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Our prison rates are on judges, too

Insight from one of New Zealand's Māori, district court judges: the judiciary have as much of a role in reducing our high rates of imprisonment as defence lawyers. Teuila Fuatai reports. 

Judge Greg Davis will mark eight years on the bench this month.

The Far North native doesn’t pull punches when it comes to discussing his fellow judges and legal peers.

“I think we as judges are being failed by everybody in the system in terms of the information we get about an offender who appears before us for sentencing,” he said at the Sir Peter Williams QC Penal Reform League annual conference over the weekend.

Davis, who runs the Kaikohe-based Matariki Court, is referring to what he believes to be the underutilisation of parts of the Sentencing Act, which allows judges to consider cultural factors that have contributed to offending. The legislation also allows a judge to hold an adjournment so different forms of “punishment” can be considered for an offender before sentencing.

In a roundabout way, Davis is addressing the country’s high rate of incarceration, specifically its impact on Māori.

“If we are going to address the rate of Māori imprisonment ... we have to be doing this at every sentencing - otherwise we’re just going to fiddle with the edges and nothing more,” he said.

Currently, about 50 percent of prisoners are Māori, despite only about 15 percent of the population identifying as Māori. The country’s overall prison population is also at an all-time high - with more than 10,000 people incarcerated.

For Davis, who is a younger sibling of Corrections’ Minister Kelvin Davis, there is plenty of room for improvement from lawyers and judges in terms of reducing imprisonment rates. New Zealand’s sentencing legislation has actually allowed for an offender’s cultural context to be taken into consideration since 1985 - but it is seldom brought up, he pointed out.

“Other than in the Matariki Court which we run in Kaikohe, I cannot recall a lawyer saying to me as the judge: ‘Taihoa judge, there’s a sentencing coming up. I’d like the change to get an adjournment so that I can get information for you about this young person, his family, whānau, community and cultural background, and how that relates to the offending’.”

Davis' well-meaning address touched on other parts of the judicial system, and included insight into the challenges - and subsequent errors - for judges during sentencing. 

“I had a case in Kaitaia the other day. It was a lady who was 37 years of age. Between 27 and 37 she had committed four drink driving offences.”

At her initial appearance before Davis, she did not appear to care about her offending. “So I sent her to the cells”, he told the 75-strong crowd in Russell, Bay of Islands. However, when he reviewed the woman's case prior to sentencing, Davis decided to order a report looking at her personal circumstances and cultural background.

"The report said this: This woman is Māori. Her whānau were Jehovah’s Witness, so while they were Māori, she had no effective connection to her taha Māori for religious reasons. She was the apple of her father’s eye, until one day when she was 16, her father got drunk and beat the hell out of her. Her father then proceeded to beat the hell out of all her whanau members. She was the oldest of three children. Mum got the bash regularly as well. She decided to leave home to get away from the violence. She hooked up with a man who sadly was not dissimilar to her father. He would drink then beat the hell out of her. Every time he beat her, she would turn to alcohol herself. And in some of those instances she drove’.”

Medical records of the women also showed she had a fractured eye socket, and broken cheekbone and jaw, from assaults on two of the occasions she was caught drink driving, he said

“The report tellingly said that her coping mechanism in times of stress was to sort of crouch up and make herself smaller. Make herself invisible to her father. She did that in the dock.”

“So the judge on the day - me - misread her defence coping mechanisms and chucked her in the cells."

Eventually, with the whānau report, and a rehabilitative plan to address her addiction, the woman qualified for a non-custodial sentence, Davis said.

“She ended up with a community sentence because [I had] better information about this woman. I thought she was drinking because she didn’t give a damn what the road rules said, what the law said. I got it wrong - totally wrong.”

Judges, like lawyers, need to be reminded of the wider factors at play when an offender comes before the court.

“We are under pressure ... to do things faster, to do more of it with less resources. But, we, as judges are a member of the one of the three arms of Government - parliament, judiciary and the executive.

“We too have to be aligned not to bow to the pressures to do things faster, to do things with less resources because it serves the purposes of one of the other branches of Government. That is something that I think we, collectively as judges, need to be reminded on by lawyers.

“You [judge] will not break a system if you adjourn this to allow a plan to be brought before you if you want.” It is "self-perpetuating" and will survive.

"We need to be reminded of that," Davis said. 

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