Judge endorses cultural reports

Justice Christine Grice. Photo / NZ Herald

A High Court judge has voiced her support for “detailed and fulsome” written cultural reports, saying they’re an important part of the sentencing process, “to ensure consistent outcomes”.

Justice Christine Grice made the comment while sentencing two brothers in Gisborne last week, for their brutal attack on a Māhia man.

The judge’s remark comes at a time when the reports are proving to be a hot political topic ahead of the upcoming election.

Cultural reports, also known as Section 27 reports due to the provision for them within the Sentencing Act 2002, are commissioned by defence counsel for clients with backgrounds they believe can be shown as causative or contributory to their offending, therefore reducing culpability. It’s one of several factors for which offenders can get sentence discounts.

Under Section 27, an offender may request the court to hear a person on the personal, family, whānau, community and cultural background of an offender and the way in which it might have related to the commission of the offence. Most western societies have a similar provision.

Any offender in New Zealand can request one. They are mostly publicly funded through legal aid following Ministry of Justice approval. There’s no guarantee a report will lead to discount.

Where there is a strong nexus between background and offending, offenders typically get between 20 – 30 percent discount.  The brothers sentenced in Gisborne got 20 and 25 percent for their reports.

The prominence of cultural reports in the sentencing process — particularly formal written ones — has markedly increased since 2019 on the heels of some significant discounts that year.

Ministry of Justice figures show the number of invoices for reports rose from 74 in 2018 to 2333 in 2021. Costs increased from around $865,000 in 2019 to more than $6 million in 2021.

That rising cost and the usefulness of the commissioned reports has drawn criticism from some quarters, including some judges, who say they are not necessary and that the Section 27 provision can be adequately fulfilled simply by oral address in court from someone well familiar with the offender’s background.

Critics also point to what they see as the emergence of a “gravy train” industry for report writers. However, the writers say their reports are no different to other commissioned pre-sentence reports, for instance mental health ones.

In the lead-up to the election, the Act Party has signalled it would remove provision for cultural reports altogether and the National Party says it will de-fund them.

Proponents of the reports say either of those policies would deprive offenders of “just” sentencing. The reports also serve an important dual purpose to highlight a rehabilitation plan and allow judges to ascertain the measure of comfort they can have that an offender won’t reoffend or stray from a path of rehabilitation.

The victim in last week’s case was permanently disabled as a result of the attack, having being beaten while unconscious by the elder of the brothers until the younger brother stopped him.

The court was told the victim had gone to pay his last respects to their recently deceased father whose body was lying at his house.  Not there at the time, the brothers received a call to come back from family at the house who were concerned the visitor was being disrespectful. Because of their dysfunctional upbringing, the brothers were not aware the victim was a cousin and close friend of their father’s. No one else at the house knew either.

Justice Grice commented on the “detailed and fulsome” cultural reports that were submitted for each of the men’s sentencing. She said it was “well settled that factors relating to personal, familial or cultural backgrounds of offenders can be mitigating at sentence where they’re shown to have a demonstrable causative connection to the offending”.

“To properly consider those types of discounts it is important that the detailed and fulsome reports about personal circumstances are before the court to ensure consistent outcomes are reached.”

The Section 27 reports in the brothers’ case provided the court with a “detailed picture” of their traumatic, impoverished upbringing and adverse childhood experiences.

Referring to the elder brother’s report, the judge said there was a particularly clear link between his background factors and his more serious role in the offending: cultural dislocation, adverse childhood experiences that had impacted on his ability to learn appropriate emotional regulation strategies, the normalisation of violence as a way to deal with emotionally difficult situations, and the normalisation of alcohol use resulting in substance addiction as a young adult.

The judge accepted that at the time of the offending, the man had consumed alcohol, was suffering grief and mixed emotions at the loss of his father, and was feeling under pressure as the new head of the family to deal with what was reported to him by his whānau as a stranger showing disrespect during what was a significant and sacred tangihanga.

The elder brother was jailed for three and a half years; the younger brother was placed on 10 months home detention.