Foreword | Acknowledgements | Tables | Executive Summary | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Glossary | References | Appendices
Tony Waldegrave and Kiri Simonsen
Ministry of Justice
This chapter presents two case studies, one involving a New Zealand European offender, and the other involving a Japanese offender, that were completed by Ministry of Justice researchers.
5.1 Methodology
The cases selected for the study were obtained from surveys where respondents indicated that they were aware of cases where section 16 had been used, and were happy for researchers to contact them about these cases. As a first step researchers contacted the survey respondent. This was either the defence lawyer in the case or someone who could refer researchers to the defence lawyer for the case. Each defence lawyer was asked if they would act as an intermediary between researchers and the offender. A detailed consent process, designed to respect their privacy and other rights as research participants, was undertaken in each case. Offenders’ consent to be contacted about the research and for the research to be conducted was obtained via intermediaries.
The offender’s lawyer was sent an information pack about the research to pass on to their client. The pack included a project information sheet (Appendix eight), a sheet answering some questions about the research (Appendix nine) and a consent form (Appendix ten). Researchers informed the potential participants, before their involvement in the research, about:
The consent form asked for the offender’s consent to several different issues:
The interview process
Interviews were arranged once the consent of the offender was obtained. In both cases the offender declined to be interviewed, but agreed for their case to be the subject of a case study. They consented to researchers interviewing their families, lawyers, the Judge, and the person who spoke on their behalf. Where possible, the family of the person before the court was interviewed first. This provided a context for the case so that when talking with the judge and the lawyer, Ministry researchers were clear about the details of the case. Interviews took place at a location convenient to the interviewee, and varied in length from 30 minutes to 120 minutes. Semi-structured interview schedules were used to guide the interviews. Interviews were audio-taped with the consent of the participant. Care was taken that information was not passed from one participant to another during the course of interviewing for the data collection of the case study.
Documenting the case studies
The information sources for the case studies were semi-structured interviews, sentencing notes, pre-sentence reports, and written submissions.
Confidentiality of participants was an important consideration in this research. Researchers were careful not to use the actual names of the people involved and ensured that no identifying details were included in the case study report. Researchers discussed with each participant the possibility of cases being identifiable, especially to criminal justice professionals in the area where the case was heard, due to distinctive characteristics of the cases. Drafts of the written case studies were sent to participants who requested them.
5.2 Case study ten
Background
Introduction
The offender in this case study chose not to be interviewed, but agreed for her case to be the subject of a case study. She consented to the researchers interviewing her lawyer, the judge in her case, and her mother (who made the section 16 submission). For reasons of anonymity, the offender is referred to as P throughout this case study.
Background and details of the offence
P was a young Pākehā woman. She had no criminal history prior to this conviction. She is the eldest of three children. As a child P had lived overseas with her family. P was in her teens when her parents unexpectedly announced their separation and that their mother intended to return to New Zealand with the children. P spent a year in New Zealand but was unhappy and returned overseas to live with her father, leaving her mother and younger siblings in New Zealand. P completed her schooling at a private school, but often felt depressed and appeared to have suffered an emotional reaction to her parent’s separation. In 1997 P developed a genuine state of clinical depression and she began to use LSD frequently as the year progressed. It was during this time that P was involved in an accident while driving her father’s car. It was not P’s fault but she blamed herself and it was shortly after this accident that the offence occurred. P was referred to a psychiatrist but continued to feel depressed. At the time of the offence P was thinking of her forthcoming trip to New Zealand and the fact that she may have needed to use LSD at that time. She sent 20 tablets of LSD to a post office box in New Zealand with a false addressee name and false sender’s name. New Zealand Customs intercepted this package. New Zealand Customs and the New Zealand Police identified P as the sender of the package. P did not tell anyone of her actions and she reports that her thinking at the time was quite irrational.
In 1998 P decided not to use LSD any more and it was at that time that her family noted an improvement in her mental and physical state. P also felt she had to return to New Zealand and confront the consequences of her actions. On entering New Zealand P was spoken to by Customs and the Police, and charged with the offence. P expressed remorse and regretted the anxiety and distress she had caused her family and friends. P also realised the effect a criminal conviction could have on her future career.
P was charged with, and convicted of, importing a Class A drug for personal use. Due to the seriousness of the offence, the case was heard in the High Court. P received a sentence of 100 hours of community service.
Initiating section 16
Arranging the submission
P’s lawyer and the person who made the submission (P’s mother) reported that it was P’s lawyer who broached the idea of making a section 16 submission. P’s lawyer expressed the view that when taking on a new case he looked at how section 16 might be used in the case, as it was his opinion that a Judge would be more affected by a plea made by a family member.
In this area where we’re mainly talking about drugs or sexual offending, other offences as well, invariably I look at section 16 and think now how is that going to help us. And often, and this is a simple premise, a judge will, in my view, frequently be more affected by, in terms of mitigation, a plea by a family member or a member of the whānau, just some one that can put a human element onto it. (P’s lawyer)
P’s lawyer suggested that her mother make a submission, as she was used to speaking in formal situations and was very articulate. It was left to P’s mother to decide what she would be presenting in the submission. P’s lawyer checked the content of the submission before it was made.
The day before sentencing P’s lawyer advised the court and the judge that a section 16 submission would be made and provided the material that would be spoken to. P’s lawyer felt this was an important part of the section 16 process as it allowed the court to extend the period of time provided for sentencing.
I advise the court so that they extend the period for sentencing, because frequently, and wrongly I might add, they treat sentencing as something you can get over and done with early on and get on with commercial issues. So I let them know and give them all the material we are going to rely upon and case and reference the day before. For example ‘these are the references provided by her and here is a break down of what [P’s mother is] going to say to the court’. (P’s lawyer)
The use of section 16
Making the submission
At sentencing P’s lawyer requested the judge hear a section 16 submission and asked whether he would like to hear the submission, or counsel, first. The judge indicated that he wished to hear from counsel first, followed by the submission.
When it came time for the section 16 submission to be made, P’s lawyer turned to P’s mother to indicate that it was time to come forward and speak to the court. The submission lasted for three to five minutes.
The content of the submission
P’s mother explained how her daughter’s depression and withdrawn behaviour had resulted from family problems over the last few years. P’s mother also discussed the family’s relief at the discovery of the offence, as it meant that the family had been able to "get through to [P]" and make progress with her recovery. P’s mother also mentioned that the family realised the seriousness of the offence, that P had sought help for her drug use and was now making a slow but progressive recovery. Finally P’s mother mentioned P’s ability to relate to children and the future career path that her daughter hoped to pursue.
P’s mother and lawyer thought the judge listened to and received the information well. However, it was explained that the section 16 submission needed to be placed in a context of all the other factors presented, including P’s lawyer’s submission to the judge and the numerous written submissions made about P’s character. Approximately twenty family members had came to court to support her. P’s mother thought these factors supported and complemented the section 16 submission.
The effect of section 16
P’s lawyer and P’s mother thought that the section 16 submission and written submissions contributed to assuring the court that P had sought help for her problems and that she had on-going family support. P’s mother felt that the submission also gave the judge confidence not to order a term of imprisonment.
It was another building block to give the judge confidence not to order a term of imprisonment. To give them the confidence to impose the sentence that was appropriate and in the end we all think that he came to the appropriate decision. (P’s mother)
A sentence of 100 hours community service was imposed.
Reflections
P’s lawyer reported that he broadly interprets section 16, and thought that the information presented fitted within the category of family background. Initially the judge did not think the submission really came under the umbrella of section 16 because he interpreted the section as being related to cultural and ethnic background. Nevertheless, the judge allowed P’s mother to speak.
I really didn’t apply in my mind so far as I could remember as to whether this was a case, which came within section 16, as to ethnic and cultural background because my attitude on sentencing is that, subject to not being abused, I welcome any constructive information relating to the circumstances of the offender; and the circumstances under which the offender committed the offence is relevant to the question of the assessment of the appropriate penalty. And I have in many cases, where somebody, a friend, or somebody’s wanted to speak from the floor of the court where I have considered it appropriate, said ‘yes’. Because they can actually confirm or amplify aspects which are raised in the pre-sentence report. So perhaps I may be a little more flexible than many judges who might decline to hear any statements from people other than the lawyer from the floor of the court. (Judge).
On closer examination of the section the judge realised that the section could allow for submissions relating to family background.
[The judge reads from the act] It’s interesting isn’t this, the section heading says "offender may call witnesses to cultural and FAMILY background" but the actual section itself says "subsection two: the matters to which a person may be called to speak under subsection one are broadly the ethnic and cultural background of the offender" and that’s not necessarily the same thing as family background is it. It’s an interesting point because in my case it was certainly family background, but not really ethnic or cultural background. (Judge) [Caps denote emphasis]
P’s mother suggested that her previous experience with the justice system might have had an impact on her level of comfort in making a submission.
It’s easier because we know how to write things, [and] say things, so you know the whole access to justice thing is easier for us than for some people that don’t have the same ability with the written word or spoken word. And even though we are familiar with the court it is still an overpowering and very emotional experience for us. (P’s mother).
P’s mother’s knowledge of the justice system also meant that she was able to make an effective submission.
But I also know that you make your point in the first sentence. You can speak for ten minutes, you can speak for half an hour, or you can speak for three minutes; it’s only the three minutes that count really, so I’m not here to waste the judge's time and start going on and on about what a wonderful girl she is and everything else. (P’s mother)
P’s mother reported that being able to participate during the sentencing process assisted P and her mother to deal with the court experience. P’s mother suggested that without the opportunity to participate, the sentencing process might have been a frustrating process:
[P’s lawyer] also knew that [I] would appreciate some involvement in the process because then I just wouldn’t feel like, you get very frustrated being part of the criminal process because you’re such a passive factor in it all. You’ve got no influence in it. I’m used to being able to influence things or being able to have some control over things, and then you’re just swept up into this process you feel very inadequate and it helped to have some involvement. (P’s mother)
All participants were satisfied with both the way the submission was made and how it was received:
We were extremely grateful for the chance to be involved. (P’s mother)
Research participants were not in favour of narrowing section 16 and thought that it would be unfortunate if the provision was only for Māori, Pacific Peoples and ethnic minority groups.
I think if I had been told that there was a section, but it wasn’t available to me because it was only available for Māori say, I won’t agree with that. I don’t think there is any logical ground for that because we all have family. (P’s mother)
5.3 Case study eleven
Background
Case background
This study focuses on the use of section 16 in a case that involved three Japanese offenders and a Japanese victim. All of the offenders and the victim were under the age of twenty, and all were part of the same local Japanese community, at the time of the offence. Although many of the issues discussed in this study apply to all three offenders, it is restricted in focus to one of the offenders and the presentation of information to the court on his behalf. The pseudonym J will be used to refer to the offender throughout.
J’s mother was Japanese and his father was a New Zealand European. J grew up with his family in Japan until he was 16 years old. His family then moved to New Zealand. Since coming to New Zealand he attended secondary school then studied at university. The incident in this case occurred when J was seventeen. When the case was heard he was twenty.
The District Court judge’s notes on sentencing outline the established facts of the case and show the basis on which J was sentenced. There were three separate incidents. On the first occasion J, in the company of one of his co-offenders, demanded $700 from the victim, as a payment for some shoes. On the second occasion, which was two days later, all three offenders were present. The offenders were said to have bullied, committed minor physical assaults on, and demanded money from, the victim. On the third occasion, J was alone and demanded more money from the victim.
During the early stages of the court proceedings J’s parents were not aware of the trouble their son was in. When they did become involved there was little they could do to avoid a guilty plea. In dissatisfaction at both the process, and the legal advice that their son had received up to that point, the parents dismissed their son’s lawyer and found another.
The new lawyer and family focused on the opportunity to provide information in mitigation of the offending, at sentencing. J, like the other offenders, had no previous convictions. During the hearing he had offered his apologies to the victim and offered to pay reparation. He was found guilty of two counts of demanding with menaces.
His pre-sentence report identified him as an equal participant in the offending and recommended he be ordered to pay a fine and reparation. Defence counsel invited the court to consider a discharge without conviction. He was sentenced to six months imprisonment suspended for two years, reparation, and a fine.
The family and lawyer appealed the sentence. On appeal, the High Court judge quashed the suspended sentence, imposed community service, and upheld the orders to pay a fine and reparation.
Case study informants
J declined to be interviewed but agreed for his case to be the subject of this case study. He provided his written consent for researchers to discuss his case with his supporters and to consult relevant case documentation.
Five people contributed information to the study in four separate interviews. These were: J’s parents; his second lawyer; the person who made the section 16 submission; and the High Court judge who heard the case on appeal. The District Court judge was not available to contribute her perspective.
Initiating section 16
The need to use section 16
The timing through which J’s parents became aware, then active, in their son’s defence, was integral to how section 16 came to be used in this case. The parents found out about their son’s situation through a friend, who read about the case in a newspaper and rang them to express her sympathy. At this point a full confession about the offending had already been made to the police and the parents were unable to avoid a guilty plea being entered. The offender’s father explains the position they found themselves in to be able to assist their son:
…our hands were tied, so at that point we had to decide how best to try to diminish what was likely to happen in the sentencing. (Father)
Informal discussions with people who had been involved in the case to that point revealed three main issues that had not been raised in court but that the parents believed mitigated the offending and justified lenient treatment by the court.
1. J’s parents believed the offenders had behaved according to Japanese custom.
…once we’d talked to our son, and found out more about the situation, it became clear to us that what had occurred was very much a Japanese cultural situation…(Father)
Through their son’s description of events the parents recognised an expression of Japanese values in the commission of the offences. During interviews with the parents and spokesperson they frequently stated that Japanese society is much more conformist and hierarchical than New Zealand society. Their perception was that the offending had been motivated by these values, and the related values of ‘giri’ (duty) and ‘Kohai-senpai’ (hierarchical relationships).
2. The judge who heard the case on appeal summarises how these issues were presented at the District Court sentencing:
It was said that the victim had not respected them as their elders, had behaved in a [demeaning] and irritating [way], and that he needed to be taught a lesson, and that the Japanese way to teach him a lesson was to inflict some kind of punishment on him. In the judgement it was referred to as ‘the nail that sticks out gets hammered down’, and that’s all they were doing, so they said. And that, because it was only amongst Japanese boys, and it was a Japanese problem, dealt with in the Japanese way. (Appeal Judge)
3. In Japan this case would not have been dealt with by the courts.
The parents believed that because, from their perspective, the incidents were minor, understandable from a Japanese point of view, and involved Japanese offenders and a Japanese victim, that they would not have been dealt with by a court, if they had occurred in Japan. They explained that if an incident like this had been reported to Japanese authorities it would have been referred back to the families for resolution.
…it wouldn’t have gone to court. That kind of thing would never go to court in Japan. (Spokesperson)
4. Quality of legal advice.
The parents said that they were surprised to realise that the court had not been made aware of the Japanese interpretation of the offending prior to their involvement. They, and the spokesperson, felt the legal advice received to that point had been poor.
…there were aspects of the case that have never been dealt with well, which with adequate representation they could have been used to have defended a not guilty plea. (Spokesperson)
The parents chose to relieve their son’s lawyer of his responsibilities and appoint someone to concentrate on the presentation of the Japanese perspective, where further opportunities were available:
…when we went to meet with [counsel] that [the cultural situation] was one of the things that we emphasised very strongly to him ……we talked with [counsel] about how we could introduce that and what scope there was for introducing it. (Father)
Deciding to use section 16
Counsel explained that he decided to use section 16 because by the late stage he and the parents became involved in the case, his options for defence were limited.
…it seemed to me that we couldn’t plead not guilty because he had made a full confession… So my advice was to plead guilty and to ask for mercy, and one of the ways I thought of doing that was to argue the cultural context in which this occurred, to use section 16 as a support for that argument…(Counsel)
Deciding how to use section 16
Although counsel identified section 16 as a way to present the cultural issues, he was not entirely sure of how it should be used:
It wasn’t quite clear how to deal with section 16, whether to do it by way of submissions from me, whether to do it through someone just speaking from the floor of the court, or whether to do it through a witness giving sworn evidence on a usual basis where they are open to cross examination; and it seemed to me that we got most mileage out of having someone actually give evidence in a formal way, being sworn to tell the truth then being open to cross examination. (Counsel)
Counsel’s decision to call an expert witness, who was open to cross-examination by the prosecution and the judge, is an unusual way to use section 16. Counsel however insisted that this method of submission was appropriate, particularly in this case:
This is all at sentencing. Although I’ve seen it done before, I mean there’s absolutely no reason why you can’t call evidence at sentencing; it’s not done very often but it is done on occasions that you call evidence on sentencing for whatever reason. (Counsel)
I repeat that this case, if ever there was any case ever where section 16 was appropriate, then this was that case. (Counsel)
Finding a spokesperson
J’s parents realised that their perspective would not be seen as objective, so sought a spokesperson who offered, to bring neutrality, expertise, and an ability to speak convincingly in court:
…we felt we had a biased perspective if you like, and what we really wanted was someone who could be perceived to be independent and also with a bit of a reputation. (Father)
Similar concerns guided counsel’s approach to finding an appropriate presenter:
…in the present case it seemed to me that it was not appropriate to call [the offender] [to speak] because he really couldn’t talk in an objective way about the mores and cultural values of Japan, in a way that an independent person could … and for obvious reasons it wasn’t sensible to call [his mother] because she was so distraught about the whole process. (Counsel)
A suitable presenter was found through a series of phone calls between family, friends and other contacts:
I had a phone call from [the supporter] volunteering his support because he was concerned about what had happened and he wanted to know if he could help and he told me a little bit about Japanese culture. (Counsel)
Counsel said, after having spoken with [the supporter], he felt that [the supporter] had a good feel for the whole issue and felt that it would be useful for us to, if you like, have an expert witness to come and sort of testify. (Father)
Preparing the speaker
The interviewees did not indicate that there was a need for significant preparation of the spokesperson before the sentencing. As previously mentioned, considerable effort had been put into finding someone who could identify with the Japanese perspective of the offending circumstances, and speak authoritatively about it in court. This, and the style of submission selected by counsel, possibly negated the need for detailed and consultative preparation. The spokesperson explained simply:
I was asked to come and address the court on culturally-mitigating circumstances. (Spokesperson)
Counsel notified the court two days before sentencing of his intention to request the court to hear a submission under section 16. At sentencing however, the judge was unaware that counsel intended to do this. It was apparent to counsel that this caused some frustration for the judge:
I stood up and said I was proposing to call evidence. The judge said that she knew nothing about that, and it was a total surprise to her, so then I had to tell her that I’d spoken to the court, and had to try and calm things down a bit. (Counsel)
Time constraints
In response to counsel’s request for the court to hear the spokesperson, the judge stood the case down until later in the day. Counsel sensed that this inconvenience, in the context of a busy schedule, did not bode well for things to come:
And she had a huge workload on that day already, so then we stood my case down until the afternoon… it just all got away to a bad start. (Counsel)
The use of section 16
Familiarity with section 16
Counsel was of the view that the judge was unfamiliar with section 16:
… she was not aware of section 16 of the Criminal Justice Act, I actually showed it to her so she could see what I was talking about and what I was wanting to do. (Counsel)
Submission process
The spokesperson recalled counsel making the following type of introductory statement before he was invited to take the stand:
…under this section I think there are culturally-mitigating circumstances and as a consequence I’d like to call so and so, who because of x y z, for these purposes is an expert witness. (Spokesperson)
Counsel had this to say about the submission process:
…he gets sworn in as a witness, and then I just walk through various points with him. I then make a written submission to the court after he had given his evidence…then the judge made her sentencing remarks, but you’ll see in the evidence that the court asked (the supporter) some questions and so did the police, they cross-examined him as well. (Counsel)
From the spokesperson’s point of view, his role in the submission process was somewhat passive:
I just did what was asked of me…and just appeared and when was asked questions tried to answer them to the best of my ability. (Spokesperson)
J’s parents, while present at sentencing, were not directly involved in delivery of the submission. The father’s perspective differs significantly from the perspectives of those who were directly involved in making the submission, but offers some insight as to the parent’s contribution:
…my recollection is that counsel had basically prepared some comments based on his discussion with us that covered a lot of the issues that my wife raised here, but that was largely in a verbal form, although I think he gave a copy to the judge during the hearing process. (Father)
Content of the submission
In this case, section 16 was used solely to present information in mitigation of the offending. The submission maintained a general focus on Japanese societal and cultural norms, and more detailed focus on the values that were thought to have driven the offending. The submission did not include information about the possible use of alternative sentencing options, or information about on-going family or community support for the offenders. Counsel explained that the broad focus of the submission was upon:
…the cultural and societal practice in Japan. (Counsel)
He offered more detail about how the spokesperson explained what he believed would have happened if the offending had occurred in Japan:
… one of [the spokesperson’s] points that he was making, that it’s hard for a nation of individuals to understand Japanese society which is a nation of conformists; and it’s not necessarily approved what happened, but it is recognised that it can be dealt with in that particular way; and what would happen afterwards is that the parents would then get together and there would be apologies and counter apologies and the kids would be told off in a very firm sort of a way; but it would be dealt with inside a family structure rather than go to court. (Counsel)
When asked about the content of his submission, the spokesperson highlighted the Japanese values that he believed would have motivated the offenders, as Japanese, and as peers of the victim:
…those three boys would have seen themselves, at least in part, as doing their cultural duty. (Spokesperson)
…they would have been seen as saying to that boy ‘look if you carry on like this you can’t live in Japan; you’ve got to be able to go back to Japan, you have to behave, and we’re here to kind of frighten you and punish you. (Spokesperson)
How the submission was received
J’s father thought that a number of factors combined to affect how the judge received the submission:
…Then, because of all the delays we ended up being last on the court list for the day, and she [judge] was probably tired… and she’d said in the morning session when we got it deferred that he’d [supporter] only wanted to talk for ten minutes or so, but it actually went on for quite a while. [Counsel] asked him questions, then the Police guy jumped in; and I didn’t time it, but it probably took 25 or 30 minutes…(Father)
The spokesperson felt that the judge did not receive his submission well. He felt that her responses, comments and questions from the bench conveyed that she wasn’t going to give his submission a great deal of credence:
…[the judge] was clearly displeased that she was being required to listen to this stuff at all, made her displeasure very, I mean was tutting, looking heavenward, was very much in support of the prosecuting counsel, said this is just simple thuggery and if we set this kind of argument we are going to get Islanders beating up their wives and coming in and claiming cultural clemency, that kind of stuff. I thought pretty outrageous but that was the tenor of the proceedings and it was very clear to me that justice in cultural terms was not going to be done, that this was very much a case of Pākehāa sort of Kiwi law saying thank you very much this is our society, when you come and live here you do what we say and you behave the way we think is appropriate and there’s no mitigating circumstances. (Spokesperson)
Counsel felt that the judge’s questioning indicated that she did not fully understand part of the submission:
… [the spokesperson] went through his evidence; he could only talk in general terms; he couldn’t talk about this offence obviously; he just talked in general terms. The judge misunderstood what he was actually getting at; he was talking about pressures to conform in Japanese society, and she said to him at one occasion ‘you’re obviously referring to the tall poppy syndrome’ and he said ‘no, I’m actually not referring to that at all’. (Counsel)
On several occasions during the interview with J’s parents, they explained that they had taken offence at the way the sentencing had proceeded, and particularly at how the judge had received the submission. J’s mother interpreted the judge’s response as being anti-Japanese. She felt the judge was unable to understand the cultural differences being presented:
…this case is all Japanese, and she [judge] doesn’t know anything about Japanese culture or background but she’s so angry in court, she is very angry so …we can not receive truth, because I don’t know why she is so angry, maybe because we are Japanese, so angry. (Mother)
J’s father stated that a vehement cross-examination of the spokesperson by the police prosecutor heightened his wife’s sense of alienation:
…we were also appalled by the way that the police guy asked his questions…he was just unbelievably aggressive and quite unpleasant, I thought, which was unnecessary. I mean here’s [what is] supposed to be a court of law with civilised people, and again that intensified in my wife’s thinking that there was a real sort of anti-Japanese or anti-Asian slant to the questions. (Father)
Unfortunately no prosecution or judicial perspective was available about how the submission was received. During sentencing the judge expressed her gratitude to the spokesperson for his submission.
Sentence received
Counsel had proposed that J be discharged without conviction under section 19 of the Criminal Justice Act. The probation report had recommended J receive a fine and order for reparation. J received a sentence of six months imprisonment although this was suspended for two years. He was also ordered to pay reparation to the victim and a fine.
The District Court judge’s remarks on sentencing present her interpretation of the offending circumstances, the relevance of the information presented in mitigation of the offence, and other considerations germane to the sentence she imposed:
All defendants have admitted that there was an element of planning involved in their dealings with this boy. It was therefore deliberate. It involved stand-over tactics and bullying. The Court is told that the plan was to teach the boy his place and on the evidence that I have heard from [spokesperson], under section 16 of the Criminal Justice Act, it seems that there are significant cultural differences, and I am grateful to the [spokesperson] for explaining those to the court. [The spokesperson] said that the boys could arguably be said to be acting responsibly and with due cause in order to get a younger person to comply with certain behavioural norms. [The spokesperson] said that the importance of conformity could explain the way that these defendants behaved, but [the spokesperson] significantly accepted that it did not excuse their behaviour. He said also that Japanese society does not condone bullying. What he said was different between Japan and here, was that such conduct in Japan would be dealt with socially or between the families rather than through the courts.
While the defendants are present in New Zealand, they are all subject to New Zealand law, just as the complainant in this matter is subject to New Zealand law and entitled to its protection. If there has been a complaint to the police in New Zealand, then the law must pursue its normal course in this country, whatever might have happened if this behaviour had been carried out in some different forum.
I take into account in dealing with sentencing that while the defendant’s initial intention may be explained by their cultural background, it would not excuse their behaviour beyond speaking to him about what they saw as his sins. These incidents were bullying. There were three against one, it was cowardly behaviour on the defendants’ part, and they chose a vulnerable victim alone in this country, and younger than them.
In my view a sentence of imprisonment is appropriate. I make allowance for any cultural differences, for early pleas of guilty, for previous good records, and for the apologies, which have been given to the court this afternoon. I sentence each of you to six months imprisonment … … The sentence of six months imprisonment I have imposed will be suspended for a period of two years. (Judge’s sentencing notes)
The effect of section 16
There were quite diverse perceptions about the effect of the section 16 submission on the sentence:
She simply paid lip service to section 16 of the Criminal Justice Act, acknowledged it was there but said that this was not appropriate and as I was saying ended up with a sentence of imprisonment. (Counsel)
The judge considered it (the section 16 submission) and rightly said, ‘well I put it on the scale but you’re not getting discharged without conviction; these were bad crimes in a sense of terrorising the young boy’. And I agreed with it. (Appeal Judge)
Appeal
The offender’s family and counsel took the case to appeal. They argued first; that in sentencing the offenders to a suspended sentence, the Court had failed to achieve parity, because two of the offenders were now in Japan; and secondly, that the judge had failed to take into account information that was submitted under section 16. Counsel again submitted that discharges without conviction or conviction and discharge were proper outcomes.
The High Court discussed section 16 in some detail and reached the following conclusions: (1) those who choose to live in New Zealand are required to conform to New Zealand law, (2) cultural customs in Japanese society which might condone or permit bullying or physical discipline of younger men, do not permit theft or extortion by threats, (3) the victim, resident in New Zealand, was entitled to the protection of New Zealand law, (4) the appellant did not act solely because of his cultural heritage, and, he would have understood the requirements of New Zealand law, (5) the culpability of the offenders was not diminished by any cultural features, however, (6) the cultural influence involved in the offending should properly be taken into account in mitigation.
The High Court held that the District Court had not ignored the cultural matters, but that factors such as the age of the offenders, their blameless records, remorse and apologies to the victim, and the cultural influences which may have shaped part of their behaviour, meant that a term of imprisonment would not normally have been imposed in a case like this.
Counsel explained his approach at the appeal stage:
I’d run through the same argument with him, that this was a culturally-explicable offence and you had to run through it with Japanese eyes to actually place a proper value on it. (Counsel)
And the response they received:
…at the end of the day [the High Court judge] probably looked at it through New Zealand eyes but recognised that it was not an imprisonment type offence. It was better dealt with at a lower level, by fine or by community service. (Counsel)
The spokesperson felt the judge paid some considerable attention to the appellants’ submissions regarding the information submitted to the District Court under section 16, but ultimately did little further than the previous judge to take this into consideration:
I think he was doing his best, I think he had read everything very clearly and carefully and was listening very carefully. My feeling was he still didn’t understand the cultural complexities of the issues and was still running with things through that western cultural filter. Now there is a case for saying there are these laws and they apply and we don’t care whether you claim cultural clemency or not, this is still a crime, this is the punishment. It’s usually put in terms of the ‘slippery slope’ or the ‘give an inch take a mile’ theory. You start making allowances for them and you’ve got anarchy and chaos within a week and every ethnic group claims immunity from prosecution for some sort of crackpot reason, I mean that’s the argument you tend to get and I don’t think he was free of that sort of feeling. (Spokesperson)
He said there was nothing else the District Court judge could have done in terms of acknowledging the information, and that she’d acknowledged it in the sense she said that they don’t have any previous convictions and I have heard the cultural information. (Spokesperson)
The appeal judge explained the information that was presented to him and how he took it into account in his decision:
…I did receive some written material, affidavits, from friends of the family of the accused who were experienced in assessing cultural things, and it was a New Zealand person [spokesperson] who presented this through counsel to say ‘look this is the Japanese way and therefore they’re not really guilty’. And all I could say was they pleaded guilty, that’s the first thing, and that they had to have some punishment; but not necessarily that which you might have imposed on some other offender depending on their background, previous convictions and so forth. What actually I did was impose the sentence that would properly have been imposed upon any first offender of that age who’s not going to offend again for that type of crime. And I can understand the District Court judge said ‘this is really bad and you’re going to prison but I'll suspend it’. (Appeal Judge)
In [name of case] I discussed it all but in the end said no, they deserved to be sentenced as though they were anyone else in society. (Appeal Judge)
When asked how helpful the information was the judge replied:
Well it was helpful, just so I could understand the big picture – in the end it didn’t help appellants in terms of getting discharged because of other factors, but it enabled me, for example, the fines that the judge imposed on the boys were paid by the parents of the boys and I said I suppose that’s the Japanese way and that the parents would in time exact their own punishment on their children, and I'm sure they would, and I was able to incorporate that into my sentencing notes. (Appeal Judge)
Other issues
The case study interviewees not only provided rich information about how section 16 was used in J’s case, but also offered their perspectives about usefulness of section 16 more generally. Counsel and the spokesperson outlined some of the dilemmas that section 16 raises:
Section 16 has a real tension inherent in it, because on the one hand you’ve got people saying, if you come to New Zealand you have to conform, you have to accept our way of doing things, you have to obey our laws, or on the other hand you have section 16 which says that in appropriate cases you can take into account cultural differences. Now how you actually square that circle is the real difficulty. (Counsel)
I think it’s a real problem for societies that want to be, in fact have an obligation to be, culturally tolerant and where do you draw the line, and is there a line you draw, or is there just a zone of tolerance you explore each time? I mean in some places they have parallel court systems and you can choose which court system you want to go in. (Spokesperson)
Counsel felt there was no need for change to the section 16 legislation but that some attention from judges to how it is used in differing circumstance could result in improvements:
I think the legislation is an entirely appropriate provision to have on the statute books. It’s the way that it’s used that is the difficulty and it may be appropriate for judges to have some discussion about section 16. (Counsel)
Counsel also felt that education of potential users could improve use of the provision:
I think it’s a question of not changing the law, but educating people into the circumstances in which it might be appropriate to use it. (Counsel)
The judge on appeal explained how section 16 could be used to assist the court more generally, explaining that a judge could call for relevant cultural information to be submitted at sentencing. This was likely to happen in more serious cases and particularly those heard before a jury. He explained that his requesting of the information, in the open court, could sometimes be for the benefit of a jury:
…so the jury could understand that the sentencing process is not just automatic pulling of a lever and putting up the numbers. (Appeal Judge)
The appeal judge expected that due to the sheer volume of cases, section 16 submissions may occur more frequently at the District Court, although he thought this may vary according to the cultural make-up of a region.
5.4 Discussion
The following discussion highlights issues in the case studies that provide insight as to how section 16 can be more effective. The discussion focuses on: reasons for use of section 16; quality of representation; notifying the court; quality of submissions; style of submissions; systemic issues; changes to the legislation; and changes to the context.
Reasons for use of section 16
The two case studies showed that section 16 can be used to present distinctly different types of cultural information, and can be used for people of European or non-European ethnicity. In case study ten, section 16 was used to present family background information for a young New Zealand European woman. In case study eleven, section 16 was used to present a cultural interpretation of the offending of a young Japanese man.
In both cases the offenders’ offending circumstances were relevant to the decisions to use section 16. In both cases the offenders had no prior convictions and were convicted of reasonably serious offences that could have resulted in lengthy imprisonment sentences. These circumstances present two significant incentives to present information about the cultural background of the offenders under section 16. First, a lack of prior convictions may mean that information about the cultural background of the offenders would be new to the court, and possibly more convincing than where presented for repeat offenders. Second, the possibility that the offenders could receive lengthy imprisonment sentences provided a strong incentive to present any information that might reduce the severity of sentence received.
The case studies illustrated two different processes through which section 16 came to be used. In case study ten, the lawyer explained that he, as a matter of course with new cases, sought opportunities to use section 16. In case study eleven, section 16 was identified as the only option available to present a Japanese cultural version of events following the offender’s conviction without this information having been presented.
Further reasons for the use of section 16 can be seen in the purposes and benefits reported by those involved in these two cases. In case study ten, the opportunities for participation and lay representation were important reasons for using section 16. In case study eleven, the decision to use section 16 was more of a last resort; lay representation and participation were less important than ensuring the opportunity was taken to present new information authoritatively and objectively.
Significant factors in the effectiveness of section 16 use
The case studies raised several issues that can contribute to the effectiveness of section 16.
Quality of representation
The offenders in both cases were represented, from their own funds, by Queen’s Counsels. The supporters thought that the quality of representation, in the cases that they were involved in, including organisation of the section 16 submission, was directly related to their having paid privately for ‘top quality representation’.
Notifying the court
Notifying the court of the intent to request that section 16 submissions be heard has been shown to be significant. In these two cases, both counsels made every effort to notify the court in advance of the sentencing. In case study ten, the Judge also received a written outline of the issues that the verbal submission would address.
The potential impact of a judge not receiving this notification was evident in case study eleven. In this case counsel’s notification was not transmitted to the judge. The resulting postponement and frustration, while not counsel’s responsibility, were thought to have impacted negatively on how well the submission was received.
Quality of submissions
Selection of speakers and the quality of their submissions can also be seen to be significant to the effectiveness of section 16 submissions. The presenters in these two cases were selected for their experience and credibility, but also for their relationship (in one case) or lack of relationship to the offender (in the other case). In case study ten, the offender’s mother brought direct experience of the offender’s family circumstances, knowledge of court processes, and presentational skills. The presenter in case study eleven was selected for his authority on cultural issues, perceived objectivity and ability to address the court confidently.
Although significant effort went into deciding who would be an appropriate speaker, in both cases the combinations of ‘relationship to the offender’ and ‘expertise’ that each presenter offered had different effects. In case study ten, the combination of a mother's direct relationship to the offender and eloquence seemed highly effective. In case study eleven, the spokesperson’s lack of personal relationship to the offender and highly intellectual presentation, may have made the submission more open to challenge by the judge and prosecution.
Style of section 16 submission
The case studies illustrated that two distinctly different styles of presentation can be made under section 16, to address quite different needs. In case study ten the spokesperson spoke to a written outline that had been handed to the judge in advance of the sentencing. The submission was complementary to an oral submission from the lawyer, numerous written submissions from supporters and the presence at sentencing of approximately twenty supporters. It seemed that this combination of factors: providing a written outline to the judge; a brief, well focused submission; and evidence of wider support for the offender; were significant to the effectiveness of section 16 in this case.
In contrast to this, and to the more orthodox style of uninterrupted submission, the lawyer in case study eleven chose a formal and interactive style of submission. The spokesperson was called to the stand, sworn in as a witness, questioned by defence counsel (along pre-arranged lines) then cross-examined by both the judge and prosecution counsel. This method was chosen to give the submission increased legal credibility, but may have made it open to a more adversarial style of challenge.
Systemic issues - court process, awareness, information
Case study eleven highlighted a number of factors that could impact negatively on how well a submission is received. These pick up on several themes raised in earlier case studies and in the following survey chapter. First, that the court was not aware of the lawyers’ intention to request a section 16 submission highlights a need for courts to have a clear and reliable system in place for section 16 submissions to be accommodated. Secondly, that counsel believed the judge was not aware of section 16 and that his efforts to explain what he wanted to do frustrated the court, highlights a need for information and guidance for both judges and lawyers about section 16.
Case study eleven also raised a need for lawyers to manage the expectations of their clients about the possible effects that section 16 submissions can have on a sentence. In this case the supporters expressed disappointment at the impact of the section 16 at both district and high court stages. Their expectations may have been more in line with the sentencing outcomes if they had had more information about the extent to which the issues of section 16 can affect a sentence.
Changes to legislation
Case study participants’ perceptions of the wording and purpose of the provision were generally favourable. One of the judges identified a need to address the inconsistency between the subtitle and body text of section 16 (case study ten). The spokesperson in case study ten was pleased to have had the opportunity to participate and felt that that would help the family to deal with their issues. Her perspective was that family information should be able to be presented under section 16 and that it should not be narrowed to exclude European participation.
Changes to context
Participants in case study eleven endorsed the provision but noted a tension between the intent of the provision and the context in which it is applied. The spokesperson in particular thought that section 16 implies a climate of cultural acceptance, but that tolerance of culturally-based submissions was in fact limited. This may be somewhat evident in the High Court ruling where the appeal judge explained that anyone living in New Zealand is required to conform to New Zealand law.