The rise of cultural reports in the New Zealand criminal justice system
14 April 2020
The use of cultural reports in criminal sentencings has increased sharply, resulting in better outcomes for offenders but angering victims' advocates.
Figures provided under the Official Information Act show the number of cultural reports invoiced to the Ministry of Justice each month in 2019 increased from 12 in January to 57 in December.
The monthly cost of those rose from $18,789 in January to $102,204 in December.
Over the year there were 346 cultural reports funded by the Ministry, at a cost of $639,311.
Under section 27 of the Sentencing Act 2002 an offender can request, or a judge can suggest, that the court hear a person or persons speak to their personal, family, whānau, community, and cultural background.
It's also an option for the offender, or their lawyer, to engage someone to write a cultural report. These can be funded, if approved, by Legal Aid Services or the Public Defence Service.
The figures provided by the Ministry don't include cultural reports that were paid for directly by an offender or their lawyer.
The increasing use of the reports pleases, and comes as no surprise to prominent lawyer Russell Fairbrother QC.
He said the increase would be partly because of changes that provided funding for reports through Legal Aid after the Justice Ministry said courts would no longer fund them.
"I think there's also been exponential growth as people recognise the cultural reports can be one of the most important parts of the sentencing process from a defence point of view", he said.
"Without a doubt they're essential," he said, and they should be well-funded by the state.
Fairbrother said probation reports did not go into the sort of detail that addressed the link between deprivation and offending.
Justice Joe Williams's reaction to the contents of a cultural report commissioned by Fairbrother in the sentencing of Steven Rakuraku in 2014 was instrumental in creating awareness of the reports, Fairbrother said.
Rakuraku was sentenced to life in prison for the brutal murder of Johnny Wright in 2011. On receiving a cultural report that traversed the plight of Māori, particularly Tūhoe, Justice Williams reduced Rakuraku's minimum non-parole period by 12 months to 17 years.
Under section 27 of the Sentencing Act 2002 an offender can request, or a judge can suggest, that the court hear a person or persons speak to their personal, family, whānau, community, and cultural background.
It's also an option for the offender, or their lawyer, to engage someone to write a cultural report. These can be funded, if approved, by Legal Aid Services or the Public Defence Service.
The figures provided by the Ministry don't include cultural reports that were paid for directly by an offender or their lawyer.
The increasing use of the reports pleases, and comes as no surprise to prominent lawyer Russell Fairbrother QC.
He said the increase would be partly because of changes that provided funding for reports through Legal Aid after the Justice Ministry said courts would no longer fund them.
"I think there's also been exponential growth as people recognise the cultural reports can be one of the most important parts of the sentencing process from a defence point of view", he said.
"Without a doubt they're essential," he said, and they should be well-funded by the state.
Jess McVicar of the Sensible Sentencing Trust says cultural reports are too often used as a means of having a sentence reduced.
Fairbrother said probation reports did not go into the sort of detail that addressed the link between deprivation and offending.
Justice Joe Williams's reaction to the contents of a cultural report commissioned by Fairbrother in the sentencing of Steven Rakuraku in 2014 was instrumental in creating awareness of the reports, Fairbrother said.
Rakuraku was sentenced to life in prison for the brutal murder of Johnny Wright in 2011. On receiving a cultural report that traversed the plight of Māori, particularly Tūhoe, Justice Williams reduced Rakuraku's minimum non-parole period by 12 months to 17 years.
"No-one really knew about these reports back then to be honest. Since then it's become almost automatic [to seek a cultural report]. As long as you can show some nexus between the offending and the background, then judges are routinely given a 10 to 15 per cent discount from the starting point," Fairbrother said.
He said at this point it would be "very remiss" for defence counsel not to seek a cultural report in most cases.
He said the reports were of use not just to the court, but also the offender, and it was critical that they were written by capable, qualified and objective writers.
"It opens the offender's own eyes to the hardships they've faced and their present position. It can be hard for some people to identify in the current make-up from events in their childhood.
However, Jess McVicar, of the Sensible Sentencing Trust, said cultural reports had their place but were too often used as a means of having a sentence reduced rather than understanding why an offender behaved in a certain way.
"Many offenders may use the disconnection from their culture but do not even know their whakapapa and have made no attempt to know it. It is an insult to the victims but also their iwi and they are using the system to their advantage.
"We have seen discounts given for cultural disadvantage. But do the offenders get monitored to see if they actually find their iwi, their marae or even identify with their elders?," she said.
McVicar said rather than resulting in a discount to sentence, a cultural report should be drawn on to reveal what sort of treatment would be beneficial to the offender. That could include compulsory rehabilitation and reconnection with their cultural heritage.
"We don't think they should be state-funded. The victim's assistance is already abysmal compared to what the offender gets," she said.
