Place of culture in sentencing
‘‘Excessive and problematic alcohol consumption has been a dominant feature of Ms Heta’s life.’’
Rachael Heta was drunk when she stabbed her partner four times. One of the blows punctured his lung and he spent almost two weeks in hospital. Heta pleaded guilty to three charges. The trial judge felt her crimes warranted prison for six years, eight months but applied various discounts to reduce her sentence to three years, two months. The Crown appealed.
Among those discounts was a 30 per cent reduction for what the appeal judge, High Court Justice Christian Whata, described as Heta’s awful upbringing and personal circumstances, as well as ‘‘systemic Ma¯ ori deprivation’’.
‘‘Excessive and problematic alcohol consumption has been a dominant feature of Ms Heta’s life since she was 10 years old,’’ Justice Whata wrote.
Heta’s schooling was intermittent and her formal qualifications none.
Her personal relationships were marked by violence and her upper body was prominently scarred. The partner she stabbed was also a heavy drinker and their relationship had ‘‘more bad than good days’’.
The trial judge was permitted by the Sentencing Act to take these personal matters into account. Also taken into account were the ‘‘effects of colonisation on Ma¯ ori communities’’.
Since colonisation, Ma¯ ori have disproportionately been among the poorest, most illiterate and most criminalised people in the land. Justice Whata summarised this ‘‘pervasive and persistent social disadvantage’’ as ‘‘systemic Ma¯ ori deprivation’’, finding ‘‘no obvious reason’’ to exclude deprivation when considering sentencing.
The Crown’s appeal did not challenge systemic deprivation as a factor in deciding the appropriate discount but argued the discount was too much and Heta should only have got 10 per cent.
It argued ‘‘cultural norms cannot excuse [violent] conduct for some groups but not for others. While those norms may help to explain, they can never justify offending’’. However, that ‘‘justice is blind’’ reasoning was rejected.
‘‘Critically, in this case, recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it,’’ ruled Justice Whata, upholding the 30 per cent discount.
Several observations are pertinent. Offenders have been allowed to call witnesses on cultural and family background matters since at least 1985, when Michael Cullen said the law was a ‘‘conscious attempt to recognise in particular the importance of trying to meet the needs of Ma¯ ori offenders . . .’’
The current law dates to 2002 and greatly expanded on the 1985 version. There have been many ministers of justice since 2002, National and Labour, and none have changed this aspect of the law or the mounting precedent on its use.
Another is that Parliament didn’t tell judges how to use information on the ‘‘personal, family, wha¯ nau, community, and cultural background of the offender’’. It was left to judges to apply the law to the facts and defendant in front of them.
The Crown should probably appeal this decision. It has already conceded the effects of colonisation on Ma¯ ori can be taken into account at sentencing but the Court of Appeal should cast a critical eye over how far it can be taken and when.