May 2021 Māori Law Review
Pūnaha whakawā – criminal justice – the emergence of whakamā in the sentencing process
Oliver Fredrickson* and Stephen Woodwark# discuss how whakamā is incorporated into the criminal justice system's sentencing process.
Waiho mā te whakamā e patu!
Leave him alone he is punished by whakamā[1]
Hei tīmatanga - Introduction
Almost a decade ago, then-Chief Justice Elias stated, for the first time, that tikanga Māori principles form part of the values that underpin the New Zealand common law.[2] In the years since, tikanga principles have slowly begun to enter the fray, with legislators, judges, and practitioners all showing an increased willingness to engage with tikanga Māori principles. One such principle is whakamā, which can be broadly defined as a feeling akin to “shame” or “embarrassment”, although a more comprehensive and nuanced exploration of its definition is provided below.
The purpose of this article is to inform practitioners, judges, and the wider public about how whakamā may be relevant in the criminal justice system's sentencing process.
Kōrerorero - Discussion
Sentencing
In Moses v R, the Court of Appeal clarified the correct approach to sentencing. The Court outlined the following two-step methodology:[3]
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, together with any guilty plea discount. This is to be calculated as a percentage of the adjusted starting point.
In Henare v R, the Court of Appeal first discussed the role of whakamā in the sentencing process. Importantly, the Court noted that a future court may wish to explore the possibility of treating whakamā as a unique mitigating factor.[4]
Two recent cases demonstrate how this may be done. In Grace v R, the presence of whakamā contributed to the Judge’s assessment of Ms Grace’s remorse.[5] This necessitated a compassionate and rehabilitative approach to sentencing and justified a 20 per cent discount. In Police v Wikaira, the Judge had the benefit of comprehensive evidence about relevance of whakamā and how it affected the defendant.[6] This powerful evidence fundamentally altered the lens through which his Honour then determined the most appropriate sentencing outcome.
Whakamā
Whakamā is a notoriously difficult concept to define, and it is neither our place nor within our expertise to attempt to reach a definition ourselves. Instead, we will recite a number of definitions provided from a range of sources, remaining cognisant that there is not one universally accepted definition nor an exact equivalent in Western societies.[7]
At a high-level, most sources describe whakamā[8] as a feeling akin to “shame”, “embarrassment”, “shyness”, or “bashfulness”.[9] Taking this further, Kiri Dell notes that whakamā represents the feeling state in a person when “he or she has felt dishonoured in the eyes of others”, which leads to the sense of feeling “inferior, inadequate, diffident, and with self-doubt”.[10] This aligns with the comments of Joan Metge, who explains that whakamā is closely linked to the concept of mana.[11] A sense of whakamā will emerge where an individual has lost mana in the eyes of their peers. Similarly, just as mana can be accrued by a group, it can also be lost by a group, leading to a collective sense of whakamā.
More recently, Tainui Stephens (Te Rarawa, Ngāti Moetonga) powerfully described whakamā in the following way:[12]
Whakamā is not guilt for something you did, but humiliation for who you are. It’s a deep hit to the core of your being. You are inferior, disgraced, disadvantaged: and you know it. It has an acute memory.
Dr Tākirirangi Smith comments that whakamā is associated with an unsettling of mauri (life force) within a person, dissipating internal mā or energy and vitality, leading to outward expressions of withdrawal and feelings of pouritanga.[13] For an individual who has been charged with criminal offending, the impact of whakamā may result in withdrawal of communication with others or a resistance to engage in rehabilitative programmes. Without a proper understanding of whakamā, this frozen and unresponsive appearance can be interpreted as active disengagement and have significant adverse consequences for that individual.[14] For example, they will likely: forgo the opportunity to receive rehabilitative treatment at the first instance; fail to receive a sentencing discount for “rehabilitative steps taken”, good character, or remorse; and have their feelings of whakamā exacerbated by going through the entire court process as a passive spectator.
Like most aspects of tikanga Māori, whakamā played essentially no role in the criminal law until very recently. However, in the past year, all courts within the criminal jurisdiction have now recognised the relevance of whakamā in the sentencing process.
Judicial treatment of whakamā
Henare v R
Mr Henare was found guilty of theft by a person in a special relationship, having stolen $1,083,893.30 from the Pārengarenga 3G Trust, of which he was a trustee. In the High Court, Muir J sentenced him to five years and two months’ imprisonment.[15]
Mr Henare appealed the sentence, arguing that Muir J did not sufficiently recognise the impact of whakamā on Mr Henare and his wider whānau. In support of this argument, Mr Henare pointed to the comments made by his daughter to the writer of the report prepared under s 27 of the Sentencing Act 2002:[16]
This is the thing that is hurting me. If my father passed I wouldn’t know where to take him. I wouldn’t know who to call. He has been outcast and it has been put publicly. It is not just about him, it is about us. How do we even go there? Our mana has been stripped, our tikanga value is gone … We as a whānau, we are broken.
The Court acknowledged that while whakamā may involve elements of shame, it may also engage “broader concepts that reflect upon the mana, not just of Mr Henare, but his whānau.”[17] However, neither the author of the s 27 report nor anyone else provided any guidance on what whakamā actually entailed in the context of this case or what, if any, recognition could be properly given to this factor in Mr Henare’s circumstances.[18] As such, the Court dismissed the appeal. Importantly, however, it noted 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.[19]
Mr Henare appealed to the Supreme Court. Although the Court accepted that the relevance and potential effect of whakamā in sentencing is a matter of general or public importance,[20] it denied leave as Mr Henare was “unable to demonstrate any evidential basis” that he was impacted by whakamā.[21]
Although Mr Henare did not receive a discount to recognise whakamā, the comments made by the Court of Appeal certainly pave the way for future cases. Most notably, the Court did not simply see whakamā as an alternative manifestation of remorse, but rather as a “unique mitigating factor” in its own right.[22] Two recent decisions, each with similarly tragic facts, provide an example of how the court may use whakamā to reach a more appropriate sentence.
R v Grace
Ms Grace fell asleep while driving from Ruatoria to Gisborne, causing her car to veer off the road and crash into a grass culvert.[23] The vehicle landed on top of her son, who sadly died at the scene. Ms Grace was disqualified from driving at the time and her blood alcohol level exceeded the legal driving limit.
A number of reports were prepared on behalf of Ms Grace, including: a s 27 cultural report, a report by Ms Grace’s social worker, and a report prepared by a member of Ms Grace’s iwi who was acting as a mentor. The s 27 report outlined a long history of abuse and trauma, both physical and mental.[24] Ms Grace felt “deep shame” because she was driving to Gisborne at the time of the crash for the purpose of seeing her abusive ex-partner who had caused much of the physical and mental trauma.[25]
At sentencing, Dobson J began by noting that “uppermost in my mind in assessing the matter is that whatever sentence I impose will be less weighty than knowing you caused the death of Tipene”.[26] To this end, his Honour acknowledged that the cultural report referred to whakamā, “being something more than a deep sense of shame and extending to embarrassment for your whānau and uncertainty about your place within your whānau”.[27]
Through this lens, Ms Grace’s circumstances warranted a compassionate and rehabilitative rather than a punitive sentencing approach. Thus, a 20 per cent discount was considered appropriate to reflect the remorse and ongoing grief associated with whakamā, which was described as “difficult a punishment as any the Court could impose”. Having concluded that a short-term sentence of imprisonment was available, his Honour went on to consider that home detention would be sufficient to satisfy sentencing principles and would make the most of rehabilitative prospects.[28]
Though Dobson J did not treat whakamā as a unique mitigating factor, it certainly contributed to the significant discount for remorse and the lens through which his Honour reached the final sentence. This latter point is important as, unlike other mitigating factors, recognition of whakamā need not always result in a discrete sentencing discount. Rather, a proper understanding of whakamā and its impact can colour the sentencing judge’s perception of the defendant and, as a result, more accurately impose a sentence that is a just one in all the circumstances.[29] This can be seen in the approach taken by Judge Davis in Police v Wikaira.[30]
Police v Wikaira
Ms Wikaira was driving in the Northland region when she momentarily took her focus from driving and looked into the back of the vehicle. She lost control of the vehicle, which crashed into a bank head-on. Her daughter passed away as a result of the accident. As alcohol and cannabis were detected in Ms Wikaira’s blood content, she was charged with carelessly driving a vehicle causing death while under the influence of drink or drugs.[31]
Ms Wikaira pleaded guilty and was granted entry into the Matariki Court in Kaikohe.[32] As Ms Wikaira progressed through the Court, concerns arose about her willingness to engage in the programmes that had been prepared for her. However, once Ms Wikaira returned in the new year, it was clear that she had fully engaged with the programmes. She explained that her lack (or perhaps perceived lack) of prior engagement was because she was still mourning the recent death of her daughter. Given her positive steps towards rehabilitation, Ms Wikaira then made an application to be discharged without conviction under s 106 of the Sentencing Act.
Judge Davis considered the offending to be in the moderate range of offending under s 61 of the Land Transport Act 1998. His Honour then turned to the impact that a conviction would have on Ms Wikaira’s prospects of becoming a teacher and the effect of whakamā. For the purposes of this article, it is necessary to focus only on the latter.
Judge Davis had the benefit of receiving comprehensive evidence from Ms Sarich, the tūmuaki (principal) of the Kohanga Reo employing Ms Wikaira, about the impact of whakamā and how it applied to Ms Wikaira.[33] She powerfully described the impact of whakamā in the following way:
It is difficult to peel away the many layers of what whakamā is, …. the regret, the shame, the embarrassment, the depression, the feeling of dishonouring others, the judgement, the absolute feeling of self doubt, and worthlessness, those are all naked to the human eye. Just because we can’t see them, does not mean they aren’t a struggle that greets Marino on a daily basis.
Applied to Ms Wikaira, she went on to say:
[Ms Wikaira] lives with one regret, the choice she made to drive her car after partying the night before, this choice took [her daughter]’s life. No matter how many times [she] lives that moment, it can never change the tragedy of what happened. [Ms Wikaira]’s reality is that she will live with this regret for the rest of her life.
This one regret she has is being laid open for all to see. It has exposed the truth. It has led her to this Court of law, it also led her to the Court of public opinion. Regardless of the outcome today, regardless of the sentence, [Ms Wikaira] will receive the jury of public opinion, will continue to scrutinise [her] every move forevermore. That is whakamā.
This one regret and this life long imposed scrutiny from the Court of public opinion is what we call whakamā.
She also described how whakamā manifests in a variety of ways. The loneliness on daily basis, “searching for her baby, in a sea of faces”, was whakamā. The search for accountability and the constant burden of judgement by others was whakamā. The shame knowing that her daughter’s life was taken was whakamā.[34] In this case, as in many cases, the whakamā felt by Ms Wikaira resulted in her being reluctant to engage with the court process or rehabilitative programmes. Without recognising the effect of whakamā, it would be easy for any lawyer or judge to confuse this with apathy.
However, Ms Sarich informed Judge Davis that whakamā was a veil that Ms Wikaira must wear every day, and a conviction would tether her to that whakamā.[35] This extraordinary burden of losing a child and carrying the weight of whakamā was such that adding a conviction and its associated consequences was out of all proportion with the gravity of the offending.[36] In reaching this conclusion, Judge Davis expressly noted that it would be rare for the same circumstances and degree of information to be available to the court.[37]
Ngā tākupu - Comment
This trio of cases has now laid the foundation for whakamā to be a recognised feature of the sentencing process. However, the specific details of how that will look remain to be seen. On the one hand, whakamā could act as a traditional mitigating factor, such as addiction or systemic deprivation, which would lead to a mathematical discount to the starting point. However, given the breadth of ways that whakamā can manifest and affect a defendant, it could also be used as a lens through which the sentencing judge determines the most appropriate outcome in all the circumstances. How whakamā is best recognised in the sentencing process is a difficult decision that will certainly come squarely before the courts in due course.
The courts must also decide how evidence of whakamā will be brought before the court and when it will affect the appropriate sentence. Wikaira sheds some light on the former question. In that case, Judge Davis had the enormous benefit of hearing from Ms Sarich, who gave evidence under s 27 of the Sentencing Act and informed the court about the relevance of whakamā and how it was affecting the defendant. In similar cases, this information could be included in a Provision of Advice to the Court (PAC) Report. To ensure that such evidence is routinely before the court, it is incumbent upon counsel, probation officers, and judges to be aware of the impact of whakamā and how it may influence the appropriate outcome. This is firmly in line with the Te Ao Mārama kaupapa of the District Court, which seeks to provide judges with the “best available information to assist them to make well-informed decisions about the people who appear before them.”[38]
As to the latter question, it remains unclear exactly when the presence and impact of whakamā will justify a sentencing discount or an otherwise more lenient sentence. In Henare, both appellate courts rejected Mr Henare’s appeal as he was "unable to demonstrate any evidential basis” that he was in “a state of whakamā". As Mr Henare failed this initial hurdle, it remains unclear what follows if a defendant can provide evidence of whakamā. Will evidence of whakamā alone justify a more lenient sentence? Or will the defendant also have to show that, as a result of the whakamā, the sentence proposed will be disproportionately severe?[39] Either way, sentencing judges will be required to make these important but difficult assessments.
However the courts wish to proceed, the calls for individualised sentences should be front of mind. Above all else, sentencing remains an evaluative exercise and the “ultimate question” is whether the sentence is a just one in all the circumstances.[40] In cases where the defendant is in a state of whakamā, a just sentence will occur if the court understands the concept of whakamā, how it is affecting the defendant, and how it will inform the appropriate sentencing outcome.
Ngā kupu āpiti - Notes:
* Oliver Fredrickson holds an LLB(Hons)/BCom from Te Herenga Waka | Victoria University of Wellington 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.
# Stephen Woodwark holds an LLB/BA from Te Herenga Waka | Victoria University of Wellington and works as a Clerk to the Chief District Court Judge Heemi Taumaunu. He can be contacted at stephen.woodwark@justice.govt.
[1] Hirini Moko Mead and Neil Grove Ngā Pēpeha a ngā Tipuna (Victoria University Press, Wellington, 2004) at 25. A use of this whakatauki attributed to Te Tahi was recorded in Elsdon Best's Maori Religion and Mythology (Part 2) <http://nzetc.victoria.ac.nz/tm/scholarly/tei-Bes02Reli-t1-body-d4-d6-d2.html> accessed April 2021.
[2] Takamore v Clarke [2012] NZSC 116 at [94].
[3] Moses v R [2020] NZCA 296 at [46].
[4] Henare v R [2020] NZCA 188 at [25].
[5] R v Grace [2020] NZHC 3145
[6] Police v Wikaira [2019] NZDC 17641.
[7] Perminder Sachdev “Whakamā: Culturally determined behaviour in New Zealand Māori” (1990) 20(2) 433 at 434.
[8] The word whakamā is derived from the te reo Maori root word of “mā” meaning “white or pale”, and the causative prefix “whaka” which when attached to an adjective signifies a beginning of, or approach to, the condition indicated. See Perminder Sachdev, above n 70, at 434.
[9] P M Ryan The Raupo Pocket Dictionary of Modern Māori (2nd ed, Penguin Group, 2009) at 159; David (Rāwiri) Junior Waretini-Karena “Transforming Māori Experience Experiences of Historical Intergenerational Trauma” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, April 2014) at 187.
[10] Kiri Dell “The Great Māori Shame Legacy” (17 July 2016) Kupumamae < https://kupumamae.com/2016/07/17/the-great-maori-shame-legacy/> Accessed: 7 January 2021.
[11] Joan Metge In and Out of Touch: Whakamaa in Cross Cultural Context (Victoria University Press, Wellington, 1986) at 25.
[12] Tainui Stephens “Whakamā: Fighting the taniwha of shame” (13 July 2020) The Spinoff <thespinoff.co.nz>.
[13] Karis Knight “From Whakamā to Whakamā: He aha tēnei?” (2019) 11 Psychology Today 134 at 136.
[14] Joan Metge, above n 11, at 25.
[15] R v Henare [2020] NZHC 2126.
[16] Henare v R, above n 4,at [24]. That being a report prepared pursuant to s 27 of the Sentencing Act 2002.
[17] At [25].
[18] At [26].
[19] At [26].
[20] Henare v R [2020] NZSC 96 at [13], citing Senior Courts Act 2016, s 74(2)(a).
[21] At [15].
[22] Henare, above n 4, at [26].
[23] R v Grace [2020] NZHC 3145 at [2].
[24] At [16].
[25] At [17].
[26] At [1].
[27] At [18].
[28] At [24].
[29] Described by the Court of Appeal as the “ultimate question” at sentencing. See Moses v R [2020] NZCA 296 at [49].
[30] Police v Wikaira [2019] NZDC 17641.
[31] Land Transport Act 1998, s 62(1). Although alcohol use was a necessary element of the charge, his Honour concluded at [45] that it could not be taken as causative of the offending on the evidence available.
[32] The Matariki Court is a specialist court operating in Kaikohe District Court. The Matariki Court brings the offender’s iwi, hapū and whānau to the forefront of the process. Through the s 27 provisions, a chosen cultural speaker may inform the court about the offender’s community and cultural background, as it relates to the offending and available rehabilitation support. In this way, cultural reports offer sentencing judges a fuller picture of all the circumstances affecting an offender. In order to enter the Matariki Court, an offender must plead guilty and demonstrate a commitment to addressing the drivers of their offending.
[33] Police, above n 30, at [58].
[34] At [61].
[35] At [62].
[36] At [77].
[37] At [78].
[38] 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, Waikato University, 11 November 2020) at 2. Available: https://www.districtcourts.govt.nz/assets/Uploads/Publications/2020/Norris-Ward-McKinnon-Annual-Lecture-2020-Mai-te-Po-ki-te-Ao-Marama.pdf.
[39] As with defendants who are foreign nationals or suffer from addiction issues. See: R v Zhang [2019] NZCA 507 and R v Fangupo [2019] NZHC 2896 respectively.
[40] Moses v R [2020] NZCA 296 at [49]. See also Zhang v R [2019] NZCA 507 at [48]; Orchard v R [2019] NZCA 529 at [28]; Crump v R [2020] NZCA 287 at [101].
