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

In this case, interviews were conducted with the offender, the judge, the defence lawyer, two probation officers, 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 was a young Samoan man who was charged with, and convicted of, the offence of careless driving causing death. The case was heard in a District Court. The main details of the offence are as follows. The offender had been returning home in a van with family members, including his father and an uncle, after attending a wedding. He was designated by older family members to be the driver, although he was unlicensed. At about ten o’clock on a Saturday night, he crossed the centre line into the opposing lane, collided with an oncoming vehicle and killed its sole occupant, a Pākehā woman. The offender had not been drinking at the wedding, and was in fact a non-drinker. The offender was unable to explain why the van crossed into the opposing lane, but it has been conjectured that he fell asleep at the wheel.

The judge explained that before going into court for sentencing, she was asked by court staff if she would be prepared under section 16 to listen to a representative of the offender’s family and she agreed to this.

While the judge was personally unaware of who had initiated the use of section 16, it seems that the processes leading up to its use began when she called for an emotional harm reparation report under section 22 of the Criminal Justice Act in addition to the normal pre-sentence report. The preparation of the emotional harm reparation report involved a 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 probation officer was also involved in case study seven.

The emotional harm reparation report was prepared by the probation officer interviewed for this case study, who was based in the area where the accident occurred. He explained that in the course of preparing an emotional harm reparation report, attempts are made to bring the victim’s and offender’s whānau together, to start a process of reconstruction, to find out if apologies can be given and received, and to find out if there is a willingness on both sides to enter into a process of reconciliation and resolution.

If there is a willingness to enter this process, meetings are arranged to allow the exchange of feelings, to give and receive apologies, achieve mutual understanding, and attempt some resolution of the question of the payment of reparation. There is no set formula for determining the level of reparation and the level arrived at is very much a balance of the victim’s need and the offender’s ability to pay. If there is an offer of reparation from the offender, the judge must take that into account when deciding sentence.

When he spoke of his meeting with the victim’s family, the offender said that his purpose in meeting them was not to obtain their forgiveness, but only to explain his part in what had happened. He was extremely nervous before meeting them and thought he was going to faint. But when the members of the victim’s family started to speak, he realised that they were not there to judge him, or blame him, but to listen to his side of the story and then to offer their help and their love. The offender said that he had found it very hard to understand how they could respond in such a kind and understanding way. He found it very helpful and healing to be able to tell the victim’s family about what had happened, and he thought that they had found it helpful to be able ask him questions and hear his side of the story. The children of the victim were not at the meeting, however, and the offender has written to them to explain what happened and express his sympathy to them.

According to the probation officer, the use of section 16 became part of this process and the understandings arrived at during the process informed the submissions made by the probation officer in his report, and the submissions made by the family of the victim under section 16, prior to sentencing. It seems, however, that the submission made for the offender by a church minister was not directly influenced by these proceedings, because the minister had not been involved in them and his offer to speak had not been solicited by any party involved, as will be explained below.

The defence lawyer encouraged this process because he had spent time in Samoa, and was aware of the seriousness and sincerity with which a Samoan family would treat an event like this. He knew that they would accept an overall family responsibility to atone for the damage caused to the victim’s family. From the defence lawyer’s point of view, there were good reasons for doing this, from both human and legal perspectives. The defence lawyer explained that from a legal perspective, the courts are very mindful of victims’ families, and any apology or offer to make amends can be taken into account by a judge and result in a more lenient sentence. The defence lawyer discussed this with the offender and his family. The defence lawyer knew that the offender wanted to have the opportunity to apologise and express his remorse and he informed the probation officer of this.

As far as the actual use of section 16 was concerned, the offender said that his lawyer had suggested to him that he have someone speak on his behalf. However, the church minister who did speak for him had, in fact, done so without being asked. The minister explained that he had known nothing of section 16, and based his decision to speak for the offender on his experience as a policeman in Western Samoa, where the law allows a person to raise their hand in court and ask to be allowed to address the court before sentence is imposed by the presiding judge. According to the minister, he met the defence lawyer outside the court on the day of sentencing and asked if he could speak on the offender’s behalf. The lawyer then made arrangements for this to happen, as described below.

On the day that sentencing was to be carried out, the defence lawyer met with the prosecuting sergeant, who represented the victim’s family. He explained that a submission would be made on the offender’s behalf under section 16 and asked if the victim’s family would have any difficulty with that. The prosecuting sergeant suggested that the two parties got together to discuss this – something the defence lawyer considered to be most unusual, in his experience. At this meeting, the defence lawyer explained to the victim’s family what was going to be said on the offender’s behalf.

The Pākehā victim’s family, for their part, chose one of their women members to make their submission to the court. According to other family members, she had been very active in keeping the family together during this difficult time, helping with arrangements for the funeral, travelling to be with the victim’s children, and acting as a general contact person. This woman said that she wrote out the family’s submission in consultation with other family members and read this to the court.

The offender’s spokesperson was his church minister, but not otherwise related to him. The spokesperson for the victim’s family was the victim’s cousin.

The submissions were all made to the court orally. The defence lawyer said that they had thought about how best to present them and decided that an oral presentation would be more genuine and effective than a written one. They were also aware that the points that would be made in the oral submission would be covered in writing as well, in the probation officer’s report. Although the victim’s cousin had the submission written down so that she would not leave anything out, she said she did not read from it because her hand was shaking too much.

The probation officer described both submissions as having been given with very real feeling and with very strong emotion.

It seems that the cultural matters relating to the case were presented to the court in the probation officer’s report, rather than in the church minister’s submission, because the minister made it clear that he did not discuss matters pertaining to Samoan culture at all as he understood that this had already been done through the probation officer’s report. Instead, he focused on his knowledge of the offender as a member of a congregation in which he was a minister. He spoke of the offender’s involvement in the Sunday schools, with the church youth, and as an organist. He also spoke about the fact that the offender was single and lived at home with his parents and two sisters.

The victim’s cousin spoke about their family’s desire that the offender should not be sent to prison because he was young, it was his first offence, he had not been drinking, and that he’d had an accident that could happen to anyone. These feelings were reinforced by the meetings they had had under the auspices of the probation officer, during which the two families had come to understand each other and experience healing together. She indicated that, in essence their submission was intended to show their support for the offender and his family.

The probation officer said that he placed emphasis upon the weight of responsibility that the offender felt after being asked to drive the vehicle by his elder. This was an obligation the offender had derived from his family, and which led to the offence. In view of this, the probation officer emphasised the appropriateness of the sentence being shared by the family members through their contribution to any reparation order that was going to be made.

According to the judge, the cultural content of the submissions contained in the probation officer’s report emphasised the Samoan system of forgiveness and the process by which the offender’s family had gone to the victim’s family and knelt before them to ask forgiveness.

The defence lawyer considered that the judge was not initially sympathetic to the submissions. He said that it required considerable work to persuade her that what she was being told was true and that the process by which the offender sought to obtain forgiveness was a genuine aspect of Samoan culture. The defence lawyer had feared that if there had been the slightest suggestion from the police that they did not accept what the offender and his family were saying, then the judge would not have accepted the submissions. However, he said that in the end the judge seemed to accept what was said and the value of the meeting between the two families. He thought that it was the fact that the victim’s family had accepted the offender’s apology and remorse that had persuaded the judge to take the submissions seriously.

The probation officer’s perception of the way the judge received the submissions differs from that of the defence lawyer, although the probation officer was not actually in court for the sentencing. However, it was his understanding, at second-hand, that the judge had been very delighted with the probation reports and had listened with great interest to the families’ submissions.

The church minister who spoke for the offender thought that the judge had been sympathetic to what he said, and that this had been reflected in the sentence. The offender, himself, said that he could not tell what the judge thought of the submissions as she was listening to them, but she had seemed to be listening carefully and taking them seriously.

For her part, the victim’s cousin did not think that the judge had taken notice of her family’s wishes concerning sentencing. They had asked that there be no prison sentence or periodic detention, but despite that the offender was given a suspended sentence and five months periodic detention. She felt that that was quite severe in view of her family’s feelings on the matter and the offender’s remorse.

The judge, herself, said that she did not find the submissions themselves, from the minister and the victim’s family, helpful in determining the sentence because it was an offence of some significance in that the victim died. However, she said that what did affect the sentence was the attitude of the victim’s family towards the offender and the fact that they did not want an actual term of imprisonment imposed.

The judge found the cultural information that was presented familiar and did not think that she would have been able to make better use of it if she had received training in the assessment of the impact of cultural factors on the commission of offences. However, she did say that it might, for her, be a case of not knowing what she does not know.

When asked whether she had found it difficult to bring together the cultural factors presented in the submissions, and the legal framework within which she worked, the judge said that she did not because the issues of remorse and restitution which the submissions addressed were factors of direct relevance to determining sentence. The judge did not experience any difficulty in dealing with the submissions because she considered that they were relevant and to the point. She said that, in her experience, difficulties only arose with section 16 submissions when they were not relevant, or the expectations of sentence that they expressed were unrealistic.

The judge in this case identified a number of positive and negative aspects of section 16. The positive aspects, for her, were associated with the way in which the family of the offender became connected with the offence, the sentencing, and the sentence. The judge considered the involvement of the victim and/or victim’s family to be an added bonus because this enabled the court to be informed of their response to the offence and views about sentencing. As indicated above, the judge said that difficulties with section 16 arose when unrealistic expectations of sentencing were expressed in submissions, and she considered the potential for this to happen as a negative aspect of section 16. This was particularly the case with serious offences, for which custodial sentences were appropriate, where the submissions called for an alternative option such as the offender being released into the care of his or her family to be loved and cared for in order to prevent any further offending.

When asked how much support she thought there was among members of the judiciary, generally, for section 16, she said she could not give an accurate assessment of that, but did say that some colleagues she had spoken to had expressed serious misgivings. She thought these misgivings were the same as those she had expressed.

While the judge considered that no changes had been made to the normal court processes to accommodate the section 16 submissions, both the defence lawyer and the probation officer considered that there had been because of the extra time allowed for the submissions to be made and the fact that people other than counsel addressed the court. This disagreement is probably due to the judge referring to normal court processes when section 16 is being used, whereas the defence lawyer and probation officer were referring to normal court processes when section 16 is not being used.

For the defence lawyer, a significant issue raised by the use of section 16 in this case was that of appropriate punishment. He considered that there was, in the justice system and the political arena, a preoccupation with revenge and punishment. Yet this had not been a preoccupation of the affected families at all. The primary concern of the offender and his family was to apologise to the victim’s family and convey their absolute horror and trauma over what had happened.

The defence lawyer argued that the emphasis in the justice system upon deterrence and sending clear messages about the consequences of offending often overrode the genuine wishes of victims and their families by imposing much stronger sentences than the victims recommended as appropriate.

He considered that this case had been one in which the justice system had been caused to deal seriously with the views of the victims when determining sentence.

The judge considered that the submissions had definitely made more information available to her than she would have had without them. However, it was not so much the information about cultural practices and processes that she had found useful as the information conveyed about the victim’s family’s attitudes to sentencing that she had found helpful.

The defence lawyer agreed that a lot more information was available to the judge as a result of the submissions and he considered that this had been an educational process for the judge in which she had gained new insights.

The offender thought that the judge would have learned important things about Samoan culture, particularly the way in which people support each other in hard times.

The victim’s cousin thought that the most important information made available to the judge as a result of the use of section 16 was the agreement that existed between the two families in their submissions, and this assessment is consistent with the judge’s own comments, outlined above.

In the judge’s view, the submissions were linked to ongoing family support for the offender because of the family involvement in paying the reparation of $10,000 to the victim’s family and the family support he would receive to study at university. This material support from his own family was also linked to moral support from some members of the victim’s family through their desire that he should do well at university so that his university achievements would stand as a memorial to their lost family member, who had been deprived of finishing her own degree by the accident. The defence lawyer noted that the sentence included supervision, and suggested that this had been imposed to ensure that the offender did not walk out of the court and feel he had got away with the offence. The defence lawyer considered it important that support for the offender was sustained because there were concerns about how well he would recover from his trauma from the accident.

From the judge’s point of view, the main impact of the submissions was that they advised her of the victim’s family’s attitudes towards the offender and sentencing, which enabled her to suspend the actual term of imprisonment she imposed. She considered that the information she was provided with gave her confidence that the offender was as he appeared to be and was unlikely to go on to offend in the same way again.

This was also the defence lawyer’s view, and he considered that if the judge had thought the victim’s family wanted the offender imprisoned, she would have imprisoned him. So from the point of view of the defence lawyer the meetings between the families prior to sentencing were crucial to the final outcome.

The probation officer was also of the view that the submissions had enabled the judge to arrive at a more balanced decision than she might have otherwise. He considered that she took the view that this was a case that would normally require imprisonment, but because she was able to take into account the factors raised in the submissions, she was able to make a judgement that balanced the needs of offender, victim and community.

As a result of the use of section 16, the defence lawyer explained, a community-based sentence was imposed in the form of periodic detention, and supervision to ensure that the offender recovered from the effects of the accident and had guidance and support. The probation officer considered that the submissions and the meetings associated with preparing the emotional harm reparation report had provided the information the judge required to be able to pass a community-based sentence.

For the offender, the degree of support he received from his family and the church minister was a revelation. He said that before the accident, he had not known that he had so much support available. He also considered that his family had been brought much closer together as a result of their involvement in the case and the meetings with the victim’s family. He also thought that what had happened to him was serving as a cautionary tale for other family members who are anxious to avoid doing anything that might cause them to go before a court and end up doing periodic detention.

The probation officer, who is based in the offender’s hometown, also noted that the offender’s ties with his family and wider community had become stronger since the accident.

Another significant effect for the offender has been an increased awareness and understanding of his Samoan culture. As a result of conversations with the church minister, he had learned of the struggle his people have had with life in New Zealand and come to appreciate the way in which he was in-between cultures, in some ways, as a result of having been brought up in New Zealand.

Now that he has a greater understanding of where his culture comes from and become closer to his wider Samoan community, he has been brought closer to his family in Samoa, too.

The offender emphasised that the experience has made him determined never to re-offend and to seek help from parents, teachers, church ministers, and people from church if he needed support to avoid offending. He would recommend to other young people that if they found themselves in trouble, they should get someone, who knows them well and understands what sort of person they are, to help them and speak for them. An important result of the help and support he had received was that it encouraged him to talk about his feelings and relieve some of the pressure he was under.

The defence lawyer was extremely satisfied with the outcome of using section 16 and the process leading up to its use. He thought that one of the most exhilarating feelings a defence lawyer could have was to complete a trial knowing that justice has been done for both the offender and victims in a case. He explained that while it was not the defence’s brief to look after the interests of victims, it would be less than human for a defence lawyer not to be touched by the effects of offending upon them. In view of this, to witness a victim’s family standing in court to forgive an offender and ask that he make a success of his life to honour the life he took by accident, touched the defence lawyer deeply.

The probation officer was very comfortable with the total process that the use of section 16, with sections 22 and 23, provided. Section 22 of the Criminal Justice Act provides for the court to sentence an offender to make reparation to a victim or victims, while section 23 provides for the probation officer or other person preparing a reparation report for the court to attempt to seek agreement between offender and victim about the level of reparation. He thought this should happen more often and that the members of the legal and judicial professions could do a lot more to promote it. He noted that there were varying degrees of ability among judges to make effective use of section 16, sometimes because of their own situations, and sometimes because of the pressures of court lists.

Despite her misgivings about section 16 when people’s expectations were unrealistic, the judge too, was very satisfied with the use of section 16 in this case and considered that, given the particular circumstances of the case, a more appropriate sentence had been the result.

The offender was happy with the process and considered the sentence he received to be appropriate. Perhaps the only dissenter was the victim’s cousin, who considered the sentence to be too harsh because of the periodic detention component.

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

While there was a high degree of general satisfaction with section 16 by those involved in this case, there were some suggestions offered to improve the provisions and application of section 16. However, for his part, the offender was entirely satisfied with the process and did not think it required any improvements at all.

The judge considered that it would be useful to have guidelines prepared for people who will be making submissions on behalf of offenders, so that they could make their submissions relevant to the sentencing issues that judges must consider. If this happened, there would be more chance of judges developing sentences which were consistent with the expectations of families and less chance of submissions being at cross purposes with sentencing requirements and containing information that judges cannot take into account.

The probation officer recommended changes in two areas. Firstly, he recommended that, when appropriate, the courts order emotional harm reparation processes more frequently than they do at present, and that the courts be clear about the difference between an emotional harm reparation report and a victim impact statement. He said that the courts are not always clear about the difference between the two and sometimes considered that a victim impact statement was sufficient on its own. However, as he argued, it is the emotional harm reparation report that allows the process of mediation to take place, and this process can facilitate the input of cultural factors, as was demonstrated in this case. He thought that not all judges were as familiar with this distinction as they could be. The second recommendation he made was that all judges, as part of their sentencing process, make a general comment to the court to ask if anyone present would like to talk about the offender. While he appreciated that judges might find this an unwelcome added burden upon their already constrained time, he felt that they would benefit from people coming to regard the courts as user-friendly places.

The defence lawyer was satisfied with the present situation because he considered that the provisions of section 16 were flexible enough to allow it to be used effectively. He was generally of the view that the principle of allowing people, other than defence lawyers and other officials, to speak on behalf of offenders, should be encouraged, and that section 16 could be expanded to allow submissions which were not strictly about cultural factors so that a wider range of people could be called on to make section 16 submissions.

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

Use of section 16 by Pacific Peoples:

case studies seven to nine