Foreword | Acknowledgements | Tables | Executive Summary | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Glossary | References | Appendices
This report presents the findings of research on section 16 of the Criminal Justice Act 1985. Section 16 allows an offender who is before court for sentencing to request the court to hear a person speak on their behalf. The person may speak about the ethnic or cultural background of the offender, the way in which that background may relate to the commission of the offence, and the positive effects it may have in helping to avoid further offending.
The interest of the Ministry of Justice in undertaking research on section 16 arose from work on responding to offending by Māori. Officials were directed to review the use of section 16, its effect on sentence outcomes for offenders, and whether the purpose of section 16 needed clarifying. This research will contribute to a review of sentencing being undertaken by the Ministry. More generally, the Ministry is concerned with encouraging greater positive participation by Māori and other cultural groups in the justice system.
1.1 Section 16
Section 16 of the Criminal Justice Act 1985 states:
Criminal Justice Act 1985
S 16 Offender may call witness as to cultural and family background-
In its discussion of this section of the Criminal Justice Act (1985), Hall’s Sentencing[1] states that
‘…this may assist the Court in determining whether cultural attributes of the offender could be developed for rehabilitative purposes through the imposition of a community-based sentence.
The intention of the section is to permit information relevant to sentence to be presented to the Court in an informal manner…. Iwi (tribe), hapū (section of large tribe) and whānau support or mātua whāngai representation for the Māori offender was envisaged….
The Court must allow a person to speak on behalf of the offender unless it is satisfied that this course would not be of assistance. This may be because the sentence is fixed by law…or for "any other special reason". This expression is not defined in the Act, but would presumably extend to matters such as the gravity of the offence or the particular circumstances in which it was committed. The expression may also allow the Court, where necessary, to limit the number of persons speaking on behalf of the individual.’
1.2 The origins of section 16
The Criminal Justice Act 1985 brought about a number of significant changes to the law relating to criminal justice. The new legislation was a response to concerns about matters such as community involvement in the justice system, the victims of crime, and violent crime. Some indications of the origins of section 16 can be found in the submissions made by the Department of Justice to the Statutes Revision Committee on the Criminal Justice Bill in 1985[2]. The provision had not been in the original Bill introduced in 1983, nor the subsequent Bill when it was re-introduced in 1984. The 1985 submission states:
‘One of the striking features which emerges from a consideration of the imprisonment statistics is the high rate of imprisonment of Māoris (ten times that of the general population). The disparity between the Māori and non-Māori imprisonment rates remains marked even when a comparison is drawn between persons of similar socio-economic status…. Although Māori offending (measured in convictions) is markedly higher than that of the general population, we think that part of the answer to the problem is to place more emphasis on the use of alternatives to imprisonment for Māori offenders. This in fact is one of the major motivations behind the new sentences of community care…[3] It is also proposed that Māori offenders appearing before the Court for sentence should be entitled to have a person who is familiar with the case advise the Court on the offender’s family circumstances and cultural background and on other such matters as the Court considers relevant. Such a right would be in addition to the right for legal representation. A further provision should be added indicating the Court has power to allow any offender to call a person to advise the Court on the offender’s family circumstances and cultural background and any other matter considered relevant to the Court. This would help to counter any argument that the proposed change discriminates unduly in favour of Māori offenders in comparison with offenders from other racial groups. In our view these provisions would greatly assist to secure the co-operation of Māori people seeking ways to find alternatives to imprisonment. Further consideration will need to be given to this issue before the details of a draft clause can be settled, if the Committee agrees with the approach advocated here.’ (Emphasis added)
This extract suggests three things about the intentions of those who developed the policy in relation to section 16 of the Criminal Justice Act (1985):
When the Bill was reported back to the House the inclusion of the provision was one of the important changes. The then Minister of Justice, the Honourable Geoffrey Palmer referred specifically to Clause 14A (which was to become section 16 of the Criminal Justice Act).
‘…The purpose of the new provision is to secure the co-operation of ethnic minorities that at present experience high rates of imprisonment in seeking ways of finding alternatives to imprisonment. Clause 14A has been framed to apply generally to persons of all races to avoid any argument that it favours some racial groups at the expense of others.’
1.3 Early information about the use of section 16
The first documented feedback about how section 16 was being used appears in Moana Jackson’s report ‘The Māori and the Criminal Justice System: A new perspective: He Whaipānga Hou’[4]. He stated that ‘the sentence imposed on a Māori offender is so often perceived to be the final systemic act in a series of culturally-insensitive or biased steps’. He believed that the Criminal Justice Act 1985 was initially seen by Māori people as an effective way in which they could participate in the process of sentencing. However, in practice the Act had been found to have shortcomings.
Jackson identified two problems with section 16. One was that many Māori people were unaware of the provision and that it needed to be more widely publicised. The other was that the legislation itself had a ‘cultural flaw’ in that it limited the right to call witnesses if ‘for any special reason’ it would not be of assistance to hear them. This was reported to be seen by Māori people as unclear and an unnecessary barrier to their right to contribute cultural insights into the conduct of their young and the sanction they should face. The report recommended that this restriction be removed.
In response to Moana Jackson’s report, the Courts Consultative Committee made several recommendations about section 16[5]. They recommended that the section be used more frequently, and that a brochure explaining section 16 be prepared and distributed widely. Other recommendations were:
The Department for Courts subsequently produced a pamphlet on Section 16 in five languages, entitled ‘How to tell the Court about your cultural background before Sentencing’. The content of the pamphlet is reproduced in English and Māori in the appendices (Appendix one). As well as explaining what section 16 covers, how to use section 16 and what to do during the Court hearing, the pamphlet lists relevant cultural factors that might be included in section 16 submissions. The factors listed are heritage, ethnicity, culture, community ties, Mātua Whāngai, religious beliefs, and community resources.
Further information on the extent to which section 16 was being used appears in a 1989 Department of Justice report[6]. In a study of eight district courts over a six month period, section 16 was found to have been used in only 19 cases, or on average, in one in every 399 cases in which a Māori or Pacific Islander was sentenced. What little use there was of the provision appeared to be concentrated in a few courts. There has been little information collected about the use and effect of section 16 since this study.
1.4 Interpretation of section 16
A judgement of the Appeal Court in 1987[7] has provided significant interpretation of section 16. In the District Court, the appellant had applied under section 16 for members of Mātua Whāngai to be able to address the Court. The District Court Judge had held that the section did not envisage the giving of submissions without taking the oath in the Court by anyone other than the Judge, counsel and the parties to the hearing. The Appeal Court held that section 16 was intended to grant the right to interested parties to speak in Court without the need to go under oath. Section 16 was recognised as having brought about a major change in procedure, where previously only counsel and the accused had a right to an audience in the Court. This case confirms that this section would allow information relevant to sentencing to be presented to the Court informally. It is a means by which families, whānau, and community leaders can have direct access to the sentencing judge. It also recognises that at times a submission by an offender’s supporter can add to what can be conveyed in a lawyer’s submissions or a probation officer’s pre-sentence report.
1.5 The exploratory study
Prior to the research that is the basis of this report, Ministry researchers conducted an exploratory study to identify sources of information, sampling issues and research questions. The study involved discussions with a selection of judges, court staff, lawyers, Community Probation Service staff and community organisation representatives in three North Island Districts. Respondents provided observations of how section 16 was used, perceptions of the usefulness of the provision and sources of information for the main study.
The study found that most use of section 16, in the districts visited, was made by Māori and Pacific Peoples. Section 16 submissions were both oral and written. Where written submissions were made someone was usually available to address the court if called. Supporters of the offender and professional advocates made the submissions. Sometimes a lawyer or probation officer informed the judge that someone had been prepared to speak on the offender’s behalf. On other occasions, people made submissions without significant preparation, sometimes when invited to do so by the judge.
Respondents generally agreed that use of the provision was not as frequent, or as effective, as it could be. Some respondents felt the scope for its effectiveness, particularly in the High Court, was limited. Some felt that restrictions on time and resources explained the lack of use of section 16. Other reasons for non-use included lack of awareness and lack of understanding of the provision.
Respondents reported that use of section 16 would usually not be identifiable in case or sentencing documents. This indicated to researchers that research based on written documentation would not be feasible. Case studies and surveys were suggested options for further research.
1.6 The report
This report begins with a description of the objectives and methodology for the research. A series of eleven case studies of the use of section 16 are presented. In six of these cases the people sentenced were Māori, in three cases Pacific People, in one case a New Zealand European and in one case a Japanese. The case studies are followed by the findings of a survey of professional and community groups. The report concludes with an overview of the findings and conclusions from all sources of information.
Footnotes
1. all, G. Hall’s Sentencing. Butterworths, Wellington. Pp D/181, D182.
2. Quoted in Wells v Police [1987] 2 NZLR 560.
3. A type of community-based sentence in which an offender undergoes a programme agreed by the court and provided by any person or agency. The sentence was renamed ‘community programme’ in 1993.
4. Jackson, Moana. The Māori and the Criminal Justice System. A New Perspective: He Whaipānga Hou. Department of Justice, 1988.
5. Report of the Courts Consultative Committee on He Whaipānga Hou. Department of Justice, 1991.
6. Monitoring the Innovations of the Criminal Justice Act (1985). Department of Justice, 1989.
7. Wells v Police [1987] 2 NZLR 560.