For many individuals facing sentencing proceedings in New Zealand courts, the English common law system may not be enough to accurately assess the unique circumstances of their lives. Section 27 of the Sentencing Act 2002 provides an avenue for lawyers and defendants to explain personal circumstances that can influence a just sentence outcome, such as social failures faced by the defendant or any support available to them. This additional factor can be taken into account and potentially prevent disproportionate sentences, such as imprisonments.
Cultural reports can play a significant role in the sentencing process by providing an understanding of the defendant’s cultural background, familial ties and upbringing that may not have been previously considered. It is essential to choose carefully who will write the cultural report, as it must be provided by someone with a thorough insight of the defendant’s culture and who is able to communicate this clearly. A compelling and accurate cultural report should ensure that the defendant receives a sentence reflective of their personal circumstances.
What are section 27 cultural reports?
Section 27 of the Sentencing Act 2002 provides that a defendant may make a request for the judiciary to hear the findings of a personal cultural report. If the defendant does not request a cultural report, alternatively the Courts may ask for one on their behalf as per subsection (5) of section 27.
Cultural reports are contextual essays outlining the personal background of a defendant. The content of a cultural report may include but aren’t limited to childhood history, whakapapa/genealogy, education, employment history, and overall comments about the defendant’s character as a person. There may also be recommendations in sentencing styles, encouraging a more culturally sensitive approach to address the defendant’s actions. These recommendations are provided in hopes of suggesting alternative avenues that allow defendants to feel better supported through the legal process.
All information provided in a cultural report is obtained through interviewing the defendant’s family, friends, wider community members and as well as solo interviews with the defendants themselves. These interviews help construct a narrative of the defendant as a person and their unique journey through life. Ultimately, the cultural report aims to provide some explanation of how and why the defendant in question appears before the Court. Cultural reports may also seek to explain the socio-economic positionality of a defendant, emphasising the need for a more nuanced understanding of the defendant’s circumstances when present in Court.
What Are section 27 cultural reports used for?
Cultural reports are used to illustrate the lived experience of a defendant, acting as a supplementary tool for the Courts to consider when sentencing arrives. This can be requested either by the defendant or suggested by the judge if they see necessary prior to sentencing. If requested by the defendant, the judge may adjourn sentencing to grant time for the report to be obtained. At sentencing, the judge may choose to acknowledge the content of the cultural report or not; it is purely discretional.
The organic nature of which it is written in must embody the cultural importance of the defendant and their supportive circle of friends and family. Cultural reports are to carry the essence and knowledge of which it aims to speak to in order to truly be impactful for the judiciary. Cultural reports are often used by the judiciary to explain reasons why the defendant may have offended, supported by background information about their lives, circumstances and ultimately decisions that resulted in their appearance within court. It is important to remember that while everybody has a range of choices, these choices are conditional to one’s circumstances. This is a key essence embodied within the content of a cultural report, expressing to the courts that the actions of offending may not be as black and white as they appear to be.
It has been expressed through a critical study by Tara Oakley that cultural reports act as a tool to educate the judiciary on different cultural backgrounds and the importance of these ties for a defendant in question. This volume of crucial information cannot be provided outside of a cultural report and can be viewed as a huge learning opportunity for the judiciary, especially for non-Māori or non-Pacific judges. The same study by Oakley expresses that the cultural report is also used to enlighten the offender and reduce recidivism rates with their culturally inclined recommendations.
Most importantly, cultural reports supplemented by section 27 of the Sentencing Act 2002 are used for discounting the sentence of a defendant. This discount is ultimately discretionary by ranges from around a 10-15% discount. These reductions given the Court may been as a small chip to a larger iceberg, but can be transformational in the type of sentence your client may serve.
Why are section27 cultural reports important
As expressed in the graph above provided by the Ministry of Justice, cultural reports are increasingly rising in demand and use throughout the legal sphere. They provide us with an account for one’s personal circumstances, emphasising the need for the Courts to stray from such rigid applications of the law; urging to consider potential reasons as to why a defendant may be appearing in Court for their offences. These reasons may be part of the contextual narrative yet still vital in framing a wider picture that needs to consider factors such as recidivism, socio-economic status, familial pressures, or obligations, and overall, the social positionality of the defendant in question. Again, as previously stated; everybody has a range of choices, however these choices are conditional to one’s circumstances. The substance within a cultural report recognises that there are vulnerable bodies within society and there is nuance to be found within specific communities, especially where there are high rates of incarceration, recidivism, and poverty. Merely painting the defendants actions as a conscious choice and nothing more is a surface level approach to a deeper narrative that deserves to be heard in Court.
The cultural report encourages the court to be available to acknowledge the sensitivities of a specific community that a defendant may originate from. Common law procedures may be too rigid and forget that there are particular groups of people who operate under different circumstances or social realities. These circumstances fall outside of what is recognised within the English common law standards. Cultural reports encourage the judiciary to tap into wider recognitions of the diverse ways of living within New Zealand society, especially as a melting pot of multicultural backgrounds.
Section 27 of the Sentencing Act 2002 provides an avenue to explain details that may not have been previously considered or asked for by the Court. Section 27 allows your client the chance to explain ways in which society may have failed them, the support available to them, and the true nature of their character. These are all important to be taken in account, especially when faced with the threat of incarceration for a potentially disproportionate offence.
Cultural reports have been described as “a turning point in a person’s life” by law lecturer Māmari Stephens and may prove to have crucial implications in the sentencing process for your client.
Why are these final efforts important? Because they could be the final piece in avoiding punitive, lengthy sentences. The submission of a cultural report could be the total difference for your client serving their sentence outside of prison and at a shorter length.
Where can you get section 27 cultural reports?
There are several suppliers that can help provide you with a decent cultural report for your client. However, as previously mentioned, it is vital your cultural report is rich in insight for your client and speak to their specific circumstances. This means utilising a provider that has the cultural competency, sensitivity and can speak to the experience of one’s culture themselves. Positionality within a cultural report is another key essence that must be embodied in order to present a strong Section 27. This means that the relationship between the defendant and the writer of the Section 27 is to be built with respect, awareness, empathy, and a special insight to where they come from and the familial ties that they carry. All these notions are specific to the cultural background of the defendant and their own upbringings. You will struggle to have a compelling cultural report if provided by someone without the correct insight of the defendant’s cultural background and if they are an outsider to such narratives.
The writing of the report must truly be able to capture the essence of their cultural background and highlight importance of where they come from. Cultural reports cannot be a simple job of copying and pasting. Recycling phrases of a narrative which may appeal to empathy but speak nothing of the true circumstances of a defendant and their stories does them no justice. It is their story; hence it must be told with respect and dignity. Understanding the roots of which an individual grows from is the key ingredient in a truly strong, credible, and moving cultural report.
Cultural reports form an important part of the sentencing process, as they can provide crucial insight into the defendant’s circumstances and their culture that may have not been previously considered. Section 27 of the Sentencing Act 2002 provides a legal avenue for this to be heard within court proceedings, giving defendants the chance to explain details about how society has failed them, the support available to them, and the true nature of their character. It is essential that the cultural report be written with sensitivity, respect and insight into the defendant’s culture and background in order to present a compelling narrative. Utilising a provider with cultural competency is best practice to ensure this happens, as this will give your client the best chance of avoiding punitive and lengthy sentences.