6123; E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411.
[58] Carr v R, above n 45, at [65].
[59] Zhang v R, above n 40, at [162].
[60] This approach aligns with that originally outlined in Mika v R, above n 25.
[61] Wilson v R CA380/2019 (and appeal in Poi v R [2020] NZCA 312).
[62] At [2]-[5].
[63] At [34].
[64] At [36]. Similarly, in Clarke v R [2021] NZCA 96, the Court noted that Mr Clarke’s history of systemic deprivation had likely impacted his choices and diminished his moral culpability and then simply concluded that “We are therefore satisfied that the necessary causative link”.
[65] R v Kingi [2021] NZHC 140.
[66] Mau v R [2021] NZCA 106 at [33]. Albeit with less explicit language, the same approach was adopted in R v Asipnall-Su’a [2020] NZHC 3022.
[67] R v Jury [2020] NZHC 2618.
[68] At [1]-[5].
[69] At [54].
[70] At [54].
[71] At [56].
[72] At [56].
[73] Keenan-Fry v R [2021] NZHC 562.
[74] At [32].
[75] Carr v R, above n 45, at [65].
[76] See R v Karaitiana [2020] NZHC 91.
[77] See Oliver Fredrickson Getting the Most out of Section 27 of the Sentencing Act 2002 (2020) October Māori LR.
[78] R v Ipeelee (2012) SCC 13, [2012] 1 SCR 433 at [83].
[79] At [83].
[80] Moses v R, above n 56.
[81] Carr v R, above n 45, at [65].
[82] See, for example: Keil v R [2017] NZCA 563; Arona v R [2018] NZCA 427; Davidson v R [2020] NZCA 230; Nuku v R [2021] NZHC 410.
[83] Nuku v R, above n 82.
[84] Moses v R, above n 56, at [46]. Originally outlined in R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769.
[85] See: Churchwood v R [2011] NZCA 531. This involved the brutal and premeditated murder of a 78 year old woman.
[86] See: E (CA689/10) v R [2011] NZCA 13. This involved the manslaughter of a 13-month-old child.
[87] See: Singh v Police [2021] NZCA 91, (2021) 29 CRNZ 665.
[88] Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ) (emphasis added), citing Lowe v The Queen (1984) 154 CLR 606, 610 – 611.
[89] As noted in Dennis v United States (1950) 339 US 162, 184 per Frankfurter J.
[90] R v Ipeelee, above n 76, at [86], citing R Pelletier, “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001) 39 Osgoode Hall L.J. 469 at 479.
[91] R v Kea [2021] NZHC 2753.
[92] R v Nuku, above n 82.
[93] R v Williams [2020] NZHC 3104.
[94] R v Kingi [2021] NZHC 140.
[95] R v Ruddle [2020] NZHC 1983.
[96] R v A [2021] NZHC 502.
[97] R v Millwood [2012] NSWCCA 2 at [69].
[98] Zhang v R, above n 40; Orchard v R, above n 55; Crump v R, above n 55; Moses v R, above n 56.
[99] See: Heemi Taumaunu, Chief District Court Judge, “Mai te po ki te ao mārama: the transition from night to the enlightened world” (Norris Ward McKinnon Lecture, University of Waikato, 11 November 2020) at 35.
