Does a criminal’s ‘appalling upbringing’ require softer punishment?

Growing up in a violent and dysfunctional home had a devastating impact on Samuel Ryan, who attempted suicide several times in his early teenage years.

He was the first of four children born to teen parents. His father constantly meted out violence to him and his mother and routinely subjected them both to other controlling and intimidating behaviour.

Aged 14 and unable to cope with the violence any longer, Ryan (not his real name) ran away. He lived on the streets for nine months and started using alcohol, cannabis, and methamphetamine.

Later he went to live with his grandmother and tried to go back to school but the transition was too difficult and he was expelled. At 16, he had his first serious relationship and was devastated when it ended as it had provided a sense of stability. He started self-harming.

His difficulty with intimate relationships has been a continuing theme since then and now, aged 21, Ryan has adopted the same violent controlling and manipulative behaviour he learned from his father.

Last year he was convicted for violent offending against two former partners, wilfully attempting to pervert the course of justice in relation to one of them, and of sexual connection with a young person.

He was sentenced to two years and seven months by a judge who acknowledged a link between his upbringing and his offending.

Justice Minister Kiri Allan. Photo / NZME
Justice Minister Kiri Allan. Photo / NZME

Ryan’s background is not unlike many others who appear before the courts and, though it does not absolve them of guilt, the law recognises it can mitigate their culpability.

In New Zealand, section 27 of the Sentencing Act 2008 allows an offender to request the court hear from any person as to how the cultural background, whānau and community support available to the offender may be relevant in respect of possible sentences.

In Ryan’s case, a written report, often called a Cultural Report, was ordered by his defence counsel from a specialist report writer, who noted that, surprisingly and notwithstanding his upbringing, Ryan had a good level of insight about his offending.

“I remind myself of my dad and I’m really controlling. My behaviour, that’s toxic,” he said in the report. “Yep, I’m what’s wrong with the relationship. I go out with these kind girls and I’m ‘out the gate’ insecure and paranoid, scared and vulnerable”.

As a direct result of that report, Ryan got 20 per cent discount off his sentence.

The use of cultural reports — particularly written ones like Ryan’s — in defence submissions at sentencing has increased markedly since 2019, creating an industry for those writing them and often at the expense of the taxpayer.

Figures released to Open Justice show the number of invoices for written reports approved by the Ministry of Justice rose from 74 in 2018 to 2,333 last year. As of April this year they were already at 1066. Costs have increased from around $865,000 in 2019 to more than $6 million in 2021.

As the number of commissioned reports being used in court climbs their usefulness has come under greater scrutiny, with questions being asked about whether they are really necessary.

Has the time come to axe them?

Some judges say the reports have moved well beyond what the legislation intended – that many commissioned reports are unnecessarily complex when all that was ever required was for someone well familiar with an offender’s background to tell the court about it in person.

Some also say an offender’s background information should be routinely included in the pre-sentence reports written by probation officers, where there is also legislative provision for it.

The Act Party has gone as far as calling for consideration of background factors in sentencing to be axed altogether.

Leader David Seymour recently pointed to a case where two Mongrel Mob members who were running a major meth operation each received 25 per cent off their sentence because of their upbringing.

“What about the countless lives that have been ruined by the methamphetamine they produced and distributed?” he asked.

“These reports are leading to massively reduced sentences for some of our most hardened criminals. By focusing on the background of the offender our justice system is failing to properly acknowledge the victim”.

Proponents of the reports say they provide valuable insight into underlying reasons for offending – not only for the court but for the offender – and help identify the issues that must be addressed for rehabilitation.

In this respect, they can be carried through to the parole process.

They add that there is too much emphasis on the cost of the reports while the benefits of them are grossly underestimated.

The costs, length and detail of the specialist written reports vary considerably. Costs range from hundreds of dollars to thousands.

Information provided to Open Justice reveals the largest invoice for a cultural report in a criminal case last year totalled $5770. That included the writer charging $200 per hour for nine hours spent scoping, interviewing, researching, and debriefing. A further 12.5 hours was then spent writing the 24-page report.

The invoice also included 8.5 hours of cultural and communication services provided by a linguistic specialist at $110 per hour.

A spokesperson for Justice Minister Kiri Allan says the reports are “an incredibly important measure used by the judiciary to understand the context of a person’s life” and that “the Ministry had completed work aimed at addressing cost pressures and streamlining the commissioning of Section 27 reports”.

There is also wider work under way to improve the cultural responsiveness of the courts through various initiatives such as Te Ao Marama – a judicially led kaupapa for the District Court that aims to make the court experience more inclusive for all participants, including victims and their families, the spokesperson says.

Why Bother?

The need for background considerations is a well-established factor in sentencing throughout the Western world and recognises the circumstances of one offender are not the same as for another and that law must account for this in order to achieve just outcomes.

For offenders, the Sentencing Act specifies the court must “take into account the offender’s personal, family, community and cultural background when imposing a sentence and the sentence must also assist in the offender’s rehabilitation and reintegration”.

The court learns of an offender’s background either as part of the routine presentence reports that probation officers write or by way of a verbal or written cultural report – which is available for anyone, not just Maori or Pasifika as some people wrongly assume.

A discount given for background factors is at a judge’s discretion and typically ranges between 10 and 30 per cent, provided there is a causal link between the offender’s background and their offending.

Judge Greg Davis. Photo / NZME
Judge Greg Davis. Photo / NZME

Three Northland Judges – Keith De Ridder, John McDonald, and Greg Davis – are among those who have recently questioned the need for written cultural reports.

Davis said during a sentencing this year that all he required of a Section 27 report was for someone who knew the offender’s background well, to come to court and speak to him directly.

McDonald views the commissioned reports as an unnecessary departure from the original intention behind Section 27.

During one sentencing he said the report process had changed from the family coming into court and giving an oral report to “people who think they can write these reports producing very thick documents quoting every manner of research”.

Judge John McDonald. Photo / NZME
Judge John McDonald. Photo / NZME

The judge described the report produced for that sentencing as “a lengthy written document”. It appeared to be based only on what the offender himself told the author and on input from his girlfriend of the past nine months and her mother, the judge said.

But anything those women had learned about the man’s background would only have come from the offender himself, the judge said.

He said some of the report writer’s comments strayed well into topics on which the writer was not an expert to speak.

The authors referred to an overseas study he had never heard of, and he had “no idea at all” if it was an internationally accepted way of coming to conclusions as to how deprived a person’s upbringing was.

Throughout the report there were numerous footnotes to articles and publications he had never heard of and to books he had never seen. He questioned whether the report writers expected him to go and read them for himself.

On the face of it, what the report writers seemed to have done was to have given a “very fair view” of the offender’s “appalling upbringing” and then attempted to wrap it in science to give it more weight, the judge said.

It was unnecessary, he said. Given his experience in the District Court, he could come to the same conclusions as the report writers without reference to those documents.

Judge Keith de Ridder also expressed “some serious reservations” about the solely self-reported content of a cultural report presented to him, when he sentenced a man for drug offending earlier this year.

Judge Keith de Ridder. Photo / NZME
Judge Keith de Ridder. Photo / NZME

The judge cited the offender’s comment in the report that of the 10 years to 2020, he had spent eight of them in prison.

“But that’s palpably wrong”, he said, noting the man’s first term of imprisonment was in 2014 and was for a term of four years.

“So clearly that assertion is wrong, so that’s why I hesitate,” the judge said.

However, he said the content of the report was mainly consistent with that in a pre-sentence report produced by the probation service and one from a programme provider, each of which established some connection between the man’s ongoing offending and background factors in his life.

The judge ultimately gave him 15 per cent discount for those background factors.

Past Law Society President and defence lawyer Tiana Epati says it’s hard to know what form of report the legislation intended – written or oral -as policymakers clearly worded it quite openly.

However, she believes that for the most part an oral report is fine.

Epati says she sees Section 27 as simply a vehicle for information to be provided to the court about the offender’s background and what the future holds but accepts there could be a need to “re-educate” the legal profession that big expensive reports were not required in every case.

She knows of several cases in which representatives for offenders would present background information verbally to the court.

However, she acknowledges there is a trend towards getting specialist writers to produce cultural reports because bigger discounts tend to be given for specially prepared written reports. This is because judges tended to place more value on a written report filed in advance of the sentencing hearing, which is when all the preparation was done.

Not only that but “often people don’t have friends and family who can come along and speak on their behalf”, she says. Part of the reason some people are in the predicament they are in, is that they have grown up with no supportive family. It might be that the only person they have to speak on their behalf is a partner.

Defence lawyer and past New Zealand Law Society President Tiana Epati. Photo / Supplied
Defence lawyer and past New Zealand Law Society President Tiana Epati. Photo / Supplied

Though some probation report writers certainly cover the sort of background factors specifically traversed in cultural reports, Epati says there is no consistent approach across the board and there is often a need to supplement that information.

A complex feature of New Zealand’s socio-economic makeup is the post-colonial systemic deprivation many Maori still endure. And in cases where that is an underlying cause of offending, it is necessary to engage a consultant with appropriate historical knowledge, Epati says.

“There is a place for someone with a historic background or even a clinical psychologist’s background who can say this is the person’s background these are the factors which led them to this place and this is what ‘good’ could look like for this person.”

Epati says the reports have a dual purpose. One is to set out an offender’s background so they are not just a blank face in a summary of facts and to help the judge to understand what happened, particularly when someone who “out of nowhere” has acted in an extreme or out-of-character way.

But more importantly, the reports can highlight a rehabilitation plan and allow judges to ascertain the measure of comfort they can have that an offender won’t re-offend or stray from a path of rehabilitation – that they should be given another chance.

Sometimes, Epati says, defence lawyers overlook that second necessary limb to the report, but it’s a standard part of a plea in mitigation.

“You don’t need an extensive report to do that and I have to say I’ve only ever used a written report a couple of times. Every other time I’ve used people from the community or (the offender’s) family.”

Costs overemphasised, benefits underestimated

The Managing Director of Cultural Reports NZ, Shelley Turner, says public discussions about cultural reports usually overemphasise the costs involved and underestimate the fiscal, therapeutic, and social benefits.

Data previously released by Corrections shows the cost of keeping someone jailed in New Zealand is about $150,000 per year.

Turner says even if a report costs up to $6000 (based on the data obtained by Open Justice), if it leads to a lengthy prison term being reduced by say, a year, the fiscal benefit alone are huge.

Cultural Reports NZ Managing Director Shelley Turner. Photo / Supplied
Cultural Reports NZ Managing Director Shelley Turner. Photo / Supplied

For many offenders, the process of getting a report is the first time they have felt genuinely heard and able to unpack their lives and gain more of an understanding of the causative factors to their offending. “They learn about their trauma and how to start a healing process for themselves,'” Turner says.

It is an opportunity to guide offenders towards more positive pathways.

Though there has been considerable media focus on the cost of cultural reports, she notes that other specialist reports used in court such as those produced by psychologists, private investigators, and forensic experts, cost far more yet are never subject to this scrutiny.

“When you look at the demographics of those producing cultural reports and those producing all other types of reports, it’s hard not to think that all this negative attention in mainstream media around cultural reports rests squarely in racially-motivated political issues,” Turner says.

She has noticed a trend in the past four years – primarily due to the increased cost of funding reports – where the need for written reports is being triaged.

Commissions tended to be confined to cases where a written report might mean the difference between a custodial or non-custodial sentence or where they might lead to a reduction in what would otherwise be a lengthy sentence of imprisonment.

The industry is more regulated than critics suggested, albeit not in a formal way, Turner says. Cultural report writers are able to establish a level of rapport with offenders beyond that achieved by most probation officers. Offenders’ background information is not always well presented by probation officers and due to that, offenders hold a level of distrust towards them. Offenders are more likely to disclose relevant information to a cultural report writer, especially to those who had lived experience of the criminal justice system.

Turner acknowledges there is a risk with purely self-reported information but skilled interviewers quickly built a rapport with offenders, where it was possible to ensure quality and depth of information, she says. Writers also sought corroboration of that information from the offender’s whanau.

Shelley has a team of writers who contract to her – all with relevant university qualifications.

They rely on empirical research in compiling their reports and have never had any negative feedback about this aspect of their work, Turner says.

Ryan was originally sentenced to five years and 10 months imprisonment but that was found to be manifestly excessive by the Court of Appeal, which reduced the term to two years and seven months, partly because of his background.

In a judgment released last month, the Appeal Court said the previous sentence did not accurately reflect that the offending, albeit very serious, was of limited duration; that the sexual offending was consensual (albeit unlawful); and that Ryan came from a severely disadvantaged background, which had a clear causal link to his offending.

The Appeal Court said that given Ryan’s background, youth, the level of insight he showed, and the considerable extended whanau support he now had, a focus on his rehabilitation should have been paramount in his overall sentence.

Because of his background, his risk of reoffending was assessed as high. But the probation service also noted his motivation to engage in rehabilitative programmes both in prison and when released into the community, and that his level increased his rehabilitative prospects.

The author of his cultural report noted Ryan wanted to be in a loving relationship and was aware of how destructive his paranoid and controlling behaviour could be, especially when he was drinking or using drugs. He was keen to break the cycle of dysfunction and violence.

But ultimately only time will tell if Ryan can overcome the issues highlighted in his cultural report.

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