Leading Māori criminal justice minds argue there is value in cultural reports that assist judges when sentencing offenders in court, but admit those who produce them could be better regulated.
National revealed its plan to scrap funding for reports produced under section 27 of the Sentencing Act – also referred to as cultural reports – at its annual conference and annual general meeting at the weekend.
The party’s policy document described this section of the Sentencing Act as being “weaponised” by Labour.
“The taxpayer funding of written reports has led to a thriving cottage industry, with written cultural reports produced by third parties who usually have no personal connections to the offender, designed to influence judges to deliver lighter sentences.”
“The number of reports produced has ballooned in recent years. From just eight in 2017 to 2,459 in 2022, producing them cost the Government $6.5 million last year.
National asserts the money saved from no longer funding these reports would be better spent on the victims of crime, helping them get access to counselling and financial assistance.
But justice advocate Tā Kim Workman says it is not that simple.
“When a judge reads the report, they actually realise that this person, while they may be an offender, is also a victim, and the circumstances that they’ve been brought up have not been within their control.
“And the other aspect of it is that if you put this person in prison for an extended time, you can almost guarantee they will emerge as more dangerous and more of a risk to public safety than they were beforehand.”
“Rather than crap on [cultural reports] why not be supportive and it could be part of the professional approach to supporting offenders.” – Kim Workman
Workman says pitching taxpayer cash as an either-or (offenders or victims) was simplistic.
“They say they are going to save the state $20 million by diverting that money away. You will spend four times that much looking after people in prisons, which are in themselves a cause of crime.
“And most of those sorts of people that come from those backgrounds can handle prison, because they’ve been beaten outside in the community, they’ve been suppressed and so forth. But when they come out, man, some of them are really dangerous. I would urge the politicians to think about what might happen when those guys come out of prison 10 years later… that’s the real challenge.”
AUT School of Law dean and associate professor Khylee Quince says the reports provide important context to the offending that is not found elsewhere.
“I’ve done a few hundred reports, and I don’t think I’ve ever done one for a person who is not also a victim of significant offending.
“You might judge them as being bad people, but they often have really big backgrounds of really terrible abuse. Quite often I’ll be the only person they’ve ever spoken to about that abuse.”
Both Workman and Quince stress the point of cultural reports was not to simply get people out of jail time.
“The reason they want to reduce the sentence is to provide them with an alternative, which is going to be more effective. At the end of the day, justice is not about slamming people into prison,” Workman says.
Quince agrees, saying the reports also offered a perspective that would never come from the pre-sentencing, psychological or psychiatric report which judges also considere when sentencing.
“For example, I regularly give information about whakamā – about how Māori show shame and remorse, and how that could be misunderstood or misinterpreted, and the way that people show up to court, the language they use, their body language, that specific cultural expertise, and information that a Pākehā or just a non-Māori probation officer won’t know about.
“Generally speaking, probation officers and lawyers, and perhaps psychologists and other experts that give opinions, have a real deficit view of offenders, you know, these are all the things that are wrong with this person. Whereas we try to speak to not only their identity, but their potential and how they came to be. It’s an explanation, not an excuse.”
“You do see some people straying into all kinds of lanes, but you can put some parameters around that without throwing the baby out with the bathwater.”
– Khylee Quince, AUT School of Law
However while the reports were invaluable, Quince says she is concerned at times over who was doing them.
“At the beginning, I got contacted a lot by people who weren’t Māori wanting to do reports, and I know that there are a number of them out there.
“You can’t be a cultural expert and give cultural information if you’re not a member of the community. I’m pretty firm on that.”
Some reports are extensive, she says, and acknowledges judges only have limited time when it comes to sentencing.
“Sentencing tends to be set down for about 45 minutes and so if they’ve got a file of facts about what happened, submissions from the Crown, submissions from the defence lawyer, the probation report, then they might have a psychiatrist or psychologist report, and then a cultural report for 50 pages that just makes it quite difficult. I appreciate that criticism.”
Quince says having some form of accreditation for report writers may be appropriate.
“The Family Court has done that for some time when people write reports, whereas it’s a free-for-all in criminal law.
“And perhaps sometimes people speak beyond their field of expertise. You do see some people straying into all kinds of lanes, but you can put some parameters around that without throwing the baby out with the bathwater.”
Workman says cultural reports are necessary as they compliment the other types of reports judges get, but they are even more valuable given the time constraints on probation officers and lawyers.
“Probation officers are grossly overworked. They have to produce reports within a timeframe and often they can’t manage that, so what you get is a pretty superficial report that the court says, well, this doesn’t really tell me what I want to know.”
“So rather than crap on [cultural reports] why not be supportive and it could be part of the professional approach to supporting offenders.”