Days before the recent sentencing in the Wellington District Court, court staff requested that the Department of Corrections’ probation services provide the equivalent of a cultural report, which would include Terry’s personal history and his time in state care, noting the judge had directed the report, in addition to a pre-sentence report, nearly two months earlier.

While the service routinely provides the courts with pre-sentence reports on offenders, cultural reports, ordered under section 27 of the Sentencing Act, describe an offender’s background and family circumstances and how those factors may have played a role in the offending.

It also looked at how a family or a cultural agency may be able to help in reducing the risk of reoffending. Last year, the Government ceased funding for the reports, citing a blowout of the legal aid budget.

A copy of Terry’s four-page pre-sentence report, seen by NZME, made no mention of the 55-year-old’s personal history or his time in state care, despite saying it had referenced its records and documents, which encompassed the man’s background. It described his offending as serious.

Terry’s lawyer Chris Nicholls told the court that given his client’s history, probation “must know heaps” about him, but their report was “a waste of words”.

Instead, Nicholls had arranged for an alcohol and drug report so Terry could apply to attend drug rehabilitation.

That report, which the judge relied on at sentencing, noted Terry’s very dysfunctional upbringing, including being made a ward of the state at the age of 7. He was placed in many foster homes, where he was abused, the court heard.

Understandably, the judge said, Terry had serious alcohol and drug issues as a result of trying to blot out the traumatic experiences. He didn’t disclose further details, other than to say the report made for “very sad” reading.

Judge Harrop said if he’d relied on probation’s pre-sentence report to tell him about Terry’s personal circumstances, he’d have no idea about the terrible upbringing Terry had suffered.

He said judges were aware and had regard to the fact that for those who’d been abused in state care, the state had caused the problem that led to them being in court in later life.

The judge told Terry the abuse he suffered as a child wasn’t his fault and the actions of adults in his life who were supposed to keep him safe were “highly relevant to sentencing”.

Having been made aware of Terry’s personal circumstances, the judge granted a further 20% discount, resulting in an end sentence of 20 months’ jail, with leave to apply for home detention.

The judge said he hadn’t been able to grant home detention because probation hadn’t recommended it.

Corrections’ response ‘disingenuous’

In response to questions about the hearing, Corrections told NZME it had advised the judge both in court and in writing that it doesn’t produce section 27 reports.

Its pre-sentence report made sentencing recommendations to the court based on a range of information, including offending history, willingness to engage in treatment and domestic, employment and cultural circumstances.

Brigid Kean, Corrections’ general manager of communities, partnerships and pathways, said a probation officer assessed Terry as being unsuitable for a Hōkai Tapuwae report. Such a report was a cultural intervention that informed treatment pathways for Māori in prison and was similar to a cultural report.

But Corrections agreed its report hadn’t considered the possibility of an electronically monitored sentence, which it attributed to “human error”. It has now reminded staff of the correct process to ensure this doesn’t happen again.

Nicholls described Corrections’ response as “disingenuous,” saying it appeared to hide behind bureaucracy.

“Their task is to reduce reoffending and to provide information to a judge that’s relevant about a defendant, so the judge can make a decision about an appropriate sentence. But ultimately, the idea is to try to ensure the risk of reoffending is reduced,” he told NZME.

Asked how he was providing information at sentencing about an offender’s background without a cultural or a Hōkai Tapuwae report, Nicholls said he presented the court with sworn affidavits from his clients.

Alcohol and drug reports also often provided useful background, but Nicholls said another senior Wellington judge had commented recently that defendants were requesting these reports, despite having no addiction issues.

Nicholls said the judge made it clear there had to be a legitimate alcohol and drug problem for them to order a report.

However, he said these should not be used in place of a cultural report.

While he agreed there had been a wide variation in the quality of the cultural reports, they often provided real insights into why someone had offended.

“I’m a lawyer, I’m not a sociologist, I’m not a researcher, I’m not an anthropologist, and you need people with those skills sometimes to get to the bottom of what’s truly happened with these people.“

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.