When judges sentence offenders, they have to take into account a number of factors. These are set out in the Sentencing Act. Among them are the offender’s personal, family, whānau, community, and cultural background, particularly with a view to rehabilitation.
This background information comes in a variety of ways. One is by a report prepared by a probation officer. Another is in the form of submissions, affidavits and letters presented by counsel. Another is by the provision of background and “cultural” information.
An offender may request the court to hear any person called to speak on the personal, family, whānau, community and cultural background of that offender, as well as how that background may have related to the offence. This is set out in section 27 of the Sentencing Act.
Judges must hear persons called to provide this information unless there is a special reason for not doing so.
Section 27 provides a means of getting background information to the judge ‒ information that the judge must take into account. The provision has been around since 1985 but it has been underused.
Since about 2015, the practice has developed of presenting the background information in the form of written reports – often incorrectly referred to as “cultural reports”.
The section provides for this information to be conveyed to the judge orally, but this has some difficulties. The information is often detailed and nuanced. It requires time to digest it and factor it in to sentencing. Written reports are of enormous assistance to a sentencing judge. They can help assess culpability for the offending and provide pathways for rehabilitative treatment to prevent reoffending.
In most cases, offenders who seek to put background information before the court are on legal aid. Section 27 background reports are prepared privately. Approval from legal aid for funding reports must be obtained before a report is commissioned.
The new government proposes cutting funding for section 27 reports. This is a bad proposal.
First, it deprives the court of vital information about an offender’s background and how it linked to the offending – things like poor education, bad role-modelling, limited ability to problem-solve, difficulty in understanding available choices and numerous other factors. Without such a report, the judge is deprived of the background information that the law requires be taken into account in sentencing.
Second, those offenders who can afford to commission a background report will be in a better position in terms of outcome than those who are unable to do so. This is discriminatory and means that a more favourable outcome may be based on a person’s ability to fund a report.
Those who cannot fund a report can still rely on an oral presentation but that is rarely of the quality, depth and nuance that one finds in a professionally prepared report. That is not equal justice before the law.
Third, every citizen should be able to access justice and expect equal treatment, irrespective of means. Outcomes must be determined on evidence and the application of standard rules. There must be consistency and certainty of outcome. To deprive a section of the community of such treatment, offenders though they may be, means that they do not have proper access to justice.
And this affects us all. Although the cry may be to punish offenders – though the word “punish” does not appear in the act – rehabilitation and prevention are in the long-term interest of the community.
To deprive offenders of funding for background reports that could signpost a rehabilitation pathway is not in the interests of the community, the offender or justice.
David Harvey is a retired district court judge.
