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, and the Samoan defence lawyer, who, in this case, also presented cultural submissions under section 16. While agreeing to be interviewed, the judge declined to speak directly about this particular case, and restricted his responses to general comments about the use of section 16.

The offender was a Samoan woman, a solo parent who worked part-time. The victim was her adopted daughter. This was the offender’s first offence. The police case against the offender was that she had assaulted the victim and she was charged with assault with a weapon. The victim, who was also from Samoa, had been adopted by the offender and came to live in New Zealand, where she stayed with the offender and her other children, who were also adopted.

The offender discovered that the victim, who was then seventeen or eighteen years old, was having an affair with a married man. There were a number of attempts to counsel the victim to stay away from the man, but she ignored these attempts. The man came to the offender’s house one night, while intoxicated, and asked to see the victim. The offender turned him away and she and another daughter told the victim to stay away from the man. The victim ignored this advice and ran away from home the following morning.

The offender and her other daughter went to where the man was staying, but he refused them entry. However, it was clear to them that the victim was in the house, so the offender and her other daughter entered the house, grabbed the victim and dragged her back to their van. This was accompanied by a lot of yelling and screaming, and people who were present became very upset. Eventually the victim was put in the van and taken back to the offender’s house. During the journey home, she was assaulted with a jandal, and punched and slapped. At home, she was further beaten with a vacuum cleaner pipe by the offender, and others who were not charged. Finally, the victim’s hair was cut as a form of discipline.

In the meantime, the man had called the police, who arrived at the offender’s house shortly after the assault on the victim. By the time the police arrived the situation had calmed down, but they took statements from the people present and then charged the offender and her other daughter with assault with a weapon.

The offender and the defence lawyer agreed that it was the defence lawyer who had initiated the use of section 16 in this case. The defence lawyer said that he decided to use section 16 because it is possible for an offender to avoid being imprisoned for an offence involving serious violence, if there are special circumstances relating to the offence, or the offender. He used section 16 to explain the Samoan cultural practice of cutting the hair of young women as a sanction for serious breaches of acceptable behaviour. He emphasised this because the police case placed some weight upon the hair cutting, representing it as spiteful and malicious.

During pre-sentence submissions, the defence lawyer spoke alternately as defence lawyer and cultural advisor, in his capacity as a Samoan Matai (Samoan person of chiefly or high ranking status). It is unclear whether the submissions made by the defence lawyer in his capacity as a Matai met the strict criteria of section 16 because he was also the defence counsel. However, it seems that the purpose of section 16 had been met by the cultural submissions, made by the defence lawyer, in his capacity as a Matai.

The offender, for her part, had chosen this particular lawyer because he was Samoan and would understand why she had done what she did. She made it clear that she did not want a lawyer to make excuses for her. She wanted a lawyer who would be able to explain to the court that she loved her daughter (the victim) and that what she had done was not to punish the victim, but to protect her.

The judge explained, speaking generally, that the onus for initiating and arranging section 16 submissions rests with either the offender or their counsel.

The defence lawyer made his submission in person, speaking from the bar table. According to him, there was no written material, diagrams or historical analysis of the practice of hair cutting. He presented the submission as an oral description of a cultural practice, and no other person spoke on the matter.

The defence lawyer explained that his submission concentrated on the cultural significance of the offender cutting the victim’s hair, and did not deal with the beating. The submission explained that cutting the hair of a young woman, in these circumstances, is carried out as a form of correction or discipline, for them having overstepped the bounds of the behaviour required of them. Normally this would involve a serious breach of promise, deliberate disobedience, or bringing shame to the family name. In these circumstances, young girls up to the ages of eighteen to twenty could have their hair cut as a punishment which is visible to them, and a sign to the village that they have been disciplined for something that they have done wrong. The practice also reinforces families’ authority over young girls.

The submission explained that the hair cutting, in this case, wasn't severe, because, while it was cut short, it was not shaved completely, as sometimes happens in these cases. The submission also explained that the victim, herself, understood why it had been done. In essence, the cultural explanation was used to put what seemed to be a most cruel punishment in its proper cultural context.

The defence lawyer considered that the judge had received the submission sympathetically. He felt that the judge would have started from the premise that the haircutting represented a very cruel and heartless approach to dealing with a young woman who had rights of her own.

The judge did not indicate how he had received the submissions in this particular case. However, he did say that while it would be very unusual for a court to conclude that serious violence could be excused by some cultural factor, it could be sympathetic to cultural factors that might suggest that an offender was open to rehabilitation and support.

When asked if he experienced difficulty in bringing together cultural factors presented in section 16 submissions with the legal framework within which he worked, the judge explained that the law set out a sequence of reasoning to be followed, and priorities that had to be observed. He said that, in general, cultural factors tend to combine with other factors in this sequence of reasoning to illuminate the circumstances of the offender and take their place in the process of sentencing. He did not experience difficulty dealing with cultural evidence in this context and had never been given information about an offender’s cultural background which he had found personally challenging or unhelpful to his dealing with the case.

When asked if he thought that it would be helpful to have training available for the judiciary in the assessment of the impact of cultural factors on the commissioning of offences against the law, the judge thought that training was important in all areas where the law is applied in the context of the community. However, he considered that, in the absence of training, an openness to accurate and carefully considered information about a person’s culture could allow the purpose of section 16 to be served just as well.

In this case, the presentation of the submissions involved no change to normal court processes because they were presented by the defence counsel from the bar table.

The defence lawyer thought that there was an important learning process for the public and the legal profession associated with the use of cultural submissions in this case. An important part of this process involved a minority group sharing information about its practices and lifestyles, making them more understandable to the general public, and having them taken seriously by the courts.

For the judge, speaking generally, it was necessary for the judiciary to treat section 16 submissions carefully because of the potential for the case for leniency to be overstated and supported by appealing to cultural considerations which might not be quite correct. He did not advance this caution to argue that Section 16 submissions should be ignored, but to indicate that they should be heard and weighed carefully with all of the other evidence presented.

The offender was of the view that her lawyer’s cultural submissions had provided the judge with more information than he would otherwise have had.

The judge affirmed, in general terms, that information about cultural factors relating to an offence and an offender can help to identify circumstances which might justify the imposition of a community sentence where a term of imprisonment would otherwise be the most appropriate sentence. However, he noted that the information contained in section 16 submissions is usually also covered in pre-sentence reports, particularly when the writer is of the same ethnic background as the offender.

According to the defence lawyer, his cultural submissions were linked to on-going support for the offender.

Although the set of circumstances leading up to the offence were not unusual, according to the defence lawyer, he considered that the offender’s experience of the court process was itself likely to deter her from re-offending. He explained that the process was long and drawn out, and very stressful for the offender. During the process she had been very concerned about her future, thinking that she might be imprisoned, and wondering what would happen to her children. He considered that the offender’s family had pulled together to support her and had become aware of the pressure she had been under.

While it is unclear to what extent, if any, the use of section 16 in this case contributed to the lessened likelihood of re-offending, the defence lawyer suggested that it might have helped the offender in the process of reconciling her Samoan cultural beliefs with what is acceptable under New Zealand law.

He felt that her children were helping her in this process, as most of them had been born in New Zealand.

The offender felt that the process had strengthened her relationship with her family and her church because of the support she has received from both. She attributed this support to their understanding of her situation and recognition of her love and concern for her children.

The offender was satisfied with the way her lawyer had represented her and explained the cultural factors involved in the offence. Both the defence lawyer and the offender were satisfied with the sentence imposed. The offender was relieved that she had not been imprisoned, while the defence lawyer considered that the sentence of community service was appropriate in the circumstances.

Improvements suggested by informants based on their experience with Section 16

The defence lawyer said that one thing he regularly experienced was the need to educate judges, court staff, police, and lawyers about the cultural practices of the members of other minority groups he represents, to allow the evidence in those cases to be placed correctly in context.

For the judge, speaking generally again, there were two broad issues to be considered as part of any reform of section 16. These issues involved a choice between a provision which enabled a person to call a witness if he or she wanted to, or a provision which gave the court the ability to ask for a report. The advantages and disadvantages of these provisions were outlined by the judge, as follows.

The advantage of the first option would be that it could bring to the court, very quickly, informally, and at no cost to the court, information that could be helpful in determining sentence. The disadvantage of this option would be that it might not be used enough by the people who could benefit from it most. The advantage of the second option would be that it could ensure that everyone appearing before a court would be guaranteed the provision of this information because the court would arrange for it to be provided. The disadvantage of the second option could be that it would very rapidly become elaborate and very expensive. On balance, the judge thought that the present situation was probably the safest because, in cases where cultural factors are truly important, they tend to be identified either by the pre-sentence report, or by counsel, or by both, even when section 16 is not strictly used.

The aim of this discussion is to draw together the results which were reported separately in case studies seven, eight and nine. This discussion will cover the areas of: recruitment; characteristics of the three cases; problems associated with the use of section 16; and suggestions for improving the use and application of section 16. Although the case studies are the primary focus of this research and provide the main substance of this discussion, important information was also obtained during the recruitment process and aspects of this are discussed here, too.

Although there are no negative examples of section 16 use represented among these three case studies, it was clear from difficulties encountered during the recruitment phase that there were problems associated with the use of section 16 in cases of criminal offending by Pacific people in New Zealand. One problem which became evident during the case identification and recruitment phase of the research, and before any interviews had been conducted, were differences of opinion among judges and lawyers about whether or not section 16 had actually been used in particular cases. For example, the researchers were referred to cases thought to have involved the use of section 16, which the lawyers concerned agreed had involved the use of section 16, but which the presiding judges considered not to have used section 16. The judges came to these conclusions because cultural evidence had been submitted first as part of the defence and then simply re-stated prior to sentencing.

It also became evident that there was a degree of unwillingness on the part of Pacific lawyers to use section 16 because they considered that judges were most likely to interpret the submissions as attempts to excuse offenders’ behaviour. There was also evidence that Pacific community groups were not promoting the use of section 16 in cases involving their members and clients, even though they had information about section 16 on display. This was because they were concentrating on working with probation officers to provide cultural information to the courts through pre-sentence probation reports.

As far as the three cases studied are concerned, there was general agreement that they had involved the use of section 16. Despite this agreement, there were significant differences in the attitudes of the three judges to section 16 and the ways they used it. Case studies seven and eight were very similar in terms of the types of offences involved and the processes of mediation which preceded the use of section 16. It has already been noted that the same probation officer was involved in both of these cases and he was very active in facilitating the mediation process. Case study nine involved a different type of offence, an assault by a mother on her daughter, and no mediation process was involved.

In each of the three cases considered here, there was a high degree of satisfaction with the process and outcome of the use of section 16. It is significant, though, that guilty pleas were involved in each case, and each offender acknowledged his or her responsibility for their offending. In case studies seven and eight, the willingness of each offender to acknowledge responsibility, express remorse, seek forgiveness, and pay reparation was crucial to the processes of mediation between offender and victim which preceded the use of section 16. It is unlikely that the same results would have been achieved in either of these cases if the offender had pleaded not guilty. In such an event, it is unlikely that the victims’ families would have made submissions in support of the offenders that would have persuaded either judge to impose a non-custodial sentence.

The most compelling feature of case studies seven and eight is the way in which the use of section 16 was combined with the determination of reparation, in accordance with section 22 of the Criminal Justice Act, and the associated mediation between offender and victim, in accordance with section 23 of the Criminal Justice Act. In each of these two cases, section 16 submissions were made by members of the victims’ families in support of the offender. In neither case were the victims or their family Pacific people, and their positive submissions in support of the offenders were informed by the understandings of the offenders’ cultural backgrounds that they had obtained during the mediation meetings. It was the evidence of reconciliation and forgiveness reflected in these submissions that convinced the judges to impose non-custodial sentences. This was particularly the case with the judge in case study eight.

Case study nine was a different kind of case from the others and represents, perhaps, a more classical use of section 16 because the section 16 submissions were related directly to an aspect of the offending: the cutting of the daughter’s hair by her mother. According to the defence lawyer in this case, the act of cutting the daughter’s hair had been represented by the police as being a particularly malicious and calculated act which was, perhaps, worse than the initial assault. Had this representation been accepted by the court, it is possible that a custodial sentence would have been imposed (although this cannot be asserted with confidence because the judge concerned declined to comment directly on this case, as noted in case study nine). However, the lawyer was able to mitigate the significance of this act in the context of an assault charge, by explaining the significance of cutting a woman’s hair, in such a situation, in the context of Samoan culture.

While the successful use of section 16 in these three cases is ultimately attributable to the participation of those making submissions on behalf of offenders and victims, the process was facilitated and enabled by the openness and commitment of the judges, probation officers and lawyers involved. This is important because, although there are no case studies of negative experiences of the use of section 16 by Pacific offenders to inform this research, there is evidence that it is not used as often as it could be in cases involving Pacific offenders. As indicated earlier, the information obtained while identifying suitable cases suggests four reasons for this. These are associated with: (1) reliance upon the presentation of cultural evidence in probation reports; (2) section 16 not being clearly understood by probation services and community groups; (3) the perception of Pacific lawyers that judges are likely to view section 16 submissions as being offered to excuse offending; and (4) lawyers not offering the option of section 16 to their clients.

A number of suggestions for improving the application and use of section 16 were made by those participating in this research, and these are summarised below. The directions of these suggestions range from broadening the provisions of section 16 to make it more flexible, to measures designed to allow people to make more effective use of the existing provisions of section 16. Those arguing for greater flexibility were of the view that justice should be administered in the broadest possible way and be actually experienced as justice by those involved from all sides of any particular case.

Among those arguing for flexibility were: the judge in case study seven; the lawyer in case study eight, and the probation officer involved in case studies seven and eight. The judge in case study seven argued that the provisions of section 16 should be broadened to allow and encourage submissions which go beyond cultural features like tikanga or customs and allow any affected parties to speak on any aspect of the offender’s actions upon them. If judges allowed more time to listen to the views of those affected it would be easier for them to identify the most appropriate application of justice for each particular case. He emphasised his view that it was the function of the judiciary to do justice in each individual case, rather than to merely dispense justice according to the strict framework of legislation and precedent. The lawyer for the offender in case study eight was also of the view that submissions on matters other than cultural features should be permitted.

It is also clearly important that knowledge of section 16 be increased among all those involved in the criminal justice system, and that they be encouraged to be proactive in encouraging its use. In line with this, the probation officer involved in cases seven and eight recommended 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. Such a culture would also encourage the participation of those lawyers who were concerned that use of section 16 submissions might be counter-productive or, at best, a waste of time.

Case studies seven and eight have illustrated how effectively section 16 can be applied in conjunction with emotional harm reparation processes. The probation officer responsible for initiating and facilitating these processes in those cases recommended more frequent use of emotional harm reparation processes by the courts in addition to the provision of victim impact statements. In his view, the courts were 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 both cases.

The judge in case study eight argued for the implementation of measures designed to allow people to make more effective use of the existing provisions of section 16. To achieve this she suggested the preparation of guidelines to help them make their submissions relevant to the sentencing issues that judges must consider. If this happened, she argued, 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.

These case studies highlight a number of issues concerning the roles of legal professionals in the application of section 16 as well as issues for offenders and victims. In this concluding section, the roles of judges, lawyers and probation officers are discussed with reference to their contribution to these successful applications of section 16. In turn, these successful applications of section 16 are linked to the sense of closure experienced by offenders and victims in these cases. The final point to be made in this section is the fundamental importance of legal professionals being receptive to the different ways in which events can be understood according to the cultural perspectives from which they are viewed.

The role of the judiciary in fostering the use of section 16 is particularly important because of the power judges have to interpret, and accept or reject, culturally-based submissions and evidence. Although all of the judges involved in the three cases considered in this research were open to the submissions they received, they had different degrees of personal exposure to the issues of cultural difference which were raised in these cases. This meant that the bases upon which they dealt with the submissions varied. For example, the judge in case study seven had family connections into both Māori and Pacific communities and had been brought up in a Māori setting. As a result of this he was already familiar with the cultural factors and issues involved in both the case and the relationship which developed between the families of the offender and the victim. In addition to this, it enabled him to grant the members of the victim’s family a considerable degree of latitude in presenting their submissions. By contrast, the judge in case study eight did not appear to have had the same degree of exposure to Pacific or Māori cultural perspectives.

Although the end results in these particular cases were similar, the greater confidence of the judge in case study seven enabled him to view the provisions and application of section 16 much more broadly and creatively than was possible for either judge in the other two cases. In order for members of the judiciary to be similarly equipped to assess section 16 submissions, it seems desirable that the further development of section 16 be accompanied by specific training for members of the judiciary in areas such as the assessment of cultural evidence and the impact of cultural factors in the commission of offences against the law.

As the offender’s first point of reference in the court process, defence lawyers have an important responsibility to bring section 16 to their clients’ attention and work with them to ensure that they are able to make the best possible use of its provisions. Probation officers are also well placed to promote its use and, when they are involved in facilitating mediation processes between offenders and victims, are able to involve victims and their families in the section 16 submission process too. It is clear from issues raised during the recruitment phase of this research that some lawyers do not advise the use of section 16 submissions because they do not expect judges to take these seriously. This is a perception which will be dispelled if judges demonstrate their commitment to section 16 by openly encouraging and facilitating the presentation of submissions.

As these case studies demonstrate, it is also important that victims be afforded the opportunity to participate in the section 16 process. In the cases discussed, victim participation was facilitated by the probation officer responsible for preparing the emotional harm reparation report and the associated mediation process. While probation officers in such cases are well placed to facilitate the participation of victims and/or their families, alternative means should be found for facilitating this in cases which do not bring victims and probation officers directly into contact.

The involvement of offenders and victims in the judicial process through emotional harm reparation processes and section 16 submissions had been shown, in case studies seven and eight, to benefit both parties. The key to this benefit was the creation of a relationship between the two parties and their respective communities where none had existed before. The creation of this relationship resulted in a sense of closure being experienced by the participants in each case, which would not have been achieved without the creation of these relationships and sense of mutual understanding.

While it is not possible to generalise from such a small number of studies, the cases considered here have identified the crucial contribution to the successful application of section 16 that professionals in the legal, judicial and probation fields can make. These studies have illustrated that legal professionals have been most able to facilitate the process of applying section 16 when they have been open to, and aware of, cultural difference and the possibility that any particular action can be imbued with a different meaning and significance according to the cultural framework from which it is observed, as well as in terms of the cultural framework from which it is perpetrated. In view of their pivotal roles in the court process, these professionals carry a significant burden of responsibility for facilitating the effective use of section 16.

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

Use of section 16 by Pacific Peoples:

case studies seven to nine