The Act Party is proposing to remove cultural reports from acting as a mitigating factor in sentencing offenders and the National Party is proposing to defund them. In my view, both will have the impact of depriving offenders of just sentencing because they prevent the offender from putting evidence before the court that may prove they had reduced culpability when offending.
Cultural reports, also known as section 27 reports, are permitted by the Sentencing Act and are used alongside other factors to give discounts to an offender’s sentence. The provision allows the court to hear the personal, whānau, community and cultural background of the offender and the way in which that background may have related to the commission of the offence.
There is no guarantee a cultural report will lead to discounts.
Cultural reports are not limited to one’s cultural identity. They include information about the offender’s educational and employment history, or lack thereof, and victimisation of the offender. What has stood out to me from cultural reports is the number of offenders who are either abused in state care or are victims of crime themselves, including sexual offending.
The New Zealand legal system assumes that every person is an autonomous individual making rational choices. The reality for many offenders is complicated, and they cannot always be said to be acting without external influences or pressures and impacted by things beyond their control.
There has historically been significant disparity in the make-up of the New Zealand judiciary and New Zealanders, and previously this has led to better outcomes for those who have lives similar to the judges.
In October 2021, 258 of 312 New Zealand judges agreed to take part in a diversity survey, carried out as part of Chief Justice Helen Winkelmann’s annual report, which revealed the majority - about 200 - identified as Pākehā, with 45 as Māori and 40 as European. Other ethnicities also included Australian, Chinese, European, Indian, Middle Eastern, Samoan and Tongan.
With only seven appointments made last year, Winkelmann said in her 2022 annual report those figures remained reasonably current. Another survey will be rerun for sitting judges this year.
Winkelmann said in last year’s report: “There is work to be done to ensure the New Zealand judiciary is more reflective of the community it serves. A particular area of concern is the low level of representation throughout the court system of Asian and Pasifika judges.”
The media also reported in 2021 that Pākehā were granted more discharge without conviction each year than any other ethnic group and Pākehā were granted name suppression three times as often as Māori.
In 2019, Winkelmann said it was a troubling reality “that an overwhelmingly Pākehā judiciary deals with a predominantly Māori cohort of defendants.” She was also concerned about the lack of judges from low socio-economic communities.
Anyone can get a cultural report but I have found they are mostly used in relation to non-white offenders.
I am certain offenders would rather people who understand their cultural background have a proportionate share of decision-making power than have cultural reports written about them.
Judges and defendants live lives of different species. Cultural reports remain a necessity. They fill a colossal gap in the experience and knowledge of many decision-makers. They tell the story of unfortunate events beyond the offender’s control that have contributed to their offending.
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