Judges highlight cultural context for offending

Dismayed at the increasing number of Māori in our prisons, judges are pushing for greater analysis of cultural and personal circumstance at sentencing. Teuila Fuatai reports.

Being familiar with the pain and damage crippling far too many Māori communities can sometimes blind those supposedly sitting on the right side of justice.

Judge Greg Davis, who runs the Matariki Court in Kaikohe, shared the confronting sentiment at this year’s Te Hunga Rōia Māori annual conference.

Alongside two of his judiciary peers, Davis recalled the most memorable report he had ever received from a whānau member regarding the background and cultural circumstances of an offender.

The case concerned a young Māori man who had assaulted his sister while intoxicated.

“He comes into the Matariki Court, and his uncle comes in. His uncle is a pretty rough looking dude - but there’s plenty of those up north,” Davis, of Ngāpuhi, Ngāti Kahungunu, Ngāi Tai and Ngāti Raukawa descent, said through a cheeky smile.

First, the boy’s uncle explained where they were from.

“It’s a little place, not even on the map, and it’s a place that you’ll drive past and you won’t even know you’ve gone past it - like a lot of places in the north,” Davis said to the audience.

The uncle then went on to say: ‘When we grew up - and this boy grew up like this too - the only way you were measured on how good you are is how much you could drink, and how much you could fight’.

While that wasn’t an unusual scenario in the Matariki Court, the reaction of one, untypical visitor that day caught Davis off-guard.

The Secretary of Justice, “the bigwig of the Ministry of Justice”, happened to be in the Kaikohe Court at the time, and was pretty horrified at what the offender's uncle said, while everyone else in court - all of whom were Māori - simply nodded in acceptance, Davis said.

A lot of these older white male judges only see young brown faces in court.

- Judge Soana Moala

The “most enlightening aspect” of that case was that it showed that everyone - apart from the Pākeha secretary of justice - had taken their understanding of the boy and his whānau’s circumstances for granted, because his situation wasn’t unusual for Māori in the Far North, Davis said.

No one had bothered to look at how the man’s personal circumstances, and the impact of being raised in an environment where alcohol and fighting was the norm, could have been a factor in his offending - even though an entire section the Sentencing Act was dedicated to that.

In explaining the legislation, Justice Christian Whata - based at the High Court in Auckland - said section 27 “gives the offender the opportunity to cut through the normal rules of evidence and to present information that hopefully will persuade the judge that [he or she] is not to go to prison, or if he or she does go to prison, it’s for the shortest time possible”.

Currently, too many offenders were being sentenced without any information from the whānau and community on that person’s cultural and personal circumstances being provided to the Court.

To address the “systemic overrepresentation of Māori in the muster population”, this had to change, Whata said.

Judge Soana Moala, who was appointed to the bench a year ago, said even at the Manukau District Court - where many cases involved Māori and Pasifika - “section 27” reports were rare.

Adding to Davis’s points around the varied awareness of social and cultural circumstances in different types of New Zealand communities, Moala pointed out the often-limited knowledge of her own colleagues regarding Māori, and other cultures – and the role Māori lawyers had in shifting that.  

“A lot of these older white male judges only see young brown faces in court, so they only see ones that are facing really serious charges,” she said.

“[They don’t get] to see what I see all the time, which is young, talented, clever, amazing young brown faces.”

And while some judges were more receptive than others, it was important to push towards making it normal to have a whānau and community account of an offender’s background in court sentencing, Moala said.

“Overall, I think there is a real mood for change. The Māori judges, the Pasifika judges, the young judges, the new judges - we’re really keen. There is a movement - I can guarantee there is a movement for change.”

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