By Ben Goh

A traditional concern of the law is the equal treatment and sanction of all who breach it. Despite this, principles of individualised justice and cultural pluralism often require courts to account for the unique backgrounds of defendants in order to achieve just outcomes. The circumstances of one person are not the same for another and the law must account for this in sentencing.

Here, New Zealand seems to have found a balance by way of section 27 of the Sentencing Act 2002. Under this provision, where guilt is established, offenders may submit reports for consideration in sentencing. The idea is that social, cultural or economic deprivation can mitigate a defendant’s culpability without absolving them of wrongdoing or the actual commission of an offence.[1] To the extent that a causal link can be shown, such reports commonly result in sentencing discounts of 10 to 30%. 

 

Background

A dramatic illustration of the importance of cultural considerations is the 1985 US case of People v Fumiko Kimura.[2] There, in accordance with Japanese customs, a woman drowned both her children by wading into the ocean in an attempt to commit oyako-shinju (parent-child suicide) after learning of her husband’s infidelity. The deputy district attorney lamented her obligation to prosecute the crime saying “but what can I do? Two children were killed and it doesn’t matter what her reasons were, it’s against the law.”[3] Ultimately, the state exercised leniency in allowing Kimura to plead guilty to voluntary manslaughter instead of pursuing charges of double homicide.[4] The cultural context influenced the law’s operation.

While the stakes may not always be as high as those in Kimura, a distinctive feature of New Zealand’s socio-economic landscape is the cultural disconnect that many Māori still experience in a country not long removed from the reality of colonialism. In the 2018 case of Solicitor-General v Heta, a 30% discount was granted on the heels of a cultural report.[5] Although the offending was severe and involved multiple stabbings to the chest of a partner, the presiding judge saw fit to mitigate the sentence in light of the defendant’s significant postcolonial trauma and disruption of cultural identity.

At appeal, the judge noted the defendant’s childhood experiences of violence, alcoholism and parental absenteeism. These factors, and therefore the offending were in part the culmination of years of intergenerational cultural dissonance and the defendant’s upbringing. Importantly, it was not ethnicity per se that triggered the discount but rather the specific facts of the defendant’s background which led to her inability to fully comprehend the gravity of the offence.

While strict applicants of the law would apply the maxim ‘when in Rome, do as the Romans do’, this would be to disingenuously hold that everyone is equally equipped to appreciate it. A common point of dispute is whether the law can be oppressive in imposing the values of certain dominant societal groups. In any case, it is not too much to concede that the reports reflect an appropriately nuanced approach to sentencing in a country with multicultural aspirations. Intuitively, it also seems fair that offenders’ cultures and backgrounds should be relevant to their punishments.

 

Criticisms

In recent years, however, the efficacy of cultural reports has come under heightened scrutiny as they have become more common. In April this year, the Auckland District Law Society noted that the number of reports had soared from 346 in 2019 to 1557 in 2020.[6] The costs were invoiced to the Ministry of Justice to the tune of $639,311 and $3.3 million respectively. When asked about the influx, prominent lawyer Russell Fairbrother QC stated that seeking a cultural report has become “almost automatic.”[7]

Central amongst the concerns is the contention that cultural reports often operate as a mere band-aid fix in seeking sentencing discounts without addressing the core of the problem. While there is little doubt that they achieve desirable outcomes for some, members of the Sensible Sentencing Trust, have questioned the degree to which this practice ignores the personal agency of convicted persons and the level to which individuals take action to remedy the issues raised in the reports after sentencing.[8]  This conflict between viewing the law holistically and individually is central to this debate. 

Moreover, there are questions as to whether cultural reports are even necessary at all. Under section 8(i) of the Sentencing Act, a principle to be considered in sentencing is “the offender’s personal, family, whanau, community, and cultural background.” To this end, independent justice advocate Ruth Money stated that “much of what is covered in section 27 reports was and is still covered in (section 26) pre-sentence reports.”[9]

The situation is not helped by the exorbitant fees that certain third parties extract from defendants in preparing the reports. While accepting that some people conscientiously write thorough reports for free, Money decried others who view the practice as a lucrative “money-making exercise” where a ‘cut and paste’ approach is often applied.[10]  For her, the $3.3 million would be better spent on prisoners and rehabilitation.[11]

 

Benefits

Despite these criticisms, there may yet be scope for cultural reports. As to the question of redundancy, Harry Tam of H2R Research & Consulting ventured that they serve a different purpose from the pre-sentence submissions.[12] The distinction lies in the focus of the cultural report which is to inform the court of how the defendant’s disadvantages may have contributed to the offending. In contrast, a pre-sentence report is prepared by the probation service and is concerned with the interests of the victim, the risk posed by the defendant to the community and the defendant’s ability to comply with the sentence.

As for the expense, Tam, perhaps rightfully, argues that $3 million would be a drop in the ocean in regard to the costs of rehabilitation. Instead, according to Counsellors Association spokeswoman Gay Puketapu-Andrews, the reports might better serve such interests by going “a small way towards redressing an inequity.”[13] In stressing their importance in the sentencing process, Russell Fairbrother QC noted that “they’re essential” and should be well funded by the state.[14] Like Tam, he believes that pre-sentence reports are insufficiently comprehensive to address the link between cultural disadvantages and offending.[15]

This may be evidenced by the simple fact that without cultural reports “very few judges are prepared to proceed with sentencing.”[16] Nowadays, their importance is such that it would be remiss for the defence to not submit one.[17] Evidently, however, the focus must be on how to optimise the process. While upholding the indispensability of the reports,  Minister of Justice Kris Faafoi emphasised the need to ascertain “where improvements might be made and how best practice can be more broadly applied.”[18] For him, the question is how the system can become more “effective and sustainable.”[19]

 

Improvements

Perhaps a prudent start would be to adopt the suggestion of Money and ensure that the authors of cultural reports are competent and subject to necessary oversight.[20] Fairbrother similarly believes that it is critical that the reports be prepared by “capable, qualified and objective writers.”[21] Indeed, if the purpose of the reports is to truly understand the defendants’ backgrounds, this seems like an obvious step before any insights into rehabilitation can be gleaned at all.

Recent High Court judgments may further provide guidance as to how Faafoi’s question may be answered. In July, in Kisiogo v R,  the court noted that the usefulness of a cultural report “varies markedly” due to the current trend of reports being  submitted by authors unknown to the defendants.[22] In addressing this, it opined that a cultural report will be most valuable where the author has a previous connection with the defendant and is able to intimately inform the court as such.[23] This means that where the defendant is Māori, a report will be of most assistance where the writer is from the same whanau or at least knows the defendant or his whanau.[24]

Also instructive is the case of Williams v R, where it was said that the true contemplation of section 27 is for cultural reports to be more than just written submissions.[25] Where evidence of community efforts to prevent reoffending is being adduced, the author should also attend court to demonstrate their commitment to providing that support. What is clear is that the submission of a cultural report should be more than a mere matter of practice to achieve a sentencing discount. Instead of rejoicing in the sheer increase in the volume of reports, the emphasis should be on how far they actually go in advising the courts of cultural disadvantages and how defendants may best be rehabilitated.

 

Conclusion 

Rather than exculpating offenders along ethnic lines, cultural reports simply explain the facts of their circumstances for consideration by the courts. In R v Evans, Judge Winter commented on the practice, saying “equality does not mean sameness. It does not mean treating like for like.” Rather it “must always mean there is a respect across differences.”[26] It follows that appropriate reductions should be given to those defendants who impress upon the courts a proper sense of how their background has affected their offending.  However, it is also apparent that reports must be more than just a means to an end. Notwithstanding a few such kinks that need to be ironed out, it seems that the cultural report is here to stay.

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Featured image source: Wikimedia Commons

[1] Zhang v R [2019] NZCA 507, at [162].

[2] People v. Fumiko Kimura, No. A-091133 (Cal. Super. Ct. L.A. County Nov. 21, 1985).

[3] Deborah Woo “The People v Fumiko Kimura: But Which People?” (1989) 17 Int J Soc L 403 at 405.

[4] Above n 2.

[5] Solicitor-General v Heta [2019] 2 NZLR 241.

[6] Rod Vaughan “costs balloon for offenders’ cultural reports” (28 August 2021) Auckland District Law Society <adls.org.nz>.

[7] Marty Sharpe “the rise of cultural reports in the New Zealand criminal justice system” (28 August 2021) Stuff <stuff.co.nz>.

[8] Above n 7.

[9] Marty Sharpe “large increase in number and cost of cultural reports for offenders” (28 August 2021) Stuff <stuff.co.nz>.

[10] Above n 9.

[11] Above n 9.

[12] Above n 6.

[13] Harrison Christian “judges reduce jail time by up to two years for cultural factors” (28 August 2021) Stuff <stuff.co.nz>.

[14] Above n 7.

[15] Above n 7.

[16] Above n 6.

[17] Above n 7.

[18] Above n 6.

[19] Above n 6

[20] Above n 6.

[21] Above n 7.

[22] Kisiogo v R [2021] NZHC 1648, at [16].

[23] Above n 22.

[24] Above n 22.

[25] Williams v R [2021] NZHC 1960, at [27].

[26] R v Evans [2017] NZDC 21170, at [23].