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How to get background info for sentencing once legal aid is cut

15 Mar 2024

| Author: David Harvey

The Legal Services Amendment Act 2024, given Royal Assent on 7 March, removes legal aid funding for an oral or written statement of a person called by an offender under s 27 of the Sentencing Act 2002. The trend towards written material, known as “cultural reports”, is one of the matters that prompted the statute. Legal aid funding for these reports increased from $40,000 in 2017 to approximately $7.5 million in the 2023 financial year. The government considers this ever-increasing expenditure cannot be justified.

At the first reading of the statute, Minister of Justice Paul Goldsmith claimed cultural reports were prepared by a person not known to the offender or unfamiliar with their background before the court proceedings started. Some of these services are promoted with reference to the size of the sentencing discount that prospective clients can expect. This overlooked the fact that often the depth of inquiry by a cultural report writer was of considerable importance to a sentencing judge. Yet cultural report writers were demeaned as a “cottage industry”.

The Act, which amends the Legal Services Act 2011, does not prevent background information about an offender, which is relevant to sentencing, from being provided to the court. This information will continue to be available from a range of sources, such as the offender calling on a person to address the court orally on s 27 matters; the offender’s lawyer’s submissions; presentence reports prepared by the Department of Corrections; letters of support from family and friends; persons supporting the offender through a mentoring, rehabilitation, or counselling program; and other reports that may be appropriate, such as alcohol and drug assessments.

This information may be conveyed in writing or orally – the original method of delivery envisaged in s 27. But legal aid will not be available to pay for the development and presentation of this information. The amendment provides that the Legal Services Commissioner must decline any claim for payment of legal aid as a disbursement incurred in relation to a report or statement (whether oral or written).

This goes much further than declining a report writer’s fee as a disbursement. The prohibition is extended to any claim for a disbursement incurred with the provision of a report or statement. Thus, any claim by family members for travel costs as a disbursement to enable their presence at court to present oral material to the sentencing judge will not be approved. In essence, the Act has removed any legal aid funding for any disbursement associated with the provision of s 27 background or cultural material to the court. Those who can afford to provide this material from their resources may still do so. But those who most need the material envisaged by s 27 to be made available, will be disadvantaged.

The reaction to this amendment from the legal profession has been, to put it mildly, negative. Given the urgency steamroller that the government employed to enact its bill, it was unlikely anything that anyone might have said would affect the inevitability of its passage through Parliament.

 

The question now becomes: what to do?

Section 8(i) of the Sentencing Act states that in sentencing an offender the court must consider their personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

Section 27 is still on the books but what it effectively does is provide a process by which this background or cultural information, required to be considered under s 8(i) about an offender, can be put before the court. Section 27 also makes it mandatory for a judge to hear that information – an oral presentation was clearly envisaged – unless there is a special reason that means it is inappropriate or unnecessary to do so. The practice of presenting this material in written form was developed informally and was appreciated by judges who could give careful and deliberative consideration to that material before sentencing in open court.

Section 26 specifically provides that pre-sentence reports may be prepared by a probation officer at the court’s direction. However, these reports rarely, if ever, went into the detail that was available in many s 27 reports.

There is a cost in obtaining detailed background or cultural information that was provided in s 27 reports. Legal aid funding may not be available for the purposes of section 27 – and that has been the target of the Act. The amendment does not prohibit the availability of legal aid disbursement funding for the provision of background information for the purposes of s 8(i). In the same way that the provision of background information by s 27 reports was developed informally, a similar process could well develop to provide the information required by s 8(i).

Other possibilities include the provision of specialist reports directed by a judge or the appointment of a specialist to provide the court with such information. Funding in such cases could be accessed through the Ministry of Justice, although there is no clear legislative authority for such a step. But the District Court does have the inherent power to regulate its process. It may be a stretch to interpret that as a judge directing a ministry-funded report.

Given the clear direction in s 8(i) that an offender’s personal, family, whānau, community, and cultural background, in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose, must be taken into account, and given that most sentences have an element of rehabilitation to them, it is incumbent upon lawyers to look for creative solutions to bring this information to the attention of the sentencing judge. ■

 

David Harvey is a retired District Court judge and a member of Sangro Chambers

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