Sonya Bateson: Trauma should never be a literal get-out-of-jail-free card

Fresh trauma deserves the most recognition in the justice system, writes Sonya Bateson. Photo / Getty Images

OPINION

There’s something about the word “cultural” that raises some people’s hackles.

I think the word is such a trigger in our country because people look at a phrase such as “cultural reports” and automatically assume it’s about Māori people or Māori identity, and that seems to bring out strong feelings of anger or defensiveness depending on the person.

But the word “culture” itself is not limited to a person’s ethnicity. Culture is “the ideas, customs, and social behaviour of a particular people or society”, according to Oxford.

Any group of humans with shared social behaviours will have a “culture”: religious groups, hometowns, political beliefs, careers, hobbies, or age and generation. They all have different cultures.

And so, when a judge asks for a cultural report, it’s not legal jargon for “tell me you’re Māori and I’ll let you off easily” as some critics have wrongfully assumed.

A cultural report is a document prepared for judges looking into a defendant’s personal, family, community and cultural background, and the way in which that background may have related to the offence.

Have a look at some reported court cases involving cultural reports and you’ll see what I mean: Ethnicity is barely mentioned. Instead, when a cultural report results in a sentence discount, it’ll usually be because of abuse, growing up in a dysfunctional environment, exposure to harmful substances at a young age, witnessing traumatic events, suicidal ideation, and/or mental health concerns.

Take this recent example: Matu Reid, the man who shot and killed two people and injured a police officer at an Auckland construction site, was on home detention for kicking and strangling a woman, leaving a broken bone in her neck.

The cultural report for that case described a history of systemic deprivation, exposure to domestic violence and physical abuse.

Reid was given a starting point of three years in jail, then was given a 25 per cent reduction for his guilty plea, and a nine-month reduction for his background factors, youth, and expressions of remorse. The total sentence was then 20 months, which automatically translates to 10 months’ home detention.

That was further reduced by five months because of time already served in custody, meaning a total sentence of five months’ home detention.

Sentencing takes a lot of factors into account.

Robert Fisher, KC and former High Court judge, agrees. In an opinion piece in the NZ Herald this week, Fisher says sentencing is not a simple matter - the Sentencing Act runs to 138 pages and requires sentencing judges to take 36 different considerations into account.

In other words - the judges giving discounts for relevant cultural reports, guilty pleas and remorse are doing so because they’re a legal requirement.

University of Auckland’s Fuimaono Dylan Asafo, a senior lecturer at the Faculty of Law, described cultural reports as being “one of the few ways our criminal justice system can show compassion and humanity.”

I can appreciate the value of cultural reports. Knowing how someone’s background laid a path for their future criminal acts is incredibly useful information.

But what if we could put those reports to another use?

What if we could use the reports to better research crime prevention? We could potentially learn exactly which turning points in a person’s life are likely to lead them to a path of crime, then use that information to intervene and course correct before a problem begins.

Or what if the details from the reports could be used to create an effective personalised rehabilitation programme for every offender? It’d be worth the extensive resourcing that’d take I reckon.

But - and it’s a big but - it is my opinion that cultural reports should only ever be used to discount the length of a sentence in extreme cases, the ones where it’s clear that a person’s messed-up childhood absolutely, without a doubt, had an irrefutable part to play in the person’s offending.

And I believe the sentence discounts for cultural reports should be far smaller.

One change I suggest is an uplift for physical and/or mental trauma caused to a victim, proportional to the harm caused.

Maybe the offender gets, say, a 5 per cent discount for an awful childhood but gets an extra 20 per cent for the harm they caused their victim.

That way the damage inflicted by the offender on a victim is given more weight than the circumstances of the offender’s past.

Don’t get me wrong - I firmly believe that people with suffering in their past should be treated with utmost kindness and compassion. The culture we grew up in and the culture we live in helped form who we are today.

But, in my opinion, trauma should never be a literal get-out-of-jail-free card. An offender has created new trauma, and it is that fresh trauma that deserves the most recognition in the legal and justice systems.

As the saying goes, trauma is an explanation for behaviour, not an excuse.

Sonya Bateson is a writer, reader and crafter raising her family in Tauranga. She is a Millennial who enjoys eating avocado on toast, drinking lattes and defying stereotypes. As a sceptic, she reserves the right to change her mind when presented with new evidence.