Reviving cultural connections and the need to advocate for cultural reports under section 27 of the Sentencing Act 2002 for reimagining whanaungatanga

Abstract

This thesis critically questions whether the incorporation of whanaungatanga can lead to a more equitable New Zealand criminal justice system for Māori. Associated with this aim, this thesis explores how a better understanding of whanaungatanga could improve the prison system and the current Māori overrepresentation in it. The thesis argues that an enhanced understanding of whanaungatanga and its utilisation under s 27 of the Sentencing Act 2002 can reframe interpretation of and response to Māori prisoner statistics. Furthermore, it is suggested that whanaungatanga can offer a Te Ao Māori framework that can complement a Western legal paradigm to provide a basis for holistic and more equitable reasoning within the criminal justice system. The research addresses the broader historical context in which colonial constructs have impacted traditional Māori legal norms such as tīkanga and whanaungatanga. The historical context offers a perspective for examining the relationships between Māori and colonial settler laws, shedding light on the current social inequalities. The research aims to investigate the reasons for Māori over-representation in the New Zealand prison system and suggests alternative pathways for transformative, equitable outcomes. As a way forward, in contrast to the current approaches that reference tīkanga in different legal disciplines, this research aims to establish common ground for whanaungatanga and its acceptance in society and the courts. In investigating the potential role of whanaungatanga in s 27 of the Sentencing Act 2002, this study reviews literature on whanaungatanga and compares it with traditional knowledge of whanaungatanga as a legal norm, value system and range of practices. Further, the literature examines challenges associated with the application of tīkanga in sentencing and clarifies the meaning of whanaungatanga and its potential employment in sentencing decisions. The study employs three data sets. The first data set consists of population census surveys of the 19th century. I present this data in Te Ūpoko Tuawhā/Chapter Four. The data is compared with Māori prison population statistics in the 19th, 20th and 21st centuries. The comparative analysis of this data provides an empirical foundation for examining differences and similarities between data sets, as well as identifying problematic trends. This data establishes the foundation for investigating some early New Zealand trials and the systemic deprivation experienced by Māori, discussed in Te Ūpoko Tuarima/Chapter Five. The second set of data comprises records of three categories: cases when s 27 cultural reports are applied; cases when cultural reports are considered but not applied; and cases when cultural reports are not considered. The qualitative analysis in Te Ūpoko Tuaono/Chapter Six of the differences in sentencing decisions for similar offences raises concerns about social justice. The third data set is based on interviews with judges which were designed to investigate the factors influencing sentencing decisions (Te Ūpoko Tuawhitu/Chapter Seven). Thematic analysis of this data provided the basis for identifying patterns and recommendations for improvements. The research findings revealed that whanaungatanga plays a significant role in s 27 cultural reports compared with pre-sentence reports that do not provide judges with causative material. Although s 27 cultural reports focussed on having cultural speakers, cultural reports were argued by participants to be more reliable because they are a permanent record. Furthermore, defendants could read their reports and sometimes find out their whakapapa (genealogical ties) for the first time. Research findings suggest that society could understand whanaungatanga easily because the process is already happening in the courts and the communities. The study also found that a breach of the right to a fair trial, if impacted by the court’s reluctance to accept a s 27 cultural report, would lead to a criminal case review pending legal aid assistance. A further finding was that the sentencing discrepancies for similar offences raise concerns about recidivism, remand prisoners, and intergenerational trauma affecting children was more prevalent amongst low socio-economic whānau families. The study found that debate about the relative fiscal costs of accommodating prisoners and money spent on cultural reports bypasses the main issue. Māori over-representation in the prisons will not be reduced unless society acknowledges a consistent application of whanaungatanga as a transformative approach to changing the status quo.