Discounting Cultural Issues Revisited

Abstract

This paper considers the use of section 27 of the Sentencing Act 2002 (New Zealand) and its application in the sentencing process. It was first developed in 2020 following upon the decision of the New Zealand Court of Appeal in the case of Carr and Anderson v R. This iteration of the paper updates matters and records developments in the use of section 27 in the latter part of 2020 and through 2021 and 2022.

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 then goes on to track developments since the decision in Carr and Anderson v R. It examines the issue of causality and the extent necessary to engage consideration of a discount following the proffering of a section 27 report and concludes that section with a discussion of the case of Waikato-Tuhenga v R which softens the causal nexus and identifies some areas which a Court may take into account in fixing a discount.

The paper then goes on to consider and attempts to crystallise in a general sense some of the factors that a Court may take into account in fixing a discount and some of the brakes that have been identified which prevent too generous an approach.

The paper concludes with some general observations and some recommendations for practitioners who may wish to proffer section 27 reports as a part of the information that may be taken into account by the sentencing Judge. It includes a discussion of the way in which counsel may argue for an evaluative approach by ascribing discrete sub-categories of a discount which may be of assistance to a Judge in carrying out his or her own sentencing task.

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

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