Ministry of Justice: Publications: Reports: 2000: Speaking about cultural background at sentencing: Section 16 of the Criminal Justice Act 1985

Kiwi Tamasese, Peter King and Charles Waldegrave
Family Centre Social Policy Research Unit

This research was carried out under contract to the Ministry of Justice to provide three case studies of the use of section 16 of the Criminal Justice Act by Pacific Island offenders. These case studies, together with six case studies of section 16 use by Māori offenders, and two of its use by those of other ethnicity, were to contribute to this larger report on the use of section 16 being prepared by the Ministry of Justice. The parameters of the research were established in the Ministry of Justice tender document, and the methods employed were determined by a combination of those parameters, the nature of the information to be obtained, and the time constraints under which the Ministry was working to produce the larger report.

This discussion of the methods used to produce the three Pacific Island case studies will cover the following areas: primary sources of information; recruitment; interviews; and data analysis.

The project brief specified that the primary sources of information for each case study were to be the following key informants:

The identification and recruitment of cases of section 16 use by Pacific Island offenders was carried out by the researchers in consultation with the Ministry of Justice research team. Initially, the Ministry team provided a list of potential cases as well as a list of lawyers who had indicated, in their responses to the survey carried out by the Ministry of

Justice, that they had worked with clients who had used section 16 in their cases, and were open to assisting with further research. In addition, the researchers drew upon assistance from Pacific groups that worked with Pacific offenders and the Community Probation Service. These sources of support will be discussed, in turn, below.

The list of cases provided by the Ministry of Justice included a number which had occurred a long time ago, and it was decided to concentrate on the six cases which had been held during the previous five years. The lawyers for these cases were contacted, but of these, four did not respond to the researchers’ enquiries. The lawyer for another case replied, but the offender had left the country. The other lawyer who replied offered to contact the offender, who agreed to be contacted by the researchers. Interviews were conducted with the lawyer, offender, cultural support person, and judge. However this case was not able to be used because the judge considered that section 16 had not been used because the cultural evidence had actually been introduced during the trial and only re-stated prior to sentencing. In the end, however, one of the cases used in this study was identified with the assistance of a lawyer.

Following this disappointing start, the researchers contacted Pacific Island community groups in Auckland and Wellington to seek their assistance in identifying cases. While one of the groups contacted had worked with section 16 cases, the worker who had done so had since migrated and was not available to assist. While the other groups generally had pamphlets about section 16 on their premises, uncertainty about the specific provisions of section 16 made it unclear whether any of their clients had actually used it in their cases. This uncertainty was exacerbated by the lengths of time which had elapsed since many of the potential cases had been heard. Most groups reported that in cases they had been associated with, any cultural evidence or submissions had been presented by probation officers in their probation reports. No suitable cases were identified from these sources.

At the same time, probation offices in Auckland, Wellington and the Hutt Valley were asked to assist with the identification of cases. From the perspective of the members of the Community Probation Service spoken to, section 16 was not often used because cultural evidence was often submitted by probation officers in their pre-sentencing reports, instead. However, one of the cases presented in this study was identified and recruited with the assistance of the Community Probation Service, and their assistance in contacting offenders, cultural support people, victims and victim support people was invaluable.

In the end, three cases were identified and successfully completed. One of these, case study three, was suggested by the lawyer who had been involved in the case, mentioned earlier, which had been ruled out. One of them, case study one, was identified by the Ministry of Justice team after the earlier cases they had suggested were not able to be pursued. One, case study two, was identified with the assistance of the Community Probation Service.

Once cases had been identified, judges were approached to confirm that each case was in fact one in which section 16 had been used, and to seek their consent to participate in the study. The lawyers involved in these cases were approached by the researchers and asked to facilitate meetings with offenders and their families. Initial contact with offenders and their families was by phone, followed, in two cases by several face to face meetings between them and the principal researcher, prior to meeting for the interview. Probation officers were also approached and they facilitated contact with the families of victims in case studies seven and eight.

The recruitment of offenders was conducted with the importance of familial relationships, both consanguineal and affinal, for Pacific people kept firmly in mind. While these relationships have significance among all cultures, they are of particular significance for Pacific people. By comparison, dominant Pakeha/European frameworks tend to place significance upon forms of social solidarity which are not based upon descent or marriage. In view of this, it was considered essential that the consent and co-operation of offenders’ extended family be obtained, and this was achieved in each of the three cases studied. Obtaining this co-operation involved the interviewer providing detailed information about the research, verbally. Each offender was interviewed in the company of members of his or her family. All participants signed a consent form before being interviewed (Appendix seven). The consent form contained a written summary of the information about the research which had been provided verbally by the interviewer. In consenting to take part, participants acknowledged that they:

With two exceptions, all interviews were conducted by a Pacific Island researcher. The two exceptions were a judge and a cultural support person, who were interviewed by a Pakeha member of the research team who had research fieldwork experience in the Pacific.

Interview schedules were developed which incorporated the research questions suggested in the project brief. A separate interview schedule was developed for each of the four types of key informant, to ensure that the research questions were investigated in ways that were appropriate to the particular roles each played in the court process and the use of section 16. Question lines were piloted before being applied in the field.

In view of the sensitive and complex nature of much of the information being sought, it was decided that in-depth interviews with open-ended questions would be more suitable than a structured, closed-question survey instrument. The question lines were semi-structured in that they contained a series of set questions organised around the research questions, but allowed the interviewer freedom to probe within each question. Questions were open-ended and responses were recorded on audio-tape.

Interviews were audio-recorded and transcribed for analysis. The transcripts for each case study were analysed separately. Transcripts were coded using a coding scheme which reflected the case study research questions. Excerpts of transcripts were extracted and grouped with the assistance of a database programme.[28] For each case study, the material from all participants relating to each research question was analysed and the views, experiences and perceptions of each participant are presented and discussed in each case study report and a final discussion of results.

In this case, interviews were conducted with the offender, the judge, the defence lawyer, the probation officer, the person who made submissions on behalf of the offender, and the person who made submissions on behalf of the victim’s family.

The offender in this case was a young man from Kiribati in the Central Pacific. The offender lived with his sister and brother-in-law and worked in a market garden. According to all parties interviewed, this was his first offence in New Zealand, although his lawyer thought that he had been convicted of a minor traffic offence in Kiribati.

The offender was charged with, and convicted of, the offence of careless driving causing death. The case was heard in a District Court. The offender had been awake for a long period as a result of having attended a family social gathering and working extended hours before falling asleep at the wheel of a vehicle he was driving. As a result of his falling asleep, the vehicle left the road and struck the victim, a mother who was walking with two of her five children. The victim and her family were Māori. The victim was killed and her two sons injured, although not seriously. The offender, who was an unlicensed driver, had not been drinking and the incident was attributed solely to his tiredness.

According to the judge, defence lawyer, and probation officer, section 16 was not specifically referred to during the hearing of this case. However, the judge considered that the submissions made before sentencing by the victim’s husband and father were consistent with submissions made under section 16 because of their cultural content.

The presentation of these submissions followed an intensive process of mediation between the families of the offender and the victim, which was facilitated by the probation officer responsible for preparing the emotional harm reparation report for the court. This mediation was suggested by the court which adjourned the case to allow time for it to take place. The probation officer involved in this case was also involved in case study eight.

Initially, the whānau of the victim had not wanted to meet personally with the offender, for several reasons. The first was associated with the difficulty in arranging for close whānau, who had attended court hearings, to return home from elsewhere in New Zealand. Secondly, aspects of the offender’s demeanour in court had given members of the victim’s whānau the impression that he was unconcerned by the effects of his actions. Finally, there were fears that the anger felt by some of the victim’s whānau was such that their actions, during a mediated meeting between the two whānau, might have caused problems. Because of this, the probation officer embarked upon a process of what he termed ‘shuttle mediation’ between the two whānau.

Through this process, the victim’s whānau was able to convey to the offender the severity of the impact of the victim’s death upon them and in particular her husband and children. Briefly, her husband was an invalid, who had been forced into being a sole parent for his children. His oldest son, aged 22, was extremely angry towards the offender. His second son, aged seventeen, had been unable to come to terms with his mother’s death and had made three attempts on his life, requiring him to be admitted to a treatment centre. The impact upon the younger sons was not as visibly great, but the fact that they were all with their mother when she died meant that they had experienced severe trauma. The victim’s whānau were also able to convey to the offender and his whānau that they had interpreted his body language in court to mean that he was uncaring and unrepentant.

Finally, the offender was informed that, despite his tragic loss, the victim’s husband had no wish for the offender to be imprisoned because that would not bring back his wife. However, he was strongly of the view that there should be reparation to assist with costs associated with the tangi (funeral), the unveiling, raising the victim’s sons, and travel and marae visit costs to be borne by the victim’s husband as he assumed some of his wife’s duties. Although the offender did not have the means to undertake such reparations, the victim’s husband considered that the offender’s extended family should make payments, because the offender’s brother-in-law had allowed him to drive as a weary and unlicensed driver.

A significant degree of mutual cultural understanding was achieved at these meetings and areas of cultural misunderstanding resolved. The probation officer made it clear that resolving these issues was instrumental in clearing the way for the families of the victim and the offender to meet. It was the elucidation of four particular cultural factors that the probation officer considered vital to obtaining the victim’s family’s agreement to a meeting.

The first of these was associated with the victim’s family being annoyed by the offender’s smiling demeanour in court, which they interpreted as a sign of insincerity and lack of caring. The offender’s whānau were able to explain, via the probation officer, that in Kiribati this demeanour was consistent with greeting and conveyed aroha and respect.

The second cultural factor concerned an incident at a proceeding held during a pre-trial hearing when the defence lawyer was represented by a colleague because he could not attend himself. During this proceeding, the colleague commanded the victim’s husband to be quiet when he tried to speak. He did this because no plea had yet been entered and he wished to avoid anything being said which might prejudice the offender’s case. While this action was consistent with legal requirements, it was extremely offensive to the victim’s family for their member to be treated so discourteously. However, the revelation that the offender and his family had themselves been deeply offended by this treatment of the victim’s husband, and felt very sorry for him, was crucial to persuading the victim’s family to meet the offender’s family.

The third factor concerned the need in I-Kiribati culture (culture of the inhabitants of Kiribati) to establish and maintain balance in relationships, and to re-establish this balance when it is disturbed or destroyed by the commission of a wrong or offence. The victim’s whānau gained comfort from the heartfelt expression of apology conveyed by the sobbing offender. This apology was accompanied by the offender declaring himself prepared to accept any penalty whatsoever, including forfeiting his life. He also offered to assist the victim’s family in any way he could.

Finally, the victim’s whānau gained comfort from learning that the offender’s whānau, who had wanted to attend the tangi, but had not done so on the advice of the police, had held their own service at the same time.

As a result of the understandings reached during these meetings between the probation officer and the victim’s family, a meeting between the two families was agreed to and arranged to be held in a Catholic church under the auspices of a priest. According to the probation officer, the victim’s husband, and the offender’s family, this meeting had a powerful effect upon them all as they shared their grief at what had happened.

According to the judge, the defence lawyer indicated to the court that the victim’s husband wanted to address the court and that the victim’s father might also wish to do so. The defence lawyer indicated that specific arrangements had been made with the judge beforehand to accommodate submissions from the different families. In addition, the victim’s husband, who spoke for the offender before sentencing, spoke to a court officer about arrangements for him to speak. The defence lawyer also discussed cultural factors in his pre-sentencing submissions.

The victim’s husband received advice from the probation officer and Victim Support on matters relating to making a submission. However, he emphasised that the content of his submission was prepared by him alone, and the decision to speak for the offender was his alone, too.

The defence lawyer was assisted in his cultural submissions by an I-Kiribati who had acted as an interpreter in the case and the mediation meetings, and provided general support to the offender and his family.

The victim’s husband and father and the offender were only related through the incident in which the offender had caused the victim’s death. The I-Kiribati interpreter was originally from the same atoll as the offender, but there was no family connection between the two.

The submissions were all made to the court orally. The defence lawyer spoke first and gave what the judge referred to as a quite long and detailed submission which he finished by asking if the family of the victim could speak. The victim’s husband and father then addressed the court, sometimes addressing each other as they did so. The victim’s husband spoke for about an hour and a half.

In his submission prior to sentencing, the defence lawyer included cultural factors on which he had been advised by the I-Kiribati translator and cultural advisor. He spoke of the desire of the offender and his family to approach the victim’s family at an early stage, to attend the funeral, and to lay mats at the graveside. He explained how they had been deterred from doing so, on the advice of the police, for fear of retribution by members of the victim’s family who had threatened this. He spoke of the misunderstanding that had arisen due to the offender’s smiling demeanour in court and explained that this was appropriate behaviour in the context of the offender’s culture.

In his submission, the victim’s husband spoke of the mediation process and the ways in which this had enabled him and his family to move from their initial feelings of anger towards the offender to forgiveness. He discussed the mutual cultural understanding that had developed during the mediation meetings and the way this had allowed him and his family to understand aspects of the offender’s demeanour which they had found offensive when judged from the perspective of their own culture. Underlying his submission was an understanding of death and an approach to grieving which was firmly grounded in his Māori identity and the networks of relationships in which that was based. An important feature of this was the Māori way of dealing with the pain of bereavement by speaking out and talking about it.

When interviewed he emphasised the healing nature of the process that his family and the offender’s family were going through and indicated that this was a partnership that had begun when their families met at the church. This process continued after the sentencing when the offender and his family accompanied the husband to his wife’s grave. He described this as an emotional and grieving process for the offender and his family, and as a blessing for himself.

The judge considered that the submissions in this case did not fit a narrow interpretation of section 16 because they were not confined to cultural matters relating strictly to sentencing. He saw the process as one enabling people to vent their feelings in ways culturally appropriate for them and allowing them to grapple with their feelings about what had happened. He considered that section 16 was a very positive provision when interpreted widely, but of less value when interpreted narrowly.

While he found the submissions relevant to the case and to sentencing considerations, he did not think that they influenced the sentence he finally imposed because he considered that the issues aired in the submissions would have still been dealt with by him, but in other ways. When asked if it had been difficult to bring together the cultural factors presented in submissions and the legal framework within which he worked, the judge explained that it was not difficult for him because of his life experience and upbringing in a Māori setting. Because of this he had a good idea of what responses to expect when he questioned people about cultural matters or allowed people to speak of them. He explained that while there were sometimes contradictions between the sentiments expressed in cultural submissions and the accepted ways of administering justice, he found that these could be resolved by being open to suggestion, the exercise of lateral thinking, and being prepared to find outcomes which represent justice for the people concerned, rather than operating from the punitive position usually required by legislation. This attitude was reflected in his observation that there was a lot more to this particular case than the act of somebody being run over.

The judge found the experience of dealing with the submissions in this case very satisfying because they had contributed to providing the people concerned with an experience of justice that gave them hope and a desire to go on to better things. He felt that the environment created in these situations enabled him to dispense justice in a way that elevated the human spirit.

According to this judge, section 16 submissions were more the rule than the exception in cases he heard. He particularly valued hearing from offenders’ family members because he considered that they knew the offender much better than anyone else in the court did, and by listening to them speak he was able to discern where justice lay for the offender. He emphasised that it was not conveyed directly by those who spoke, but indirectly in the way they spoke. He contrasted this with the way in which the actions of lawyers were often aimed at shielding offenders from the consequences of their offending. He also considered that such family participation in the court proceedings was beneficial to the family, particularly Māori and Pacific families, because he realised that offending was not an individual matter, but something that affected a variety of people and the family in particular. In the case of Māori and Pacific offenders, he recognised a particularly close relationship between offenders and their families because of the extent to which an offender’s family members felt implicated in his or her actions. The judge illustrated that closeness with the example of the case being discussed here in which the offender’s family voluntarily assumed responsibility for paying reparation to the victim’s family because they felt they shared their kinsman’s culpability.

It was clear that this judge considered section 16 as much more than an aid to sentencing. For example, in the case being discussed, he did not consider that the submissions had influenced his sentencing at all, but they, and the process of mediation preceding them, had combined to create an atmosphere of forgiveness, reconciliation, shared grieving, and a feeling of justice having been done. He was unsure how much support there was for section 16 among the wider judiciary, but did consider that judges were increasingly moving to achieve outcomes consistent with restorative justice.

The defence lawyer and husband of the victim both considered that the judge had listened to their submission sympathetically and seriously. The probation officer described the manner in which the judge delivered his judgement and sentencing as most sensitive and caring and occupying over two hours, which he considered to be a very long time for sentencing in a district court.

Both judge and defence lawyer agreed that there had been a departure from normal court procedure to the extent that the judge allowed the victim’s husband and father to make their submissions from wherever in the court they felt comfortable and also allowed them to speak to each other while making their submissions. Perhaps the most significant departure from normal court processes in this case was the degree of latitude the judge allowed the husband and father of the victim in making their submissions. As the judge explained it,

It was his view that it was necessary to provide this degree of latitude, to allow people to yell if they needed to, if the process was to be taken seriously and allowed to work.

The judge explained again that section 16 had not been formally invoked in this case saying that the cultural submissions were made as a result of him exercising his discretion, as the judge, to allow it to happen.

The defence lawyer thought that there had been problems associated with attempts to introduce cultural input too early in the case, before a plea had been entered and while the defence waited for the police to supply technical information, such as whether the accident had been caused by a mechanical failure, which would have provided a defence. The defence lawyer thought this had happened as the result of a misunderstanding on the part of the community magistrate. It was during this period that the incident, referred to earlier, occurred in which the defence lawyer’s colleague told the victim’s husband to stop talking and sit down. It was the defence lawyer’s view that the introduction of cultural evidence during the pre-plea stage of a case was problematic because it had the potential to prejudice the subsequent entry of a not guilty plea. He felt that the use of section 16 was of greater relevance either following a guilty plea or a conviction.

The victim’s husband expressed the hope that the example of this case would encourage a process of change in the relationship between the justice system and the people, and that those involved in the justice system would increase their understanding of cultural values. He emphasised that this was particularly important in terms of the Treaty of Waitangi.

The views of both the judge and the defence lawyer illustrate the element of confusion which has been found to exist around the issue of section 16. This confusion is between a strict interpretation and application of section 16, on the one hand, and an ad hoc introduction of cultural evidence, on the other. For example, strictly speaking, section 16 is designed to be used after conviction and before the passing of sentence.

Assistance needed by judges in order to be able to apply section 16 more effectively

When asked whether he found the cultural information challenging because it represented a set of values, beliefs and norms significantly different from the judicial set of values, the judge acknowledged that they were different, but that his prior extensive contact with Māori and Pacific people had rendered him sensitive to their ways of expressing themselves and acting. Because of this he had not found the experience personally challenging. He did agree, though, that he might have been able to make better use of the cultural information presented if he had received some training in the assessment of the impact of cultural factors in the commission of offences against the law. He expressed an interest in receiving such training if it was made available and said that he thought it was being considered for the first year of judicial studies. As far as interest in such training among other members of the judiciary was concerned, he thought there would be great interest.

The judge considered that the submissions had definitely meant that he had more information available to him than would otherwise have been the case. This was also the view of the victim’s husband.

The defence lawyer considered that the information given during the pre-sentence submissions was already known to the judge, so he did not think that the content of the submissions actually increased the amount of information the judge had available to him. What he did think was important, though, was the fact that it was said again, and the way it was said, because it demonstrated to the judge the extent of the healing that had taken place for both families.

The judge said that the submissions told him a lot about the offender’s community and support networks.

The defence lawyer considered that ongoing family and community support infused the whole mediation process as well as the submissions.

The victim’s husband said that his submissions were definitely linked to ongoing family and community support for both the offender and his family.

The judge considered that the use of section 16 did not affect the sentence directly, but did affect the process of sentencing.

The defence lawyer considered that the submissions did have an effect because they addressed three valid sentencing factors: remorse; reparation; and victim impact. These are factors which judges have to take into account in sentencing.

The victim’s husband said that his main concern was that the offender should not be imprisoned or deported to Kiribati, but should pay reparations to contribute to the support and education of the victim’s children and his own commitments.

The defence lawyer explained that the victim’s husband had discussed the question of reparation in some detail during his submission. He described the need for reparation to help support his family, which included a child with a disability. According to the defence lawyer, he calculated a sum of about $20,000 as being the reparation sought. In the sentencing, the judge considered that the offender did not have the means to pay such an amount and set a lower amount of $5,000, which was to be paid within two years. In addition to paying reparation, the offender was sentenced to five months’ periodic detention and disqualified from driving for two years.

When considering this case, it is difficult to separate the use of section 16 from the mediation process which preceded its use at sentencing. For this reason, the effects of the mediation process have been discussed in this section.

The offender and his family greatly valued the mediation process and the opportunity it provided for them to establish a direct relationship with the victim’s whānau. They felt that the whole experience had brought them closer together as a family, and also strengthened their relationships with their wider I-Kiribati community in their city. In addition, it had created a relationship between the I-Kiribati community and the family of the victim.

The offender had been aware of threats made by some members of the victim’s whānau to take physical revenge on the offender and his family.

The reconciliation achieved by the mediation had served to allay the offender’s fears for himself and the safety of his family in this regard, although the offender was still concerned that his family might be subject to attack if he was deported to Kiribati, despite assurances from the victim’s family. According to members of the offender’s family, while he was still extremely distressed by what he had done, the reconciliation had made it easier for him to bear the burden. It was a great comfort for him to receive the victim’s husband’s forgiveness and to be able to speak to him face to face.

The judge thought that he had struggled with articulating his decision on the day, but felt that the process had worked well, overall. The judge’s self-evaluation is in contrast with the probation officer’s comment that the judgement was delivered "in a most sensitive and caring way, and that was brilliant to hear."

The offender and his family expressed their satisfaction with the submissions presented to the court by their lawyer and were satisfied with the sentence that was passed, saying that they had prayed for a sentence of periodic detention and reparation. They were also grateful for the representations made on the offender’s behalf by the victim’s husband.

The victim’s husband was very satisfied with the presentation of his submissions because he felt well prepared for the task by his involvement and participation in other official engagements and hikoi (walks/activities). He felt that his submission had been instrumental in setting the offender free and saving his life.

Improvements suggested by informants, based on their experience with section 16

The judge’s main concern was that the provisions of section 16 should be wider than they are. He was of the view that the section should allow and encourage submissions which go beyond cultural features like tikanga or customs, and allow any affected parties to speak on any subject pertaining to the ways in which they have been affected by the actions of the offender. He felt that judges should be encouraged to take the time to listen more widely to the views of those affected because this would make it easier for them to identify the most appropriate application of justice for each particular case. He emphasised his view that it was not the function of the judiciary to merely dispense justice according to the strict framework of legislation and precedent, but rather to do justice in each individual case.

The offender’s family thought that it was important to obtain the assistance of a cultural support person as soon as possible in the case.

The victim’s husband argued that the provisions of section 16 should be used more widely so that cultural values and background are always taken into account before sentencing.

Use of section 16 by Pacific Peoples: case studies seven to nine

Use of section 16 by Pacific Peoples:

case studies seven to nine