If it stays true to its campaign promise, the incoming National government will sometime within the next 100 days remove taxpayer funding for “cultural” reports, put together under s 27 of the Sentencing Act 2002 to give judges detailed information about an offender’s background in a bid to reduce his or her sentence.
But if National’s likely coalition partner, Act, gets its way, these reports will be scrapped altogether. Describing the system as “rotten”, Act leader David Seymour says cultural reports cost taxpayers $7.56 million – or $630,000 a month – in the year to 30 June 2023. That’s a 27% rise on the previous year’s $5.91m and a big jump on the year to 30 June 2018, when taxpayers stumped up only $3,333 a month for cultural reports.
Incoming Prime Minister Christopher Luxon says the practice has spawned a cottage industry that’s lowering sentences and taxpayers are footing the bill. “National is going to unwind this growth. Offenders will still be able to ask the court to hear from someone who knows them, but taxpayers won’t be paying for that,” he says.
Luxon also wants sentencing discounts capped at 40% and, most controversially, has pledged to reintroduce mandatory sentencing by reactivating the three-strikes law, which Labour repealed in August last year.
Unsurprisingly, those who work in criminal law predict the new government will have a massive fight on its hands, especially if Act prevails and offenders lose the ability to present cultural reports or have their backgrounds considered in some other way during sentencing.
Retired District Court Judge David Harvey, who sat in south Auckland for much of his 33 years on the bench, says he has kept a database of every case where s 27 was featured, along with an indication of what the discount level was. On average, most cases came in at 15%.
“And there are some cases where there has been a s 27 report and the judge has been able to say, ‘I can’t find any contributing factors to the offending, any contributing link to the offending from what I’ve read in the s 27 report. Therefore, no discount’. Just because you’ve got a s 27 report doesn’t automatically mean you’re going to get a discount.”
For a mitigating factor to be taken into consideration, there must be a causal nexus between the matters raised in the report and the offending. Because cultural reports are funded via legal aid, the simplest way of cutting taxpayer funding is to make legal aid no longer available for this purpose. But Harvey notes s 27 makes no mention of written reports, meaning family members and others could still get up in court and have their say about the offender. And s 27 reports could still be funded privately by offenders who could afford it.
Judges, he says, prefer written reports to oral submissions. “The reality of it is that this material is often so detailed and so dense that from a judicial point of view, you need some time to think about it and evaluate it.
If Act gets its way and s 27 is repealed, Harvey says one should never under-estimate the creativity of lawyers and judges who will then turn to s 8 of the Sentencing Act which states the courts must take into account an offender’s personal, family, community and cultural background. A judge could therefore order a report to comply with s 8(i). “It’s conceivable that you could still get some kind of legal aid funding for that report under s 8(i) that you mightn’t get under s 27. I imagine they would anticipate that, so s 8(i) would then have to be repealed as well.
“This means that judges would be unable to take background into account, at least as far as the statute is concerned. But, as I say, never under-estimate the power of creativity of a judge or a lawyer because there’s another funny concept that lies in there – and it’s called ‘justice’. It would be unjust not to take into account the causes of crime so that we can address those causes by rehabilitation. And the only way we can take into account the causes of crime is to look at this guy’s background.”
Harvey is no fan of mandatory sentencing and does not support the reintroduction of the three-strikes law, nor a 40% cap on sentencing discounts. “Even the staunchest redneck is going to recognise that every case is different. And if they were going to do it to me, why I’d want my circumstances taken into account.” One way judges might get around the 40% cap is by lowering the starting point for sentencing by 60%. “Let’s just say if you were to express a starting point as a range, you would see the range for starting points as being a lot wider.”
On three strikes, he says judges need the flexibility and discretion to deal with each case not only according to law but according to the circumstances of each case. “Three strikes really interferes with that. And we all know that there were occasions when judges would go through all sorts of intellectual gymnastics to avoid imposing a third strike when it would have been completely unjust to do so, when your third strike was still strikable, but it was something so trivial and minor that it didn’t warrant the maximum.
“If they try to bring these things in, they’re going to have a fight on their hands that you wouldn’t believe.” Not just with the Criminal Bar Association but the bar at large “and, I think, the wider legal profession who are still interested in justice will really get their dander up in a big way”.
A solution, he says, might be for the judiciary to take the lead and do something radical and unconventional and start explaining to the community what’s happening and why. “If the Chief District Court Judge or the Chief Justice or the President of the Court of Appeal or the Chief High Court Judge were to say ‘there’s been a lot of talk about sentencing discounts and how long they are. This is why we do it, and this is how we do it. And we’re doing it according to law.
“We’re not making this up as we go along. It’s all there in the Sentencing Act, and we’re just applying the Sentencing Act’ and explain it that way. ‘This isn’t some left-wing pat them on the head and send them away. This isn’t like Andrew Coster’s community policing by consent or anything like that. This is making the law work in a fair and just way.’
“And it might be time for that convention of judges speaking only through their judgments to take second place to a proper community understanding of exactly what is going on.” ■