Te Ao Mārama is meant to address criticism spanning four decades that the justice system isn't serving victims, offenders or communities. But how much difference can it make with its funding paused? Image/123rf
Te Ao Mārama is meant to address criticism spanning four decades that the justice system isn't serving victims, offenders or communities. But how much difference can it make with its funding paused? Image/123rf
Independent reports over four decades have repeatedly called for urgent change to a justice system that’s failing victims, offenders and communities.
Te Ao Mārama is the District Court’s attempt to fix this, primarily by diverting low-level offenders from the “justice highway” by linking them to the right community support.
Those at the coalface say it’s having a “significant impact” on sentencing, but the “tough on crime” Government has just put its rollout on ice.
Therein lies the crux of Te Ao Mārama, the programme bringing “transformational” change to the District Court before the “tough oncrime” Government put its rollout on ice, pending a review.
Those on the ground in Gisborne and Northland say the kaupapa is having a “significant” impact on sentencing, keeping some offenders conviction-free or out of prison. Its central pillar is “solutions-focused” judging to tackle why someone has landed in court, coupled with effective community providers to divert them from a life of crime.
The potential benefit is enormous: 200,000 matters come before the District Court every year, mostly for minor offending which, if unchecked, can lead to further offending of increasing seriousness. If that person becomes entrenched in the prison pipeline, that’s a lifetime of harm and countless victims that might have been avoided if the right support had been in place at an earlier age.
The flipside is that there is no silver-bullet support, and when those on community sentences commit horrendous crimes, the question in hindsight is always why they weren’t in prison in the first place.
Some judicial decisions are uncontroversial but others are borderline. Should someone caught driving without a licence get a conviction, which would impact the rest of their life? What about for drink-driving?
What about jail time for a burglary or family harm, if the right intervention is available?
The Government has now frozen funding until the review says whether the programme is working, leaving the future of Te Ao Mārama up in the air for the 51 District Courts where it is yet to be implemented.
Will it become little more than a set of voluntary guidelines, as the Government moves in the opposite direction towards tougher consequences for crime?
Prime Minister Christopher Luxon and Justice Minister Paul Goldsmith are unapologetically 'tough on crime'. Photo / Mark Mitchell
Shifting the status quo
Te Ao Mārama has many layers that aren’t so easily explained; Labour insiders used to joke that no one could say what it entailed beyond broad ideas of fairness and meaningful participation in court.
offenders who repeatedly return to prison because little is done to address what’s behind their offending;
parties to proceedings who leave court feeling alienated, disempowered and retraumatised.
This includes insensitivities where rapists and victims share the same space while waiting to enter a courtroom, or judges using technical language that leaves those in the dock confused and even angry.
These issues have been outlined in successive reports across four decades - most recently with Turuki! Turuki! at the end of 2019 - which have all called for urgentchange.
Te Ao Mārama is the judiciary’s response to those reports, and though it doesn’t need Government backing, money certainly helps.
The Labour Government threw $47.4 million behind it in 2022. Much of what was spent went towards bridging the disconnect between court and community. Many courtrooms aren’t even aware of the local support available, Taumaunu says. “It really does help judges looking to ensure that the way they treat people is going to be as effective as possible.”
Te Ao Mārama has now launched in eight courtrooms: Kaitāia, Kaikohe, Whangārei, Hamilton, Tauranga, Gisborne, Napier and Hastings.
Five more were next in line until the Government, in Budget 2024, shelved what was left of the funding: $25.3m. It might be unshelved “if a review of the existing programmes finds it has been effective”, according to Budget documents.
Finance Minister Nicola Willis with, from left, Christopher Luxon, Chris Bishop, Shane Jones, David Seymour and Winston Peters, on the way to the House for the reading of Budget 2024, which hit 'pause' on the rollout of Te Ao Marama pending a review. Photo / Mark Mitchell
‘TikTok’ justice?
Asked how the programme is making a difference, Taumaunu cites a youngster in the Youth Court guilty of aggravated burglary and motor vehicle offences.
The offender did community work and made a wood carving for the owner of the store he’d burgled. He also made a TikTok video - a more comfortable medium for him than a courtroom - where he acknowledged his offending, and included a photo of him reconciling with his victim.
“He complied with everything and didn’t offend again,” Taumaunu told the Herald.
“Would it have been different if Te Ao Mārama wasn’t here? Well, I can’t answer that. Possibly yes or no. I really don’t know,” Taumaunu says.
“But it is now a green light in the District Court to do this in the mainstream.”
He means mainstreaming what already happens in specialist courts, which generally have lower reoffending rates, and tend to take less punitive approaches that focus on addressing why someone landed in court in the first place.
“I get that. It’s actually smart on crime: holding people accountable and responsible, and addressing the underlying risks and needs.”
Te Ao Mārama is not meant for serious crimes that need long prison sentences, he says, but for low-level ones where a judge might consider prison versus a community sentence.
These comprise most of the court’s work: only 12% of people convicted are sentenced to prison, including 26% of those convicted of category 3 and 4 offences (punishable by prison sentences of at least two years).
Minor offending commonly escalates into more serious offending without the right kind of support, according to Katerina Ngarimu, manager of Tangatarite, the Te Ao Mārama service in the Gisborne District Court.
“They start as category 1 (offences punishable by a fine) and, when we first started in here, they were at the category 2s and 3s (punishable by prison),” Ngarimu told the Herald.
“But because now we are able to support them, they are coming away with a discharge and no conviction because they are able to address why they are offending.”
Many of the cases that Te Ao Marama has dealt with in the Gisborne District Court have been for excess breath alcohol. Photo / 123rf
‘Significantly changed sentencing’
Tangatarite comprises a manager and six full-time employees, at least one of whom is always inside the courtroom to help victims, offenders or their supporters understand what’s happening, and to inform judges what social service provider might be appropriate in each case.
It was set up after Te Rūnanga o Tūranganui a Kiwa (Trotak) was asked to help establish Te Ao Mārama in Gisborne.
“The people [we help] are mostly there for traffic offences or court orders like breach of bail,” says Trotak chair Moera Brown.
“Our biggest demand is actually young people for excess breath alcohol. Previously they would have just appeared, pleaded guilty and been fined, and probably re-presented in court in another six months or a couple of years.”
Two key elements are a judge willing to think differently about how justice is served, and the right community support to enable it.
Brown recounts several cases, such as a woman who’d smashed up her partner’s car.
“But initially she presented to us as a victim of family harm; he’d been assaulting her. She had three children under 5. We had to work through her issues, finding stability for her and then working through drug and alcohol issues because her partner was encouraging her to use [substances],” Brown says.
“But the biggest thing was getting both of them in a room to sit down and have a conversation, sober, and looking to the future. She’s doing really well.”
Sometimes the judge asks Tangatarite for help.
“There was a 21-year-old who was charged with a burglary of a laundromat. She was homeless and the judge said, ‘We can’t keep her in custody, but we’ve got nowhere to go. Can you help?’ Because we’re an iwi provider, we had some emergency housing,” Brown says.
Defence lawyer Manaaki Terekia says the right early intervention in low-level family harm cases can mean offenders don't return to court. Photo / 123rf
“We worked through a plan and connected her with her family, with a mental health provider, and a family harm service.
“The reality is that our ability to impact has significantly changed the sentencing. People clearly understand the consequences of their actions and the likely outcomes, whereas before the confusion created some pretty angry people.”
Te Ao Mārama can also empower victims, says Gisborne defence lawyer Manaaki Terekia, especially in the Family Violence Intervention Court.
“So there’s a big table, with the judge sitting at the head of the table, and support services on one side and police and Corrections on the other. The defendant is at the other end of the table. Sometimes the victim will also sit at the table [if they want to],” Terekia says.
“As we talk about how the defendant can progress through whatever plan they have, or bail conditions, the victims are often part of that decision-making process.”
Terekia also believes Te Ao Mārama is most effective for those caught “at the edges of the justice system”, such as someone caught drink-driving on a learner licence.
“They’ll do a defensive driving course, get a restricted licence and some alcohol and drug education, and then they might get discharged without conviction. The real benefit is a 21-year-old who has got help getting their licence, and some assistance to address whatever problems they have so they can move on, hopefully not reoffending again.”
One of the aims of Te Ao Marama is to reduce reoffending by addressing the drivers of crime and strengthening the connection between the courtroom and the community. Photo / 123rf
A conviction, however, would impact all future job applications, and can easily lead to further offending such as driving while disqualified because “you’ve still got a 2-year-old you need to take to kindergarten, you still need to drive to work, and you get caught driving again”.
“That in my view is a pretty unsatisfactory outcome because it doesn’t address any problems, or give that person any assistance.”
Terekia says there will always be a small cohort of serious recidivist offenders where interventions may not make a difference.
“But I can give examples of relatively low-level family violence, or young men who don’t have the ability to control or emotionally regulate themselves. Addressing that early may mean it doesn’t happen again.”
A ‘miss’ nine times out of 10
For Brown, the biggest difference has been for those in the dock.
“For the first time in forever, they can actually hear their voices being presented to the judge. Before it was hit and miss, and nine times out of 10 it was a miss because they were told, ‘No, I’m not talking to you. I’m talking to a lawyer.’
“The other aspect is family who need information to be able to support [an offender or victim]. They come in to help but actually go, ‘We don’t know what’s going on. Can somebody help us?’”
That’s also the experience in Northland courtrooms, according to Kaikohe-based Judge Michelle Howard-Sager, who says whānau now feel comfortable enough to be in the courtroom.
“They’re very supportive of the person appearing before you, but they also often hold them to account. That’s important for whatever comes out of that court decision, where you have whānau say, ‘But you told the judge you’re going to do this. Why haven’t you done it?’”
Howard-Sager won’t comment on anything political, but says: “It’s amazing to have whānau in the court in both jurisdictions [criminal and family] because we can listen to a kuia or kaumatua or grandparent who knows this young person inside out. That’s where you get the real story, what’s actually going on so we can try and deal with it.”
“In Kaitāia in the criminal jurisdiction, Waitomo Papakainga have a seat in the courtroom, and they’re beginning to have more of a presence in the Family Court at the request of whānau,” Howard-Sager says.
“The community, even the lawyers know what supports are available, and they encourage their clients to engage in advance of the matter coming before a judge. It ends up being a joined-up collaborative approach.
“Aren’t we doing the whole community a service when we’re ensuring there are no further victims?”
Judges can’t see the future
Whether the Government thinks this is money well spent is an open question.
Over the next 12 months, the Ministry of Justice will lead an “evaluation” to inform whether the $25.3m will be released. The review is expected to look at reoffending rates, the seriousness of reoffending, the “well-being” of court participants and their communities, and any reduced representation of Māori in the justice system.
“I hear that it’s working well, but we need to have that evidence so we can make sure we don’t waste money going forward,” Courts Minister Nicole McKee told the Justice Select Committee last month.
The Government is changing sentencing laws, which begs the question: do politicians know better than the judiciary? Photo / 123rf
The moves aren’t necessarily incompatible with Te Ao Mārama, but they might make a judge less likely to direct an offender to community support in certain circumstances, such as when the corner dairy is robbed or when the offending takes place while on bail or parole.
Judicial discretion remains, but the changes shift the spectrum on where a decision can land to the more punitive. What judges are doing needs some correction, so the underlying rationale goes, and the Government and the public support this.
But using public sentiment to justify the law and order agenda is akin to dragging the accused to the town square in front of the local mob, says retired District Court judge David Harvey.
“And somebody says, ‘What are we going to do with this guy?’ And so the mob rules. Is that the way you want your criminal justice system to work? That’s why we have judges.”
Harvey concedes judges aren’t infallible, but that doesn’t necessarily mean there should be wholesale changes when they get it wrong.
“We don’t have a crystal ball, we don’t have a time machine, we can’t tell the future. You call it as you see it on the day and hope it goes right.
Nor should Te Ao Mārama be deemed a failure if someone reoffends, he adds.
“It’s part of the human condition that we all make mistakes and sometimes we repeat them, but hopefully we don’t repeat them too frequently. I don’t know that it’s completely understood by many members of the community who see someone with multiple convictions and say, ‘Why shouldn’t we throw him into jail for the rest of his life?’
“Well, hang on a minute. Let’s work through this and find out exactly what’s been going on because throwing a person in jail and throwing away the key isn’t going to solve the problem.”
Retired District Court judge David Harvey says judges do not have a crystal ball. Photo / Jason Oxenham
Taumaunu says there are safeguards in the system, and if someone disagrees with a judge’s ruling, they can appeal.
That’s small consolation, though, for anyone who has lost a loved one because of the violent actions of someone on a community sentence.
“I recognise the difficulty is real in terms of the impact that offending has on victims,” Taumaunu says.
“That is also something that Te Ao Mārama framework is intending to address: that victims’ voices are heard properly in court.”
The start of the ‘justice highway’
Taumaunu wants the kaupapa to focus on two types of cases in the Family Court: children caught up in family violence, or in state care.
Such cases are closer to the starting point of the “justice highway - those points where people find themselves trapped in the justice system from an early age”.
It’s unclear how effective this can be without funding for a direct link between the courtroom and community providers, which are already struggling with shortages across the health, housing and mental health sectors.
Children who grew up in state care or in homes with family violence are much more likely to be caught up in the 'prison pipeline'. Photo / 123rf
But a lack of resources doesn’t mean interventions cannot be helpful.
A 2021 review of Family Violence (FV) Courts found a 19%-21% reduction in reoffending compared with a control group. This was despite “gaps in services that could enable FV Courts to be more responsive to the needs of victims, defendants and their families”, including in mental health, alcohol and drug treatment, parenting or financing support, relationship counselling, and family violence services.
Taumaunu adds that all judges can implement aspects of Te Ao Mārama without additional funding, including speaking in plain language, or changing courtroom layouts so they’re less intimidating.
How can he be sure Te Ao Mārama won’t become something that ends up looking good on paper but lacking delivery on the ground?
“You take one step at a time,” he says.
“There’s an old Maori saying: ‘He iti te mokoroa, kahikatea teitei ka hinga’ - although the borer grub is tiny, it can still topple the mighty Kahikatea tree. That’s really a way of saying these sorts of things take time, persistence and commitment.
“It really is a question of fairness, and if it’s not done now, when is it going to be done?”
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
