Costs balloon for offenders’ cultural reports

By Rod Vaughan

A $3 million blowout in the cost of ‘cultural reports’ that judges consult before sentencing criminal offenders has reignited the debate about the value of these reports and whether they are being used simply to obtain sentencing discounts.

Between 2019 and 2020, the number of cultural reports jumped sharply, from 346 to 1557, with the cost rising from $639,311 to $3.3 million. Ordered under s 27 of the Sentencing Act 2002, the reports are primarily funded by taxpayers and invoiced through the Ministry of Justice. They are separate from, and additional to, the pre-sentencing reports provided by the probation service.

Cultural reports are intended to give the court the background and context to the offending. But there is a perception in some quarters that they have spawned a highly lucrative industry of report writers, some of whom are not qualified for the job. An online search reveals their charges can range from $700 to $6,600 for each report.

Independent justice advocate Ruth Money believes the $3m would be better spent on rehabilitation. Seeking a report has become almost automatic, she says, “and as long as you can show some nexus between the offending and the background, then judges are routinely giving a 10% to 15% discount from the starting point”.

There are also claims that the reports, which can result in offenders getting significant discounts in their sentences, may be little more than cut-and-paste excuses drawn from a handful of templates.

But those in favour of cultural reports say they offer valuable insights on an offender that must be considered by the court.

In that camp is long-time Mongrel Mob member Harry Tam of H2R Research & Consulting, which has completed 31 s 27 cultural reports to date. Tam told LawNews he believes they are valuable for defendants in terms of sentencing and ongoing rehabilitation.

“The reports assist the court to develop a better understanding of the defendant’s causes of their offending and the steps they have taken and the support they have to address their offending behaviour,” he says. “They provide an opportunity for the defendant to have their background and circumstances taken into account by the court at sentencing.

“And if the defendant is sentenced to imprisonment, the report remains on their file and the information can be helpful for the Parole Board which may direct the defendant to complete particular rehabilitation programs before being eligible for parole.”

Tam says many offenders are illiterate and inarticulate and have often been alienated from society.

“Because of these factors, they often need people who are sufficiently skilled to draw out and share their background stories. They also need people who can help articulate their narratives and put their offending behaviour into context for the court to make fully-informed decisions.

“In our opinion pre-sentence reports have limited ability to provide an adequate picture of the defendant as probation officers may only have limited time to spend with their clients to complete their reports.”

Tam says there is an important distinction between pre-sentence reports and s 27 cultural reports.

“The pre-sentence reports are to provide the courts with formal advice from a statutory agency. Their predominant focus is to advise the court on what it considers to be the appropriate sentence, factoring in the level of risk that person poses to community safety, their ability to comply with a sentence, issues of restitution and victim’s needs.

“However, s 27 reports are predominantly focused on looking at the disadvantages that may have contributed to the person’s offending behaviour and options to address it,” he says. “Thus, the findings in a s 27 report can counterbalance the pre-sentence report’s recommendations (see Poi v R CA379/2019 and Wilson v R CA380/20).

“After the court is informed of the background disadvantages of the offender, it may reduce the severity of the sentence to home detention or another community-based sentence instead of imprisonment.”

Tam also takes issue with suggestions that the $3m spent on cultural reports would be better put towards offender rehabilitation.

“We believe this argument is disingenuous as $3m is a drop in the ocean regarding the costs of rehabilitation. Also, the reports provide valuable insights that can inform what rehabilitative processes might be effective which can inform decision-making.”

Pre-sentence reports

But Money questions the value of s 27 cultural reports, contending that much of their content is already covered in pre-sentence reports.

“Anyone who has been a regular attendee of court over the years knows full well that judges have always considered mitigating factors such as those outlined in these reports,” she says.

“I one-hundred-percent support the intention of
s 27 as a mechanism within the system to assist with an understanding of why the offender offended, but the sad and in fact devastating reality is that they all sound incredibly similar and end up with a discount to the sentence anyway.

“I guess my point is that if this is the reality in practice, which I see it is, why are we spending a huge amount of public money to write a report that says what we know to be true?

“I would rather the offenders have [a] ‘routine discount’ and the money spent on their rehabilitation. We know whakapapa and authentic connection is a powerful means of assisting in rehabilitation, so we should fund that, not report writers who have set up a business to make money from the process.”

Money says her main concern about cultural reports is they are not monitored to ensure that the authors are qualified to write them let alone whether offenders are prepared to commit to rehabilitation.

“And yes, I acknowledge there are many genuine and qualified people writing these reports, but there are also people who are not. It’s hard not to be cynical about this and see it as a money-making exercise for some people.

“I know of some people who spend hours with whanau and write good, thorough reports for free but others really are just ‘cut-and-paste’ and easy money.”

Significant impact

Criminal barrister Russell Fairbrother QC says the requirement for a judge to consider a s 27 report has been part of New Zealand’s sentencing laws since 2002.

“The judge must receive such a report if one has been prepared. The only exception is if some ‘special reason’ makes hearing the report ‘unnecessary or inappropriate’.

“It can cover five aspects of the offender – personal, family, whanau, community and cultural background – and it can provide evidence to the judge on rehabilitation initiatives and specifically ‘processes’ to resolve offence issues with the victim.”

Fairbrother says over the years he has made good use of the reports and believes they often achieve more than a discounted sentence.

“These reports are important for the offender as well. Often, nobody has asked them to look at their background or link their background experiences with their offending. The reports I’ve seen and shown to my clients have always had a significant impact on the offender and some really bad people, I’ve got to say, who have been quite moved by the contents of the reports.”

Well-placed legal insiders who spoke to LawNews on condition of anonymity say the quality of cultural reports is a mixed bag with some being reasonably objective and others nowhere near hitting the mark.

“Some are very useful but there are others which are just plainly advocacy and where you see exactly the same thing written in each report,” said one “The words and phraseology are the same and it’s quite plain they are cut-and-paste jobs.”

Another insider says a number of judges remain cynical about the reports.

“There are plenty of examples where judges have said ‘well, I’ve read the cultural report and while it’s all very interesting about the deprivation of your background, there’s nothing that persuades me to give you any discount’.”

Yet another told LawNews the plethora of reports is jamming up the court system.

“One of the real issues we’re confronting is that quite a lot of sentencings around the country are having to be adjourned because reports aren’t ready on time. Very few judges are prepared to proceed with sentencing without one so they’re causing a bit of a logjam in the system.”

Root causes

Justice Minister Kris Faafoi says it has long been acknowledged that better understanding of a person’s background and the issues in their life can help address the root causes of their offending and help put them on a path to successful rehabilitation.

“Supporters of a Te Ao Māori – Māori world view – approach in our justice system, which aims to make courts more accessible and easier to understand, believe cultural reports are essential and can provide additional insights which judges may not always be aware of.

“It could be argued that the significant increase in use of cultural reports under s 27 in the past couple of years may demonstrate their usefulness in understanding the root causes of a person’s offending and help find ways to address those underlying causes and prevent reoffending, which can contribute to better outcomes for victims.”

Faafoi says he doesn’t accept the argument that money spent on cultural reports would be better directed towards rehabilitation.

“I don’t think it should be an either/or debate. In fact, it can be argued that cultural reporting is a legitimate and necessary part of rehabilitation. Where cultural reporting can be part of fundamental, positive solutions, it can be seen as a valuable contribution to the overall spending within the Justice Vote.

“But, as Minister of Justice, I am aware that all spending within the justice system has to be both effective and sustainable. To that end, I am interested in investigating if the cultural reporting system, as it stands, is delivering as effectively as it can, where improvements might be made and how best practice can be more broadly applied.

“Ministry of Justice officials will update me on progress in these and other areas of the cultural reporting regime.”

Whatever the merits or otherwise of cultural reports, there is little doubt they achieve excellent outcomes for some defendants, with many receiving significant discounts when sentenced.

Such examples are prominently displayed on the websites of the many cultural report writers touting for business:

  • Defendant A appeared for sentencing for charges including supply of methamphetamine, possession of cannabis for sale and receiving and misuse of a document. Defendant A was given a 35% sentence discount for factors raised in his cultural report. In total he received a 60% sentence discount for these and his early guilty plea. Factoring in time served on remand and on bail, defendant A was sentenced to four months’ home detention. Special conditions included an AOD [alcohol and other drugs] assessment, counselling and tikanga Māori training. The judge cited our report throughout his summary and sentencing.
  • Defendant B appeared for sentencing for possession of firearms, possession of LSD for supply, cultivating cannabis and assault with intent to injure. Defendant B was given a 30% sentence discount on account of factors raised in the report, including neglect, abuse in care and disconnection from whakapapa and tikanga Māori. Defendant B was sentenced to three years’ imprisonment.
  • Defendant C appeared for sentencing for robbery and was given a 20% sentence discount on account of factors raised in the report, including an unsettled childhood, death of parent, drug abuse and disconnection from whakapapa and tikanga Māori. Defendant C was released with time served of nine months and issued a first strike warning.
  • Defendant D appeared for sentencing for threatening to kill a police officer and assaulting a police officer with a blunt instrument. As a result of factors raised in our report, including miscarriage of justice in his arrest due to his poor physical and mental health, defendant D was released with time served of seven months.
  • Defendant E appeared for sentencing for manslaughter. As a result of factors raised in our report, defendant E was sentenced to four years’ imprisonment. The sentencing judge complimented [us] for the helpfulness of our report. We were also able to negotiate for the defendant to serve her term in a youth justice facility until she was 18. The defendant has been released on parole after serving two years of her sentence.  

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