Discounting Cultural Issues

Abstract

This paper considers the use of section 27 of the Sentencing Act 2002 and its application in the sentencing process. Section 27 allows a defendant to put forward background and cultural information which may have an impact upon a sentencing outcome. Section 27 and the previous section 16 of the Criminal Justice Act 1985 have, until recently, been underutilized but their increased use, especially in the context of the New Zealand sentencing process, have raised a number of issues about how this information should be factored into the calculation of the sentence to be imposed.
The paper commences with a brief outline of the New Zealand sentencing process and then goes on to examine section 27 itself, its historical background and purpose and then proceeds to consider the way in which the Courts have approached the use of section 27 and the development of three main themes that arise in the cases, those being themes of deprivation, the need for a causal nexus between the matters raised in the report and the issue of culpability for offending and the general approach to cultural factors, locating these within the principles and purposes of sentencing in general.
The paper concludes with some general observations and some recommendations for practitioners who may wish to profer section 27 reports as a part of the information that may be taken into account by the sentencing Judge.

Keywords: Sentencing, Cultural Discounts, Sentencing Policy, Statutory Development

JEL Classification: K10, K14, K30, K40, K41