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

7.1 The extent to which section 16 has been used

The Criminal Justice Act 1985 brought a number of significant changes to the law relating to criminal justice. Among these changes, the Act increased the range of community-based sentences. It was hoped that these sentences would reduce the use of imprisonment for non-violent offenders and encourage more community involvement within the justice system. In particular, concern had been expressed about the high level of imprisonment of Māori in New Zealand.

It was in this context that section 16 of the Act was introduced. Section 16 allows for offenders’ supporters to present information at sentencing about the offender’s ethnic or cultural background, the way that may relate to the offending, and the way that may help in avoiding future offending.

This research aimed to examine the uses and perceptions of section 16, some 15 years after its introduction. In particular, the study has investigated the purposes of section 16, the use and effects of using section 16, and possible reasons for a lack of use. The study has also sought to identify any improvements that could be made to the legislation, or to the way the legislation is implemented. Each of these areas will be discussed in turn in this overview.

Two methods have been used to gather information for the study. Eleven case studies of situations in which section 16 has been used have been prepared by gathering information from those involved. Six of these case studies involved offenders who were Māori, three involved offenders who were Pacific People, one involved a Japanese offender and one a New Zealand European offender. Further information was gathered from a national postal survey of judges, lawyers, Community Probation Service staff, and community organisations. Findings from all of these sources will be drawn on in this overview.

The survey indicates that where section 16 has been used, this is mostly in cases involving Māori offenders and offenders who are Pacific Peoples. The person making the section 16 submission was most commonly a member of the whānau or family, while community groups and kaumātua were also frequently spokespeople. Lawyers were most likely to organise the section 16 submission, while the offender organised the submission in a small proportion of cases.

Section 16 has been predominantly used for violent offences, and a significant proportion of these involved family violence. Case study nine is an example of use of section 16 for offending involving family violence. Section 16 was used to provide a cultural explanation for one aspect of the offending and place it in its cultural context.

In the cases reported in the survey, the sentence imposed was most likely to be imprisonment (45% of cases), although in one third of those cases the imprisonment was suspended. Community-based sentences were imposed in about a quarter of cases.

There are still significant proportions of professionals and community groups working within the criminal justice system who have never been involved in cases using section 16. Because it is likely that many of those who did not respond to the survey had not previously been involved in section 16, we can assume the actual numbers who have never encountered section 16 are greater than revealed in the survey (44% of lawyers and 14% of judges).

The survey results confirm the findings of the exploratory study, that section 16 is under-utilised. Only 14% of survey respondents perceived that section 16 was used as frequently as it could be.

The main reason given for under-utilisation of section 16, was a general lack of awareness of the availability of the provision or how it could be used. A further substantial group of respondents, believed that there was some resistance on the part of those working within the court system to making or receiving section 16 submissions. Other reasons given for under-utilisation were barriers to accommodating section 16 within the system, and a lack of suitable people available to speak on an offenders’ behalf. All of these reasons point to areas in which improvements might be made to the implementation of section 16, discussed in section 7.4.

Findings from the exploratory study and previous consultations had suggested that there was some confusion about the purposes of section 16. The survey findings confirm that there is a divergence in understanding of what section 16 is there to achieve. One group of respondents believed that section 16 had a narrow purpose, which was to assist with the processing of a case by providing the court with additional information relevant to sentencing. Another group of respondents believed that section 16 had a wider purpose relating to access to justice, and community participation in, and satisfaction with, the sentencing process. These differences will be explored in the later discussion of the purposes for which the provision has actually been used.

The study findings show that section 16 has been used for a much broader range of purposes than was originally envisaged.

Documentation produced at the time the Criminal Justice Act was introduced shows that section 16 was clearly linked to the aim of reducing the use of imprisonment by encouraging the use of community-based sentences. Section 16 was seen as a means of involving peoples of different cultures in finding alternatives to imprisonment for offenders from their communities. It was developed particularly with a view to involving Māori whānau and communities in alternative sentencing, although it was available to any offender, regardless of cultural background.

It is useful to ask how far the original purposes of section 16 have been realised. It has been difficult to obtain recorded information about the use of section 16. To help fill this gap, those surveyed were asked to give information about the most recent ‘section 16’ case that they had been involved in.

In the cases reported in the survey, the section 16 submission referred to an alternative sentence to imprisonment in only seven percent of the cases reported. A larger number of the cases actually resulted in a community-based sentence, indicating that alternative sentences were mostly proposed through other means, such as the pre-sentence report. Only a tiny proportion of cases resulted in a community programme.[37] When asked what, in their view, was the main purpose of section 16, only a small proportion of respondents thought its purpose was to provide information about a type of sentence.

The case studies reveal some of the dynamics when section 16 has been used to propose a community-based sentence. In case studies one, two, three and six, the section 16 submission included proposals for a community-based sentence.

These findings show that although community-based sentences are imposed in a substantial minority of cases where section 16 has been used, a direct link between the sentence and the section 16 submission can be established only rarely. When community programmes are proposed by means of section 16, there are frequently overriding factors which rule out a community-based sentence. These factors include legislative presumptions in favour of imprisonment, or a lack of availability of suitable programmes.

The original aim of section 16 has largely been unrealised because of its lack of use. The case studies also show that the extent to which a section 16 submission can have an effect on the sentence will vary depending on the nature and circumstances of the offence and other information about the offender placed before the court.

What then are the purposes for which section 16 has been used? These will be examined in turn from the case study and survey findings. As is apparent in the case studies, in any single case, section 16 can be used for a mix of the purposes discussed below.

Several of the case studies reflect the use of section 16 as a means of family and community access to and participation in the sentencing process. Section 16 was used to this end with varying levels of effectiveness. The case in case study five achieved this purpose particularly effectively. Section 16 was used as a vehicle for the families of the five offenders to work together to express their depth of feeling for their boys, their sense of shame at their offending, and their family values and concern. Overall, the submissions resulted in a sense of ownership of the outcome, even though there was no possibility of departing from a sentence of imprisonment. Meaningful participation could be achieved despite the fact that the use of section 16 made no apparent impact on the sentence imposed. Used in this way, section 16 had an impact on that community of people in terms of how they perceived justice, and the experience showed them that there could be benefits from working with the system.

Two of the Pacific Peoples case studies, case studies seven and eight, also reveal a use of section 16 which enabled the victim’s family to participate in the sentencing process. Both of these cases show that the use of section 16 connected the offender’s family with the offender, the victim’s family, and the sentence. Although section 16 was used in these cases primarily to convey the outcome of restorative processes between victim and offender (which will be discussed below), it also resulted in a high level of participation of both victims’ and offenders’ families in the sentencing process.

In case studies one, three and six, although section 16 provided the means for the families to participate in the sentencing process, and to express their concern in public, a number of factors resulted in their dissatisfaction with their participation. In all of these cases a number of practice issues limited the effectiveness of the families’ participation. These will be discussed below in the section on improvements to the implementation of section 16.

In case studies three and six, the families’ submissions related to their concern about the mental health issues relating to their family member. Ultimately the court had little flexibility to deal with these issues at the sentencing stage, resulting in outcomes that caused the families much distress and pain. Thus, although section 16 was used to enhance the participation of families in the system, its use for this purpose was not always successful.

Of the cases reported in the survey, about one-third involved submissions to the court by a member of the whānau or family of the offender. This suggests that section 16 is frequently used by families as a means of participation in the sentencing process. However, very few survey respondents believed the main purpose of section 16 was to provide an opportunity for family and community participation in the sentencing process. This suggests that although section 16 is being used to enhance participation by offenders’ families, this purpose is not widely acknowledged within the system.

The majority of survey respondents believed the main purpose of section 16 was to assist the court by providing further information at sentencing. When section 16 is used for this purpose, the content of the submission is of primary importance, to the extent that it contributes additional information to be considered in reaching a sentencing decision.

Respondents to the survey were asked about the content of the submission in their most recent case. The findings were as follows:

This suggests that in the majority of section 16 submissions a broad interpretation is being given to what constitutes cultural factors. These include factors such as family background, contribution to the community, employment, early life disadvantage, health, age, and church or gang involvement. Very specific cultural factors were presented in only a small proportion of cases. The case studies show that Māori whānau in particular regard section 16 holistically.

The survey respondents revealed a divergence of opinion about how the ‘ethnic or cultural background’ should be interpreted. One group believed that the section should allow for the presentation of any relevant information on the background of the offender or the offence. Another group held that there were few cases in which culture or ethnicity were a factor in offending, and that by and large section 16 was being misused when ‘collateral issues’ were presented.

In case studies nine and eleven, the content of the submission related to practices specific to Samoan and Japanese cultures respectively. When used in this way, section 16 can be seen as presenting information in mitigation of the offending. In case study nine, the judge took this additional information into account in deciding on the sentence, whereas in case study eleven, both in the District and High Courts the judges indicated that, while the information was considered, it did not ultimately have an impact on the their decisions.

In case study ten, the content of the submission related to the family and early life background of the New Zealand European offender. The judge willingly received this information which he believed complemented the other information available to him. It is difficult to assess to what extent the section 16 submission, as opposed to the other information, had an impact on the decision to give a community-based sentence.

The case studies show that when section 16 is used for the purpose of providing information to the court, this is frequently complementary to other information presented. In case studies nine, ten and eleven, the judges indicated that the section 16 submission was complementary to a co-ordinated package of information including the counsel’s pleas in mitigation, the offender’s record, and the pre-sentence report. Section 16 submissions appeared to be most effective when co-ordinated with the other forms of information presented at sentencing.

Three of the case studies have shown section 16 as a means of expressing formal closure to restorative processes between victim and offender which had taken place prior to the sentencing hearing. Case study seven, involving an I-Kiribati offender was the strongest example of this. The restorative process and the judge at sentencing recognised that within the cultures of the two families involved, offending was not an individual matter. The victim’s family gave lengthy submissions at sentencing. Although the submissions may have had little influence on the sentence, they expressed remorse, forgiveness, and reconciliation, and in the judge’s and the families’ view, brought a just resolution to the situation.

In case study eight the restorative process arose from the ordering of an emotional harm report. At the meeting of the victim’s and Samoan offender’s families, the sharing of the sentence by the offender’s family was seen to be appropriate. The victim’s family was consulted about the section 16 submission. The judge felt that the expression of remorse and restitution were directly relevant to sentencing and that the involvement of the victim’s family had been helpful.

In case study four a restorative meeting between victim and offender had been organised by counsel. The section 16 submission made by a member of the offender’s family was a public expression of support for the offender and for his rehabilitation. It was a combination of the restorative process which was reported on by counsel and confirmed by the victim adviser, with the pre-sentence report outlining the programme which could be put in place for the offender, and the section 16 submission that resulted in a sentence of imprisonment being suspended.

Section 16 was used to explain a cultural process that had taken place prior to sentencing in only a small number of cases reported in the survey. Nevertheless, as restorative processes become more accepted, it is likely that section 16 will be used increasingly for this purpose.

The effects of using section 16 can be seen on several levels. There are potential immediate effects on the type of sentence imposed and the way that sentence is carried out. And there are wide-ranging potential effects on all who have participated in the case.

The survey indicates that the use of section 16 was perceived to have had at least some impact on the sentence in approximately half of cases and to have resulted in a reduced sentence in more than one-third of the cases reported. Examples of reductions in sentences included suspension of sentences of imprisonment, reductions in length of imprisonment or amounts of fines, or receiving a community-based sentence when imprisonment was expected.

The case studies show that the use of section 16 can have positive or negative effects on participants in the case. It is clear, however, that many of the negative effects could be ameliorated through improving the practice surrounding use of section 16. This will be further discussed in the section 7.4 below.

Few survey respondents believed that section 16 was being used as effectively as it could be. Both the case studies and survey raised a number of areas in which improvements could be made to the way section 16 is implemented. These will be considered in turn, before a discussion of suggestions for changes to the legislation.

Section 16 implies and encourages the participation of peoples from a range of different cultures in the sentencing process. It is important, therefore, that the professional groups who work within the system are adequately prepared to respond respectfully and sensitively. There was evidence from the case studies that some families were offended by responses they received, to the point that their confidence in the process was undermined. These families would be reluctant to participate in the process again. Raising the level of professionals’ cultural understanding could also potentially contribute to their greater readiness to use section 16.

The survey respondents strongly supported further educational programmes in this area for lawyers, Community Probation Service staff, and judges. Comments from those interviewed indicated that as well as broadly enhancing understanding of cultures, the training could be as specific as guiding judges as to how to assess the impact of cultural factors at sentencing. While a lack of cultural awareness may not be a barrier to the appointment of justice professionals, their acknowledgement of their learning needs and their openness to learning are important qualities.

Increasing the number of judges and lawyers from different cultural backgrounds was also seen as a way of enhancing cultural competency within the system. One reason for this is that, for example, Māori personnel would bring with them their knowledge and experience of Māori communities and apply that to their work. Many other professionals working within the system may have experience of Māori only as offenders coming before the system. A substantial proportion (but less than half) of survey respondents agreed that there should be more judges and lawyers of different ethnic groups, although a substantial minority also disagreed with this.

The case studies indicate that section 16 was generally initiated when families approached counsel with a desire to take part in the sentencing process in some way. While section 16 submissions may be an appropriate way to meet this need, this seems a haphazard means of ensuring that offenders are aware of their right to use the provision. Community organisations were aware of families who had wanted to speak at sentencing, but did not know how to go about it.

As quoted above, almost half of the survey respondents believed there was a general lack of awareness of section 16. Almost two-thirds of survey respondents thought that information about section 16 should be displayed in court waiting areas.

The case "Wells v. Police" quoted in the introduction to this report confirmed that section 16 provides the only opportunity for a lay person not under oath to address the court. This is what distinguishes section 16 from other sections of the Criminal Justice Act, which also provide for taking into account an offer to make amends (s12); adjournment for inquiries as to suitable punishment (s14); pre-sentence reports (s15); or reparation (s22). It is apparent that families do not know of the opportunity to address the court because the system fails to inform them. As discussed in the section on ‘Best practice issues’ below, lawyers and probation officers could be encouraged by means of practice guidelines to inform their clients of the opportunity to stand and speak at sentencing.

Several of the case studies involving Māori offenders and their whānau in particular reflected a high level of discomfort with culturally-insensitive practices within the court setting. The researcher for these studies referred to this as a ‘cultural disregard’, or a lack of understanding of Māori values and culture. The physical environment, unfamiliar language and process, and a clear imbalance of system knowledge and power combined to create an environment in which few of the whānau felt that they were able to participate freely. The researcher observed that wherever Māori meet to discuss matters of importance there are appropriate processes of encounter and acknowledgement to be carried out before attention turns to the take or issue of the day. When respect is paid to these processes, it is easier for whānau to accept the outcome of a sentencing decision, as was evident in case study five. The family in case study six expressed concern at the lack of status accorded to kaumātua who participate in the court process, and the imbalance of power between kaumātua and those who have legally-sanctioned roles such as lawyers and judges.

The need for courts to be flexible in time-frames for section 16 submissions can be seen in case study seven, where members of the victim’s family spoke for two hours. The expectation of the court that presenters of submissions will ‘come to the point’, using as little of the court’s time as possible, offends and disadvantages those from cultures who prefer to contextualise their kōrero.

The case studies also show a need for flexibility in other aspects of court processes and the court environment to accommodate section 16 submissions. Examples were:

The survey reveals that there is some resistance to accommodating these sorts of changes within the system. Almost half of the survey respondents disagreed that the court setting should become more culturally-appropriate in order to make section 16 more effective. However, almost a third of respondents did support this statement.

The survey also revealed strong support for increasing resourcing within the system to better accommodate section 16. Some respondents thought that section 16 would only be improved through better resourcing.

Several lawyers in both the survey and case studies observed that the current legal aid regime did not allow for the extra time involved in arranging section 16. They pointed out that the process of contacting and meeting with community and family groups could run into many hours of unpaid time. Most of the survey respondents thought that legal aid should be increased to allow time to organise section 16. Similarly, most respondents supported increasing resources to the Community Probation Service to allow time to organise section 16.

Most survey respondents agreed that section 16 would be used more effectively if there were more community-based programmes available. This would mean that section 16 proposals would have more chance of offering viable alternatives to imprisonment.

Court time was a further resourcing issue, in an environment where there is pressure to process cases more efficiently. There was some evidence that in the smaller provincial courts time could be found more easily to accommodate section 16 submissions. In the larger courts, time could be found provided there was advance notification of a section 16 submission. This will be discussed in the section below.

The case studies and the survey identified a number of issues concerning the practice of professionals who work within the system in relation to section 16. Ultimately, bringing about improvements in practice may be more effective than changing the legislation to make section 16 more effective. Potential improvements to the practice of judges, lawyers and Community Probation staff can be identified from the findings. Currently, no one professional group carries the responsibility for implementing section 16. Through changes to their practice, each of these groups could carry more of the responsibility for the effective use of section 16.

The case studies reveal that the sentencing judge was key to the acceptance of section 16 as part of the sentencing process. The judge also determined the openness of the court context to different cultural process. Efforts to make the court context more culturally appropriate became peripheral if judges were not open to appropriate processes. The judges who were most flexible, and least worried that the process would derail, demonstrated a confidence and experience in their role as controller of the court environment. They also tended to take a broad rather than literal interpretation of the legislation.

It is evident from the findings that the judges’ response and demeanour influence counsels’ willingness to use section 16. Counsel will use section 16 only if they think judges will listen. Establishing a climate of acceptance of the use of section 16 at sentencing is an important way that judges could increase its use.

The difficulty of managing case flows was an issue that judges frequently raised in relation to incorporating section 16 into sentencing. Some of the judges in the case studies demonstrated that they were empowered to use court time as needed. They were able to use their authority to change lists for the sake of enhancing the quality of justice. They are also empowered to take this up with the court administration if necessary.

More than half of survey respondents thought that judges should promote section 16. This role can be interpreted as taking a proactive stance to section 16, by making appropriate enquiries at sentencing as to whether there are other matters to be brought to the attention of the court. One of the judges stated that she enquired as a matter of course whether there was anyone present who wished to speak on behalf of an offender. Judges could also anticipate the possibility of a section 16 submission by suggesting that this be considered at the time the case is remanded for a section 23 pre-sentence report.

The majority of survey respondents thought that it was the responsibility of defence counsel to inform their clients of the opportunity to use section 16 at sentencing, and subsequently to organise and prepare the spokesperson. In practice, defence counsel organised the submission in only half of the cases reported. This suggests that lawyers could become more active in this area.

In many of the cases studied, it was noted that judges and court managers preferred counsel to inform them in advance that a section 16 submission was proposed. This allowed time to be allocated for sentencing, particularly in a busy court with a full list. Pre-warning also allowed the judge to make a considered response to the submission. Without pre-warning, it is evident that a judge may indicate displeasure to counsel about the process, which raises anxiety for the family, and creates a feeling that the submission will not be given full consideration.

Counsel can also facilitate the use of section 16 by effectively preparing the offender and their family or supporter. Allowing time for planning with the offender’s supporters helps them to decide who should speak and what matters should be raised in the submission. Counsel should work to clarify their own understanding and expectation of section 16 before preparing the offender and their supporters. It is particularly important to inform them of realistic sentencing options. The case studies show that, otherwise, the expectations of offenders and their families can be raised unrealistically, to the extent that their confidence in the sentencing process is undermined when their expectations are not met.

The counsel in case study four demonstrated particularly effective practice relating to section 16. She co-ordinated the section 16 submission with other representations, so that the outcome did not depend on the section 16 submission alone. She advised the judge in writing of the section 16 submission the day before, and provided a list of points regarding special circumstances for consideration. And she spent time informing and preparing the family for their role.

More than half of the survey respondents thought that Community Probation staff should notify their clients and families of the option to use section 16. Probation officers who prepare pre-sentence reports are in a unique position within the system, in that they alone have a mandate to meet with the offenders’ family. This could be seen as an opportunity to raise the possibility of section 16 with the family. Survey respondents strongly supported a requirement that probation officers routinely consider the need for a section 16 submission in the course of preparing pre-sentence reports.

The probation officer in case studies seven and eight demonstrated particularly effective practice in relation to section 16. He met on several occasions with the offenders and their families, and in this case, the victims’ families, to facilitate the process leading to reparation reports and section 16 submissions, which confirmed the outcome of the process in court. He worked in co-ordination with other professionals involved, such as the lawyer and the victim adviser. He incorporated the outcome of the meetings into the pre-sentence and reparation reports and helped to prepare the families for their section 16 submissions.

The exploratory study revealed that Section 16 had no current defined place within Community Probation practice. This contrasts with the defined practice that exists around other provisions of the Criminal Justice Act, such as reparation, and community- based sentences. As a result, it was reported in the exploratory study that the implementation of section 16 often rested with Māori and Pacific Islands probation officers. To ensure it becomes part of accepted practice in sentencing, a process for introducing and using section 16 needs to be developed and built into the Community Probation Service practice guidelines. This may best be placed within the cultural assessment phase of the new Integrated Offender Management strategy.

The exploratory study revealed that some community organisations are working particularly effectively with section 16 in particular court districts. They have developed a close relationship with the local court or probation service and work with offenders and their supporters who are referred to them, or who they identify at the court. Community organisations are in a position where they can engage the trust of both system agencies and offenders from their communities. Their practice is quite specific from one location to another. Generally, the use of section 16 is not their primary purpose. Rather, it is used as a vehicle to assist in achieving their aims, which may revolve around restorative justice, or reducing the imprisonment rates of offenders within their communities. More than half of the survey respondents thought that section 16 would become more effective if more of these organisations were available to take referrals.

A further important role of community organisations is providing programmes which can be proposed as community-based sentences. More than two thirds of survey respondents thought that section 16 would be more effective if there were more such programmes to which offenders could be directed as part of community-based sentences.

In deciding whether the legislation should be changed, the first step is to clarify the purpose of the provision. The provision is clearly rarely meeting the original purpose of involving the offender’s community in proposing community-based sentences as alternatives to imprisonment. The research has shown that the provision can be used effectively to enhance both content and process at sentencing. Section 16 enhances process by facilitating the participation of offenders’ whānau, and by providing for formal closure to restorative processes that have taken place between victim and offender prior to sentencing. It enhances content through the provision of additional information to the court. Survey respondents thought that it was important to clarify the type of content allowable in section 16 submissions.

If legislative changes are to be made to reflect the current purposes described in this report, the following issues should be considered:

If legislative changes are to be made to encourage greater family and community participation in the court process, corresponding changes should be made to the court environment and its underlying values. The physical environment, the behaviours of those within the system, the language and process all have an impact on the level of comfort of the peoples who come to the court environment. Moreover these factors have a bearing on the extent to which they can participate freely. To fail to address change at a broader level will only result in raising the expectations of offenders’ whānau that may not be met in practice. The researcher who carried out the case studies for Māori offenders said: "A commitment to effective Māori participation in the administration of justice requires a continued focus on the cultural safety of all users of the justice system, including the whānau of offenders". In the words of one of the whānau interviewed:

37. A type of community-based sentence in which an offender undergoes a programme agreed by the court and provided by any person or agency. The sentence was originally named ‘community care’.

Overview