A Matter of Better Judgement

Cultural Reports under Section 27 of the Sentencing Act seek to address the entrenched asymmetry or negative disproportionality in criminal justice outcomes for Māori offenders. Its complex. Justice Sir Joe Williams holds that

We tend to sentence caricatures; we sentence six bullet points that fit whatever the sentencing law requires. The backstory is where we find the humanity of defenders and have half a chance of turning their lives around. The system just isn’t set up to do that.”[1]

There is pushback over the use of s27’s, both from political forces such as the ACT party and from within what Angela Davies calls “the prison industrial complex[2], the new cotton fields where white folks exploit black folks. David Seymour claims that “these reports are leading to massively reduced sentences for some of our most hardened criminals” and wants consideration of background factors in sentencing to be axed altogether. Oblivious to the inherent paradox that they themselves are making a significant income, some sectors of criminal justice propose that writing specialist s27 reports is creating an industry for those writing reports,

often at the expense of the taxpayer”. [3]

They also ignore the reality that even modest sentence discounts save the State significant sums. Moreover, the reports are intended to contribute to “Hapaitia Te Oranga”, a New Zealand criminal justice system that is fair, effective, and safe. An effective sentence will primarily be measured by an offender’s desistance from further crime, again with consequential significant cost savings to taxpayers. A reformed offender will, at the least, present low threat to community safety, and at best, may contribute both to community safety and pay tax.

Cultural report writers generally come out of the social sciences.  Their challenge is, through rigorous, transdisciplinary, application of the social sciences, to explain to the Court, supplying plausible evidence, the cultural forces and the consequences of systemic deprivation that have influenced the offender to act in the way that he/she has. It is called ‘causal nexus’.

Sir Peter Gluckman said that in Aotearoa/New Zealand social sciences are increasingly being called upon to

Address issues of growing complexity and uncertainty in an environment where there is plurality of legitimate social perspectives “. [4]

Gluckman says further that

This type of science almost never produces absolute answers but serves to elucidate interactions and reduce uncertainties. Precision is not the outcome, rather an assessment of probabilities”.[5]

The ‘A Matter of Judgement’ article quotes specialist report writer Shelley Turner as saying

that for many offenders the process of the report is the first time they have felt genuinely heard and be able to unpack their lives and gain more of an understanding of the causative factors to their offending.”[6]

That’s right. Cultural reports don’t excuse offending, but they do help explain it. The psychologist Carl Jung held that, until a person recognises their predicament, they will stay condemned to repeat their self-defeating behaviours and, likely, suffer serial imprisonment. The ‘unpacking’ that Ms Turner refers to identifies the systemic factors of colonialism and a racially biased criminal justice system. These factors are widely acknowledged. But not every Maori person is an offender. So, the crunch comes in the report writer assisting the offender to recognize that they have personal ‘agency’. This is the point at which the offender has made those free-willed decisions which specifically resulted in the offending that is being addressed by the Court.

With insight over their own culpability, and equipped with marketable skills, they can begin to see a way forward to legitimate employment and a stable, achieving life. A former prisoner, as a well-employed, tax-paying citizen in a fulfilling job, is much less likely to re-offend (effective deterrence) — and thus the community is effectively protected.

Of course, it’s not much point presenting a carefully prepared, robust, and well referenced report if the presiding Judge thinks this is all over the top and unnecessarily complex.  Northland’s Judge John Mc Donald is reported as complaining that people who think they can write these reports produce

very thick documents quoting every manner of research[7].

Judge Mc Donald lamented that in one instance report authors referred to an overseas study he had never heard of and “he had no idea at all[8] if it was an internationally accepted way of coming to conclusions as to how a deprived person’s up bringing was. Throughout the report he was referring to there were numerous footnotes to articles and publications he had never heard of and books he had never seen. Judge Mc Donald questioned whether the report writers expected him to “go ahead and read them for himself?[9]

A good social sciences graduate will always reference material. This is called academic rigour. Its what they have been trained to do. If a Judge is not up with the play the material the report writer cites is there to give the Judge confidence that its not ‘fictive’, made up.

When encountering a new line of thought or fresh research or evidence the Judge can look at the referenced material for themselves and come to their own informed conclusion. Being an intellectually lazy Judge doesn’t lead to just and effective sentencing.

 

Sir Joe Williams is the first Maori to be appointed to the Supreme Court. He is intimately familiar with the social construct that brings young Māori before the Courts. When he expresses support for use of S27’s cultural reports, then the three Northland Judges (their Honours, Keith De Ridder, John Mc Donald, and Greg Davis) who are questioning the value of such reports –– might be encouraged to take a deep breath, read, and listen.

It may be that their Honours’ discomfort arises from deeper apprehensions around tensions between what Justice Sir Joe Williams refers to as “Cook’s Law” and “Kupe’s Law” and the consideration of tikanga in common law.

Clearly there are diverse views held by the Judiciary as to how to treat the demonstrable asymmetry in outcomes for Māori offenders. Thirty-five years ago, during an appeal in the High Court, Smellie, J. noted that:

There is today a growing and some would say long overdue recognition that the Court system in this country, based as it is on the Anglo-Saxon tradition of the common law, is not always as flexible enough to ensure fair and appropriate treatment for all New Zealanders. [10]

In its own simple way, the s27 report gives rise to the bi-focal possibility of finding solutions to asymmetrical criminal justice outcomes for Maori. Justice Sir Joe Williams said on RNZ National

The Judge is only as good as the lawyers in the sense that the Judge responds to the case being brought by the lawyers. The more tikanga-savvy the lawyers are, the more tikanga responsible the Judge must be. It may or may not be the case that the judge accepts the tikanga argument, but it has to be made. And for quite a long time the arguments simply weren’t made. Law schools didn’t generate lawyers who knew anything about this. Those things have changed.[11]

Justice Sir Joe Williams sees s27 cultural reports in this light

So there’s lots that needs to be done. And across the last generation many administrations have sought to make changes so that the law can address that. One of them was the introduction of Section 27 of the Sentencing Act which was designed to allow whānau, hapu, iwi of an offender, community representatives of the offender to come to court and explain the offender’s background and so forth, and I think we could use that a lot more [12]

Recently NZ Herald senior writer Audrey Young published a challenging article about what she termed an “Activist Judiciary”. How would one describe Northland’s judicial trinity? “An Inert Judiciary”?

We can’t go backward. There are a range of innovations seeking better sentencing outcomes: Drug Courts: Marae-based Courts. Yes, cultural reports are imperfect. It makes sense to triage. Not every case requires a written s27 report and an oral submission from an informed member of the whanau or of the community might suffice.

The Ministry of Justice has dragged its heels over treating S27 report writing seriously. Where a written and well researched report is justified because of the severity of the offending or the intractability of the offender what is the optimal construct?

What constitutes a good report from a Judge’s perspective? What are the necessary qualifications of the report writers? Should there be a professional body to certify report writers? What’s a fair rate of remuneration for report writers?

I accept that resolving the asymmetric criminal justice outcomes for Maori New Zealanders as compared to other New Zealanders is challenging. It not only a matter of judgement, its one of “better judgement”. We need a fresh lens, ‘Kupe’ rather than ‘Cook’. The issue is complex, gargantuan, elephantine. How do you eat an elephant? You might start by putting it in a haangi.

ENDS

Denis O’Reilly holds a master’s degree in Social Practice. He has contributed to over 100 cultural reports and has been commended in the High Court and in the Appeals Court for the quality and value of reports viewed by these courts.

[1] Justice Sir Joe Williams RNZ National 16 December 2019

[2] See Davis, A (1971) The Prison Industrial Complex https://insurgence.substack.com/p/angela-y-davis-and-the-prison-industria

[3] ‘A Matter of Judgement’- by Sarah Curtis in the NZ Herald October 29th 2022

[4] Sir Peter Gluckman. April 2011 Towards better use of evidence in policy formation: a discussion paper. Forward. Para 4

[5] Ibid Preamble Para 12

[6] A Matter of Judgement’ Sarah Curtis in the NZ Herald October 29th 2022

[7] ibid

[8]  ibid

[9] ibid

[10] Wells vs Police [1987] 2 NZLR 560 (HC)

[11] Justice Sir Joe Williams RNZ National 16 December 2019

[12] ibid


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