Justice

Penal reform: for Māori to rise, others must shrink

How do we solve the ongoing issues of crime prevention, prisoner rehabilitation and reduced incarceration? Reporter Vanita Prasad attended the Sir Peter Williams QC Penal Reform League annual conference to find out what's top of mind.

It’s somewhat fitting the venue for the annual Sir Peter Williams QC Penal Reform League conference sits across the bay from the Waitangi Treaty Grounds.

After all, when confronting the failures of New Zealand's justice system it’s important to have the genesis of the problem in your sights.

Highlighted in the first report from the Te Uepū Hāpai i te Ora (Safe and Effective Justice Advisory Group) is the significant failure of the Crown to live up to its Te Tiriti o Waitangi obligations.

"We know that the effect of colonisation is still being felt, with Māori facing considerable disadvantages, including disproportionate representation at every stage of the criminal justice system as both victims and offenders."

It's something the members of the Sir Peter Williams QC Penal Reform League are all too aware of.

As lawyers, NGO operators, ex-prisoners and justice professionals they have an intimate understanding that the system as it stands is failing everyone.

The stats are nothing new. New Zealand still sits above our OECD counterparts in Australia, Canada and the UK with an imprisonment rate of 206 per 100,000, and of that prison population, 51 percent are Māori.

“It’s time the public stood up and said, ‘we won’t have business as usual anymore, it’s costing us too much money, it’s harming too many whānau families and it’s got to stop."

Developments over the past 30 years to curb criminality with punishment and control have done little to diminish high rates of reimprisonment with 61 percent of released prisoners reconvicted within two years of release.

Now under the leadership of Lady Heeni Phillips-Williams, who is continuing the work of her late husband, the group continues to campaign for a penal system focused on crime prevention, prisoner rehabilitation and reduced incarceration.

This year's conference featured an increased international line-up including Fijian human rights lawyer Aman Ravindra-Singh, former Hawaiian prosecutor Lorenn Walker and First Nations tribal member Michael Fraser from Canada. 

Long-time prisoner Arthur Taylor also made his debut at the conference calling New Zealand’s incarceration rates, “a national disgrace”.

“It’s time the public stood up and said, ‘we won’t have business as usual anymore, it’s costing us too much money, it’s harming too many whānau families and it’s got to stop’,” said Taylor.

If the damning He Waka Roimata report from Te Uepū Hāpai i te Ora is anything to go by, that time might be well on its way.

Speaking with Newsroom earlier this month chair of the panel tasked with leading justice system reform Chester Burrows said feedback from 220 hui in 13 regions had delivered an emphatic call for a significant change to the justice system.

“I’m absolutely convinced there is the political will and I think that will span the different political parties.”

‘The rest you can do something with’

Taylor, who was released after 40 years in prison emphasised the importance of prisoner rehabilitation in keeping communities safe.

Eventually most offenders would return to the community and you want to know they will be equipped to lead a life outside prison, said Taylor.

“We can’t afford to have a policeman at the bottom of every street. We’d never be able to afford it and it wouldn’t happen anyway.

"There's a core group you just wouldn't release. They have no empathy for fellow human beings. The rest you can do something with."

The former ward of the state who was taken to Epuni Boys' Home as a child also highlighted the role of state care plays as a pipeline for imprisonment.

As Auckland University of Technology’s Kylee Quince wrote for Newsroom: “over 70 percent of New Zealand’s prison population has a care and protection background – many removed from families into state care. Children in care are 107 times more likely to be imprisoned by age 20 than other children.”

Former Canadian inmate and First Nations tribal member Michael Fraser spoke of the mirrored systems in New Zealand and Canada where Indigenous peoples made up a disproportionately high percentage of prison populations.

Fraser, whose own mother and grandmother were residential school survivors, grew up in an urban environment with little connection to his Cold Lake tribal heritage and was 14 the first time he went to juvenile detention.

He spoke about the role poverty and family violence played in his early life which led to decades of drug abuse and criminal behaviour.

Fraser said it was only when he was given the option to go to an Aboriginal healing lodge run by Correctional Service Canada, rather than a regular prison that he was able to make a breakthrough.

It was important that the courts were able to see what role a person’s circumstances played in their offending especially given the intergenerational cycles of deprivation and violence many offenders endured.

Healing lodges take a holistic approach to corrections and use Aboriginal values, traditions and beliefs to shape services and programs for offenders.

Fraser, who has been sober for 20 years, now runs youth programs teaching Indigenous cultural practices.

Ngāti Hine Heath Trust CEO Geoff Milner said it was time that Māori organisations were empowered to take care of their people.

"In order for Māori to rise, some national NGOs need to shrink."

He also laid down the challenge for all those working in the justice sector to be proactive with reaching out to local Māori organisations relevant to their practices.

The bigger picture of sentencing

Whangarei Judge Greg Davis took his opportunity in front of the gathered defence lawyers to reinforce the importance of seeking sentencing which takes into account an offender’s cultural history.

Judge Davis said Section 27 of the Sentencing Act which allows offenders to request the court hear their personal, family, whanāu, community and cultural background when considering their sentencing, is severely under-utilised.

Successful reports could get offenders up to 18 months off their sentence which was too significant to ignore.

He said in the last year in Whangarei he’d seen approximately three Section 27 reports given to other judges but none had fallen into his lap.

It was important that the courts were able to see what role a person’s circumstances played in their offending especially given the intergenerational cycles of deprivation and violence many offenders endured.

“One of the biggest barriers is time. The justice system has a timeframe and the justice system is in a hell of a hurry to move [cases] on."

A possible shake up of sentencing for methamphetamine crimes through the potentially landmark overturning of sentencing bands was also discussed at the one-day event.

In 2005, the R v Fatu case established sentencing bands dependent on the weight of methamphetamine an individual convicted of manufacturing, importing or supplying methamphetamine was caught with.

Criminal Barrister Echo Haronga who acted as legal counsel for the New Zealand Māori Law Society at the Court of Appeal hearing said there’s much more to consider than the quantity of the drug.

The Human Rights Commission, the New Zealand Law Society, the Criminal Bar Association and the Māori Medical Practioners Association also joined the Māori Law Society in the appeal.

Haronga said deterrence relied on offenders acting as rational actors which is often not the case for people dealing the drug to feed their habit or people forced into smuggling by criminal organisations.

She referenced cases where gangs targeted solo mothers in deprived areas giving them free bags of methamphetamine to get them hooked on the drug leading them to become dependent dealers.

Haronga said hefty sentences have so far not made a difference to the methamphetamine offending and a more nuanced approach including factors such as exploitation, the role of the offender, poverty and cultural factors should be considered at sentencing.

The Court of Appeal judgment is expected within coming weeks. 

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