The recent decision of Justice Whata in Solicitor-General v Heta  NZHC 2453 represents a substantial turning point in sentencing policy and has the potential to drastically alter incarceration rates in New Zealand, in particular, the over-representation of Māori in our corrections system.
The High Court affirmed that judges have the power to make significant sentencing discounts for defendants where cultural reports (provided under section 27 of the Sentencing Act 2002) are provided. The “Section 27 Reports” can assist the Court in determining that culpability of the defendant was mitigated or that a strict sentence may be inappropriate.
Significantly, the decision invites the Courts to consider the systematic deprivation of Māori (i.e. the effects of colonisation on Māori communities) when assessing cultural background. Further, this decision was made despite a previous Court of Appeal judgment which had restricted the impact of Section 27 Reports.
Justice Whata determined that the defendant be allocated a 30% discount (on top of an additional 10% discount for participation in a restorative justice process) to reflect the material outlined in the Section 27 Report.
The Impetus of Section 27:
Section 27 of the Sentencing Act 2002 stemmed from section 16 of the Criminal Justice Act 1985. Section 16 was a conscious attempt to meet the needs of Māori offenders, who formed a disproportionate element within prison populations. This overrepresentation has persisted, with the 2017 Waitangi Tribunal Report, Tū Mai te Rangi reporting that Māori make up 50.8% of the population of sentenced prisoners, but only 15.4% of the population of New Zealand.
Section 27 does not require a “Māori” specific response to this overrepresentation. Instead, it invites the Court to consider material regarding the cultural background of offenders, including Māori, and to consider the relationship between that background and the offence committed. Section 27 allows the offender to request any person to speak on their behalf (or provide a written report) as to how the cultural background, whanau and community support available to the offender may be relevant in respect of possible sentences.
Impact of Systematic Deprivation:
Whilst there is no express requirement (under section 27 or elsewhere) to have regard to systematic deprivation in sentencing, Justice Whata read this as an available consideration under section 27. Justice Whata stated that the legislation required the Court to consider the “full social and cultural matrix of the offender” and that there was “no obvious reason” to “exclude evidence of systematic Māori deprivation” and how this contributed to the offending (at ). Justice Whata considered that purposes of the legislation would be best served by identifying and responding to all potential causes of offending, including where relevant, systematic Māori deprivation.
Justice Whata observed that whilst systematic deprivation cannot be “assumed” in the lives of all Māori offenders, the evidence of the presence of systematic deprivation (or social disadvantage) on the offender “need not be elaborate,” (at  – ). Further, a Section 27 Report need not overtly “draw linkages” to systematic deprivation, and instead this can be “reasonably inferred” from the material provided (at ).
The Court concluded that recognition of deprivation does not involve condoning the offending, but “rather it helps to explain it.” This evidence may inform the actual and relative moral culpability of the offender and their capacity for rehabilitation, (at ). Accordingly, his Honour felt a 30% discount was warranted to reflect this cultural and factual matrix.
The decision of Justice Whata is notable in that it creatively worked around an established Court of Appeal precedent. The decision of Keil v R  NZCA 563 outlined:
Our sentencing regime cannot be seen to condone a particular group’s use of violent force to exact physical retribution. Similarly, cultural norms cannot excuse that conduct for some groups but not for others. While those norms may help to explain, they can never justify offending of such severity as occurred here.
Accordingly, the Court in Keil refused to provide a significant sentencing discount to reflect the Section 27 Reports and effectively capped the possible discount allowed at 20%.
Justice Whata’s approach involved a determination that any binding direction from Keil must be considered in light of the material facts of that case and that the Court’s decision was determined on the basis of those specific facts. Justice Whata concluded that the Court was not laying down a general rule about discounts for personal background factors. Instead, his Honour was comfortable to determine that “everything turns on the facts of a particular case.” Implicit in his Honour’s conclusion is that a sentencing directive from a Court is only binding in relation to the specific facts that were before that Court. Arguably, any further precedential value of that decision is limited.
The outcomes of this case are substantial. First, the decision opens the door for historical cultural backgrounds (in particular the systematic deprivation of Māori) to be a highly relevant factor in sentencing. It will likely encourage the more wide-spread usage of Section 27 Reports, which until recently have been a relatively under-utilised tool in the sentencing process.
Second, the creative judicial reasoning process used by Justice Whata may raise further questions as to the value of Court precedent in the criminal sentencing process. The nature and relative ease in which an established Court of Appeal authority was negotiated around, hints that analysis of individual facts has taken priority to judicial conformity.
Whilst arguably a good outcome for altering incarceration rates in New Zealand, the decision may pose difficulties if it encourages sentencing judges to largely ignore the directives of higher Courts.