Foreword | Acknowledgements | Tables | Executive Summary | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Glossary | References | Appendices
Section 16 of the Criminal Justice Act 1995 allows an offender’s supporter to present information at sentencing about an 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 has investigated the purposes of section 16, the use and the 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.
The research draws information from eleven case studies of situations in which section 16 has been used. 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.
The extent to which section 16 has been used
The survey results confirm 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 reasons given were a general lack of awareness of the availability of the provision, and resistance on the part of some of those working within the system to the use of section 16.
The original purpose of Section 16
When the Criminal Justice Act was introduced, section 16 was linked with the aim of reducing the level 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 (families) and communities in alternative sentencing, although it was available to any offender, regardless of cultural background.
The research has found that although community-based sentences are imposed in a substantial minority of cases where section 16 has been used, a direct link to the section 16 submission can be established only rarely. When community programmes are proposed by means of section 16, there are frequently factors which override a community-based sentence. These factors include a presumption in favour of imprisonment for some offences, and a lack of availability of suitable programmes. It is clear that the original aim of section 16 has largely been unrealised in its implementation.
Current purposes of Section 16
Section 16 has been used for a much broader range of purposes than were originally envisaged.
Participation in the sentencing process
The case studies and the survey reflect that families frequently use section 16 as a means of participation in the sentencing process. Section 16 was used to this end with varying levels of effectiveness. For some of the families their participation resulted in a sense of ownership of the outcome. For others, a number of factors resulted in their dissatisfaction with their participation. The survey findings show that, although section 16 is being used to enhance participation by offenders’ families, this purpose is not widely acknowledged by those working within the system.
Provision of information at sentencing
The majority of survey respondents believed the main purpose of section 16 was to assist the court by providing further information at sentencing. An analysis of the information in section 16 submissions shows that a broad interpretation is being given to what constitute ‘cultural’ factors. These include factors such as family background, contribution to the community, employment, early life disadvantage, age, and church or gang involvement. Very specific cultural factors were presented in only a small proportion of cases.
The survey revealed a divergence in 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.
Formal closure to restorative processes
In some of the cases studied, section 16 was a means of expressing formal closure to restorative processes between victim and offender, which had taken place prior to the sentencing hearing. In these cases, 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. Section 16 is being used in this way in only a small number of cases, but as restorative processes become more accepted, is likely to be used increasingly for this purpose.
The effects of using section 16
The use of section 16 was perceived to have had at least some impact on the sentence in approximately half of the cases reported, and to have resulted in a reduced sentence in more than one third of cases. Examples of reductions in sentences included suspension of sentences of imprisonment, reductions in the length of imprisonment or the 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. An important positive effect is a family’s public expression of support and involvement in the rehabilitation of their family member who has offended. The use of section 16 results in family alienation when the system and those acting within it lack the responsiveness and flexibility needed to incorporate culturally safe and appropriate processes. Many of the negative effects could be ameliorated through improving the practice surrounding the use of section 16.
Suggested improvements to the implementation of section 16
Enhance cultural competencies : section 16 implies and encourages the participation of peoples of 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. The survey findings strongly supported further educational programmes in this area for lawyers, judges and Community Probation Service staff. Increasing the number of judges and lawyers from different cultural backgrounds was also seen as a way of enhancing cultural competency within the system.
Raise awareness of section 16 : survey respondents suggested displaying information about section 16 in court waiting areas and ensuring that the pamphlet produced by the Department for Courts was distributed widely.
Enhance cultural responsiveness and flexibility in court processes : several of the case studies involving Māori offenders and their whānau in particular reflected a high level of discomfort with practices within the court setting which they found culturally insensitive. The physical environment, unfamiliar language and process, and 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. In particular, it was suggested that courts could: be more flexible in time frames for section 16 submissions; allow for more than one speaker; provide for the presenter to speak in Māori; provide the opportunity for the offender to acknowledge the speaker; and allow for closure through physical contact.
Enhance resourcing for section 16 : there was strong support for increasing resourcing within the system to better accommodate section 16. It was suggested that section 16 would be more effective if resourcing were increased for the legal aid regime; the Community Probation Service; community-based programmes; and court time.
Improve professional practice : ways in which lawyers’ and probation officers’ professional practice could be improved included: notifying the judge and court manager in advance that a section 16 submission is to be made; effective provision of information about section 16 to offenders and their families; and allowing time for planning and discussion with families, particularly to ensure that they have realistic expectations about the outcome.
Judges are key to the acceptance of section 16 as part of the sentencing process. They can create a climate of acceptance by taking a broad interpretation of the legislation, managing case flows to allow time for section 16, and making enquiries as appropriate at sentencing.
Should the legislation be changed?
There was substantial support for clarifying the purpose of section 16. It is clear that section 16 has the potential to enhance both content and process at sentencing. The legislation could be improved to reflect these purposes.
There is a need to clarify the type of content allowable in section 16 submissions. Because of confusion over the terms ‘ethnic’ and ‘cultural’, there was substantial support for allowing any information on the background of the offender to be covered in a section 16 submission.
It was also suggested that the section should clearly state that submissions can relate to: understanding the background to the offending and the culpability of the offender; sentences that could be applied to the offender; and information about restorative processes. The legislation should also clarify that more than one person may stand to speak.
And the legislation could reflect a stronger expectation that the court will hear the submission, regardless of the fact that the penalty for the offence is fixed by law, or for any other reason. The research findings indicate that these changes would help to encourage an atmosphere of partnership in the sentencing process.