Foreword

The Criminal Justice Act, which came into force on 1 October 1985, brought about a number of significant changes in the law relating to criminal justice. It was developed in the light of widely expressed concerns about issues such as biculturalism, community involvement in the criminal justice system, the victims of crime, and violent crime.

One of the newly introduced provisions relating specifically to court procedures was section 16 which provided for an offender who appears before any court for sentencing to call a witness to speak on his or her behalf on cultural matters that could be relevant to sentencing considerations. The person called to speak may talk about the ethnic or cultural background of the offender, the way in which that background may relate to the commission of the offence, and the positive effects it may have in helping to avoid further offending. The court must hear the person unless for some special reason, such as the penalty for the offence being fixed by law, it is satisfied that it would not be of any assistance to the case. The section provides the only opportunity for a lay person not under oath to address the court.

Section 16 was designed essentially with the Māori community in mind, although it was worded broadly enough to have a general application to all offenders. It allowed representatives of the offender the opportunity to participate at a stage in a case where they would normally in the past have been excluded. It was intended to encourage iwi, hapū, and whānau support or community group representation for the offender, place cultural aspects of an offender’s background before the court in a positive light to show how re-offending may be reduced, and, where appropriate, lead to a community-based sentence where cultural attributes could be built upon for possible rehabilitative purposes.

A monitoring exercise of several provisions including section 16 conducted over a six month period in 1986/87 and involving eight District Courts showed that only two of the courts recorded instances of the section’s use. It was only invoked on 19 occasions (involving 14 Māori, four Samoan, and one European offender). The use by Māori and Pacific Peoples offenders represented only 0.25% of cases where Māori and Pacific Peoples offenders were convicted.

Anecdotal evidence suggested that section 16 continued to be used rarely throughout the 1990s and that there was a general lack of awareness of the availability of the provision despite there being a pamphlet in five languages available in the courts about the section. There was however no extensive information about the application of the section. It therefore was appropriate to look into the use of the section in more detail. This report is the result of research conducted by the Ministry of Justice in 1999 and 2000 which 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 also sought to identify any improvements that could be made to the legislation or to the way the legislation was being implemented.

The research involved 11 case studies of situations where section 16 was used and a national postal survey of judges, lawyers, community probation service staff, and community organisations. Nine of the 11 case studies (six involving Māori offenders and three involving Pacific Peoples offenders) were completed under contract to the Ministry by suitably qualified external researchers able to relate to the cultural values of the offenders and their families being interviewed. An advisory group drawn from several government agencies, the community, and the judiciary was established to assess proposal documents, receive progress reports, advise researchers and comment on draft reports.

The research does indicate a very low utilisation, and a low level of awareness, of section 16 in the court system. However the case studies also clearly show that when the section is called upon it can enhance both the content and the process of sentencing. Some lack of clarity in the current wording has been identified by practitioners involved in the research and the report has made some practical suggestions on this matter as well as on some matters relating to court procedures that could assist use of a section 16 type provision.

The sentencing provisions of the Criminal Justice Act have now been in effect for 15 years and are currently the subject of a major review. This makes this research report particularly timely and able to contribute to the policy development process with up-to-date information on one aspect of the sentencing process. The report itself will also assist in making section 16 more widely known and provides examples in detail of its application in a variety of cases that should be of practical value to professionals and community organisations involved in court procedures.

Matthew Palmer
Acting Secretary for Justice