Whakataunga – Overview

In December 2022, the Supreme Court released its decision in Berkland v R. This decision combined two separate appeals and considered a range of sentencing issues – a topic rarely addressed by Aotearoa’s highest court.^[1]

Although both appeals involved methamphetamine offending, the Court made clear from the outset it did not wish to conduct a “wholesale re-litigation” of the Court of Appeal’s decision in Zhang v R.^[2] Rather, it was “particularly interested” in determining the proper method for assessing:

1. culpability for manufacturing methamphetamine; and
2. the mitigatory relevance of the offender’s personal background.

This article focusses on the second issue. It provides a summary of the Supreme Court’s decision and offers some general observations. Given the focus of my earlier writings in the Māori Law Review, this article places particular focus on sentencing discounts for social, cultural, and economic factors.^[3]

Kōrerorero – Discussion

Before Berkland, sentencing courts treated different aspects of a defendant’s background differently. One legal standard would be applied for a defendant’s mental health, another for addiction, and another still for deprivation. As the Supreme Court recognised, failing to articulate or apply a uniform standard in this manner risks “inconsistency in the application of the purposes and principles of sentencing”.^[4] To mitigate this risk, the Court clarified the appropriate standard for determining the mitigatory relevance of the offender’s personal background.

After Berkland, a defendant’s background will justify a sentencing discount if it has a “causative contribution” to the particular offending.^[5] This is less exacting than the “operative or proximate cause” standard and captures the “more diffuse drivers or the intergenerational sources of offending”.^[6] A defendant’s background factors will constitute a “causative contribution” where they “help to explain how the offender came to offend.”^[7]

Going forward, this final passage should guide both practitioners and judges. Rather than searching for an artificial “causal link”, the focus should instead be on whether the offender’s background “helps to explain” how they came to offend.

Discounts for social, cultural and economic factors – A brief history

The history of systemic deprivation discounts in Aotearoa is still brief. Just a decade ago, an offender’s social, cultural, and economic background had little effect on their final sentence. Things have changed incrementally but significantly since then.

In R v Rakuraku, Williams J (who later wrote the Supreme Court’s decision in Berkland) discussed the link between deprivation and criminal offending. Importantly, he did not attempt to draw a direct causative link between Mr Rakuraku’s deprived upbringing and his offending. Rather, he discussed how “the world responds generally to Māori boys and men from poor backgrounds” contributed to Mr Rakuraku’s decision to seek “security in the brutalised and traumatised company” of the Mongrel Mob.^[8] To deny that as “a contributing factor would be to deny that race and history have any part to play in Māori criminality generally” and in Mr Rakuraku’s own criminality.^[9]

Four years later, Whata J’s delivered his landmark decision in Solicitor-General v Heta.^[10] Although it did not necessarily pave new ground, it was highly influential. For the first time, Whata J comprehensively traversed the legislative history of s 27 of the Sentencing Act 2002, the effects of colonisation and consequent systemic disadvantage, and the relevant Australian and Canadian jurisprudence.^[11]

After Heta, the frequency of sentencing discounts to recognise deprivation became increasingly common. Over this period, the Court of Appeal addressed the matter on several occasions and broadly endorsed the approach taken in Heta. In Zhang, for example, a full Bench of the Court of Appeal said:^[12]

… 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.

But sentencing judges failed to identify and apply a consistent standard. Indeed, they adopted a range of terms including “causative link”,^[13] “causal nexus”,^[14] “demonstrative nexus”,^[15] and “causative contribution”^[16] without explaining whether there is a material difference between them.

In Carr v R, the Permanent Bench of the Court of Appeal acknowledged these inconsistencies and attempted to articulate a consistent standard. The Court held that a discount will be available if the offender could show “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…”.^[17]

A few months later, in Waikato-Tuhega v R, the Court of Appeal provided further guidance about how this standard be applied.^[18] It emphasised that there need not be “extensive evidence” of a nexus between offending and socio-economic and cultural disadvantage because there is:^[19]

ample case law, research and reports about how indigenous dispossession of land and culture and the disconnection between whānau, whakapapa and culture caused by colonisation can be a causative factor in offending.

This background is often “augmented” by other factors such as “alcohol and drug use at an early age” and disconnection.^[20] In short, the assessment should “not be a mechanical exercise with a high threshold of proof” but an “overall assessment” of how personal circumstances might have contributed to culpability or offending.^[21]

Berkland v R and Harding v R

William Berkland and Brownie Harding were both convicted on unrelated charges of methamphetamine offending. In the High Court, they received sentences of 13 years and 3 months and 28 years and 6 months respectively.^[22] Both appealed their sentences. The Court of Appeal reduced Mr Berkland’s sentence to 12 years and 9 months and upheld Mr Harding’s sentence.

To the surprise of many, the Supreme Court granted leave in November 2020. As noted above, the Court signalled its interest in determining the proper method for assessing:

1. culpability for manufacturing methamphetamine; and
2. the mitigatory relevance of the offender’s personal background.

This article focusses on the second issue. The following paragraphs will track the Courts discussion about: individualised justice, s 27 of the Sentencing Act 2002, and sentencing discounts to recognise an offender’s background.

Individualised justice

In recent years, the Court of Appeal has consistently embraced the principle of individualised justice. It has emphasised that sentencing is an evaluative exercise and cautioned against an overly mechanical or mathematical approach.^[23]

The Supreme Court reinforced this in Berkland, commenting that “the statutory purposes, principles, and factors” of sentencing requires judges to “dispense individualised justice.”^[24]

Contrary to the views of some critics,^[25] individualised justice is not in conflict with sentencing consistency. Properly understood, it helps ensure it.^[26] Sentencing consistency requires that sentencing decisions reflect a “careful evaluation of the circumstances of the offending and of the offender.”^[27] As the Supreme Court recognised in Berkland, assessing culpability is “not just a matter of establishing what the offender did” it must also be assessed by “reference to the offender.”^[28]

This is confirmed by s 8(3) of the Sentencing Act 2002, which states that “similar offenders committing similar offences in similar circumstances” should receive similar treatment. To ensure this, the sentencing judge must have a comprehensive understanding about the individual offender before them. As the Supreme Court rightly said: the “better the information, the better equipped the judge will be” to assess the most appropriate sentencing outcome.^[29]

In Aotearoa, ss 25-27 of the Sentencing Act 2002 are the “key infrastructure” to assist the court in obtaining this information. Given the context in Berkland, the Court focussed primarily on s 27.

Section 27 of the Sentencing Act 2002

In recent years, s 27 of the Sentencing Act 2002 has developed into an important tool for bringing information about the personal, whānau, community, and cultural background of offenders before the court. It is a “sophisticated provision” with three core elements: court-community engagement; obtaining relevant background information about the offender; and identifying community resources relevant to sentence.^[30]

The application of s 27 may come through informal or formal reports. Informal interventions include “oral comments from the body of the court, or a letter provided by a member of the offender’s family, whānau or community and spoken to at court”.^[31] Reports are written by “individuals from within the offender’s community or from a writer with expertise in criminal justice, but who is otherwise unrelated to the offender or their community.”^[32]

Guidance for section 27 reports

A primary purpose of s 27 reports is to “assist the judge in deciding whether the causative contribution is established”.^[33] Although the drafters of s 27 originally envisaged an informal process, this seldom occurs.^[34] Instead, a practice has emerged whereby independent report writers prepare formal reports canvassing the background of the offender. This is generally a positive development, as these reports often unearth highly relevant information that would otherwise never make it to the judge. However, some commentators (including judges) have criticised that these reports can sometimes be overly generalised and lengthy, which can waste the courts’ time and resources.

Recognising this, the Court in Berkland provided valuable guidance for report writers, suggesting that reports must be “case and offender focussed”^[35] and should include the following material:^[36]

1. the writer’s knowledge of the offender’s background and their offending;
2. the extent of their engagement with the offender and their family or whānau for the purposes of compiling the report, and whether the report is supported by the family or whānau;
3. the specific background of the offender including socio-economic context, educational qualifications and cultural context — if Māori, the offender’s marae, hapū and iwi and extent of connection with them (if the offender does not know, the report writer should find out through their own networks);
4. family or whānau history, including economic, cultural and social circumstances;
5. any relevant comments or insights about the offender’s circumstances and the drivers of their offending provided by family, whānau or wider community spokespeople;
6. information about relevant historical sources of offending which may help establish a causative contribution to the offending, for example, if the offender is Māori, a summary of the colonial experience of their iwi. As we have said, this can be obtained without unnecessary difficulty from treaty settlement deeds, Waitangi Tribunal reports, kaumātua or iwi organisations; and
7. details of consultation with the offender’s community, including relevant community organisations and any proposals they may have in relation to achieving sentencing purposes such as rehabilitation or reintegration, or to assist the Court in any other way in arriving at a just sentence.

Sentencing discounts to recognise an offenders’ background

Before Berkland, the legal standard for determining whether a sentencing discount was appropriate differed depending on the particular aspect of the offenders’ background. For example, if the offender’s background of deprivation had mitigatory value, the sentencing judge would look at cases such as Carr v R^[37] and Waikato-Tuhega v R^[38] and apply the standards and judicial commentary enunciated therein. But if the offender’s background of addiction had mitigatory value, the sentencing judge would turn to different cases, such as Zhang v R^[39] or Royal v R.^[40] Same too for mental health.^[41]

In Berkland, the Supreme Court reviewed these cases and recognised that sentencing courts were “neither articulating nor applying a uniform standard” to determine when sentencing discounts will be appropriate to recognise an offender’s background.^[42] Accordingly, it took this opportunity to clarify the appropriate standard.

The settled standard: “causative contribution”

After reviewing the jurisprudence in Canada^[43] and Australia,^[44] the Court settled on the “causative contribution” standard outlined in Carr v R. The Court explained that this standard is lower than operative or proximate cause.^[45] It captures the background factors” that are the “more diffuse drivers or the intergenerational sources of offending” that would often be excluded under a stricter causation standard.^[46]

The “causative contribution” standard is now the governing standard for determining whether an offender’s background justifies a sentencing discount. Discussing three common background features – deprivation, mental illness, and addiction – the Court said:^[47]

Contributory deprivation including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment.

These factors will amount to causative contribution where they “help to explain how the offender came to offend.”^[48] This statement should guide the analyses of practitioners and judges, who should seek information about the offender’s background and attempt to identify whether that background helps to explain how they came to offend. These background factors will be most meaningful where “the potential sentence is at the margin between imprisonment and a community-based sentence.”^[49]

Applying the causative contribution standard – deprivation, dispossession, and addiction

Having articulated the causative contribution standard, the Court turned to the three categories of background that were the focus in these appeals: deprivation, historical dispossession, and addiction.

Deprivation

Deprivation – social, cultural, or economic – is empirically linked with criminal offending.^[50] Indeed, some social scientists consider the correlation between deprivation and offending to be “axiomatic”.^[51]

Growing up in a deprived environment can impair the development of key behavioural capacities, which are critical to pro-social decision-making. These include the “capacity to empathise with others” as well as capacities for self-regulation such as “impulse control and anger management.”^[52] This, in turn, can inhibit basic executive brain function, which can impact an individual’s ability to consider and evaluate the consequences of their actions. Courts have long recognised this. In 1972, the United States Supreme Court explained that:^[53]

The “have-nots” in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. This is, indeed, a tragic byproduct of social and economic deprivation…

The Supreme Court in Berkland v R echoed this. Although it recognised that “not everybody in poverty will eventually offend”,^[54] it emphasised that the consistent correlation between poverty and criminal offending in itself is important.^[55] A defendant who experiences deprivation is often exposed to many criminogenic features which are “at least the diffuse drivers” of offending. In many cases, this helps explain how they came to offend.^[56]

Historical Dispossession

Turning next to historical dispossession, the Court noted that “the search for causative contribution does not end at the offender’s own personal story.”^[57] Indeed, these factors may be intergenerational. As the Court of Appeal said in Zhang:^[58]

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.

Reflecting on this, the Supreme Court accepted that – as a general proposition – historical dispossession of tribal capital and autonomy did “result” in Māori social, cultural and economic poverty in the latter part of the 20th century.^[59] That, in turn, caused disproportionate rates of offending and incarceration. For this reason, the Court was prepared to conclude that “modern Māori “systemic” poverty is the result of colonial dispossession without the need to prove actual causation every time”.^[60]

While the Court acknowledged that “Māori are not alone in New Zealand in having suffered historic deprivation and discrimination”, it did note that “no community in this country was deprived of its autonomy, internal cohesion and economic resilience in quite the way Māori communities were.”^[61]

Addiction

Before Berkland, successive Court of Appeal decisions expressed “discomfort over allowing meaningful discounts for addiction where the offender still had the wherewithal to lead a commercial drug business or play a significant role in it.”^[62]

The Supreme Court acknowledged this, but was similarly uncomfortable with the “sweeping exclusion of addition-based discounts” on this basis.^[63] In particular, it disagreed with the assumption “that (effectively) all methamphetamine addicts who offend on a commercial scale do so in a clear-eyed and cynical way”.^[64]

Reinforcing the importance of individualised justice, the Supreme Court stated that such “exclusionary rules or heuristics should be avoided.”^[65] Instead, the sentencing judge should “start with the facts in relation to the particular offender”.^[66] This also applies to the issue of self-reporting evidence. While independent evidence of addiction is “likely to be more cogent than self-report, there is no reason to disqualify the latter from consideration as incapable of proving the relevant fact.”^[67] Once again reverting back to its emphasis on individualised justice, the Court emphasised that “whether a mitigatory factor (if contested) is proved to the required standard will be for the sentencing judge who must consider all the circumstances of the case in the usual way.”^[68]

Serious and pre-meditated offending

Finally, the Court addressed an issue which has divided the sentencing courts: the relevance of background factors in cases where the offending is particularly serious.^[69]

The Court held that in some cases “where the offending is particularly serious”, an “inevitable downstream issue is how that should affect the mitigatory potency” of the offender’s background.^[70] In these cases, purposes and principles such as deterrence, denunciation and community protection will usually be “more powerfully engaged.”^[71]

The Court commented that “logically, there will come a point where background, even if it has contributed to the offending, can have no impact.”^[72] For example “complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency.”^[73] The causative contribution of an offender’s background to offending with this level of agency may “therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may become more important.”^[74] However, “such assessment will depend very much on the facts”.^[75]

Kōrero whakamutunga – Conclusion

Following the Court’s decision in Berkland, all participants in the sentencing process should focus on whether – and to what extent – the defendant’s background helps to explain their offending. This truly applies to everyone – Corrections officers writing PAC reports, the defendant themselves, their whānau and community, s 27 report writers, prosecutors, defence counsel, judges, and judges’ clerks. Rather than searching for an illusory causal link, each of these actors should take a step back and look holistically at the defendant and their unique background. Not only will this help identify underlying causes of offending, it will help determine whether that background “helps explain” the offending and whether a sentencing discount is appropriate.

Ngā kupu āpiti – Notes

[1]             Berkland v R SC 40/2020; Harding v R SC 64/2020.

[2]             Berkland v R [2020] NZSC 125 [Leave decision] at [1].

[3]             See: Oliver Fredrickson, Re-Thinking Systemic Deprivation Discounts, Māori LR (August 2021); Oliver Fredrickson, Getting the Most out of Section 27 of the Sentencing Act 2002, Māori LR (Nov 2020); Oliver Fredrickson, Systemic Deprivation and Sentencing Discounts: Progress but not Perfect, Māori LR (Sept. 2020).

[4]             Berkland v R [2022] NZSC 125 at [100].

[5]             At [109]. The Court adopted this standard from Carr v R [2020] NZCA 357.

[6]             At [109]-[110].

[7]             At [109].

[8]             R v Rakuraku [2014] NZHC 3270 at [56]-[58].

[9]             At [56]-[58].

[10]           Solicitor-General v Heta [2018] NZHC 2453.

[11]           At [50].

[12]           Zhang v R [2019] NZCA 507 at [157].

[13]           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].

[14]           See: Hammond v R [2021] NZHC 1064; James v R [2020] NZHC 2134.

[15]           See: Zhang v R [2019] NZCA 507 at [162]; Campbell v R [2020] NZCA 631.

[16]           See: Carr v R [2020] NZCA 357 at [65]; Cooper v R [2020] NZCA 510.

[17]           At [65].

[18]           Waikato-Tuhega v R [2021] NZCA 503.

[19]           At [51].

[20]           At [51].

[21]           At [52].

[22]           Berkland v R [2018] NZHC 1520; R v Harding [2017] NZHC 675.

[23]           See: Zhang v R, above n 12, at [48]; Orchard v R [2019] NZCA 529 at [28]; Moses v R [2020] NZCA 296 at [49]; Shramka v R [2022] NZCA 249.

[24]           At [89].

[25]           See: Sarah Krasnostein and Arie Freiberg “Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?” (2013) Law and Contemporary Problems 76(265) at 266, arguing that individualized justice and consistency are in “perennial conflict”.

[26]           See: Lyndon Harris Are Individualized justice and consistency incompatible (Oxford University Press, Oxford, 2022).

[27]           Berkland v R, above n 4, [89].

[28]           At [91].

[29]           At [90].

[30]           At [138].

[31]           See: Police v Prime [2019] NZDC 15985; Waikato SPCA v Tuaupiki [2018] NZDC 17046; R v Rewiri DC Kaikohe CRI-2011-027-001264, 23 July 2012; Police v Wikaira [2019] NZDC 17641; AL v Police HC Invercargill CRI-2011-425-44, 22 November 2011.

[32]           At [138].

[33]           At [146].

[34]           (12 June 1985) 463 NZPD 4759 (Dr Michael Cullen).

[35]           Berkland v R, above n 4, at [146].

[36]           At [143].

[37]           Carr v R [2020] NZCA 357.

[38]           Waikato-Tuhega v R [2021] NZCA 503.

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

[40]           Royal v R [2020] NZCA 129.

[41]           For which the judge would look at E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411.

[42]           Berkland v R, above n 4, at [100].

[43]           At [101]-[102]. See: R v Gladue [1999] 1 SCR 688; R v Ipeelee 2012 SCC 13, [2012] 1 SCR 433.

[44]           At [103]-[105]. See: Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [41]; Munda v State of Western Australia [2013] HCA 38, (2013) 249 600; Kolka v R [2019] NTCCA 16; Director of Public Prosecutions (Vic) v Hermann [201] VSCA 160, (2021) 290 A Crim R 110.

[45]           At [109].

[46]           At [109].

[47]           At [109].

[48]           At [109].

[49]           At [111].

[50]           Emad H. Atiq & Erin L. Miller, The Limits of Law in the Evaluation of Mitigating Evidence, 45 Am. J. Crim. L. 167-202 (2018) at 181.

[51]           Craig Haney Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation, 36 Hofstra L. Rev. 835, 856-857 (2008).

[52]           Tina Malti & Sophia F. Ongley, On Moral Reasoning and Relationship with Moral Emotions, in Handbook of Moral Development Research, 166-169, 171-172 (Melanie Killen & Judith G Smetana eds, 2 ed., 2014).

[53]           Furman v Georgia (1972) 408 US 238 at 447.

[54]           Berkland v R, above n 4, at [120].

[55]           At [120].

[56]           These criminogenic features include: prenatal maternal alcohol and drug use; exposure to serious violence or other trauma; lack of prosocial familial support and connection; being raised in a single parent household; having a caregiver who is or has been in prison; exposure to high levels of drug and alcohol use by adults; and living in chaotic circumstances, including multiple households and schools, high truancy, poor educational outcomes (especially low literacy and numeracy) and separation from family (usually through state intervention). See: [116], citing Craig Haney Criminality in Context: The Psychological Foundations of Criminal Justice Reform (American Psychological Association, Washington DC, 2020) at 220-235.

[57]           At [122].

[58]           Zhang v R, above n 4, at [159], citing Solicitor-General v Heta [2018] NZHC 2543.

[59]           Berkland v R, above n 4, at [123].

[60]           At [123].

[61]           At [126].

[62]           At [128].

[63]           At [128].

[64]           At [128].

[65]           At [128].

[66]         At [128].

[67]           At [129].

[68]           At [129].

[69]           See: Oliver Fredrickson “Re-thinking systemic deprivation sentencing discounts” (2021) August Māori LR 1.

[70]           At [81].

[71]           At [94].

[72]           At [94].

[73]           At [111].

[74]           At [111].

[75]           At [111].

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.

View all posts by Oliver Fredrickson