The main problem with defunding the reports is that judges will not have the same level of access to information they need to decide on a proper sentence, a former district court judge says. Photo: 123RF
Advocates are decrying the government's decision to remove funding for the cultural and background reports used in sentencing.
The government has confirmed it will scrap legal aid for Section 27 reports, saying they had led to a "cottage industry" that had cost taxpayers millions of dollars and shortened sentences.
Justice Minister Paul Goldsmith said 2500 reports were prepared last year at a cost of $7.5 million. There was no evidence to suggest they had saved the government money by avoiding prison sentences and stopping people committing further crimes, he said.
Prime Minister Christopher Luxon said the changes would not discriminate against lower income defendants, because anyone could still get family or friends to orally explain their circumstances in court.
However, criminologist and Section 27 report writer Dr Juan Tauri disagreed, and said lawyers would still get reports written for some clients: "Those who can afford them - which will not be working class or poor Māori, Pākehā, Pasifika, et cetera."
A researched report by an expert might carry more weight than a family advocate's oral submission, Tauri said.
"One of the reasons why they evolved as they did and became popular with lawyers and with judges even, is because it was often so difficult for people to go into court and to speak in a manner that can express clearly the core issues that are driving the offender's behaviour.
"[The government] know full well that many in our communities do not have the social capital to make the impression that's required ... [saying] that anyone can talk or speak is hugely simplistic, frankly I think it's condescending in many ways, because they must be aware of how difficult that is.
"It's also terrifying ... Māori for example, a lot of our whānau have extensive experiences of the court, and they ain't good experiences."
'Extremely helpful for sentencing judges'
Former district court judge Dr David Harvey said the main problem with defunding the reports was that judges would not have the same level of access to information they needed to craft a proper sentence.
"They're extremely helpful for sentencing judges ... the point is that at the end of the process, a judge should be able to craft a sentence that can possibly even address some of these problems for the purposes of rehabilitating the offender so that offending won't continue."
Dr Harvey acknowledged the legislation was not written with the intention of having experts create reports but said the quality of information they provided was necessary. He said oral submissions could lead to sentencing delays, and noted that speaking in court could be daunting, even for lawyers.
"Imagine what it must be for a layperson who has no experience in this, and who's being asked to talk about highly personal information in front of a judge, a courtroom full of lawyers, a courtroom full of the public.
"With a written report, a judge has the opportunity to contemplate the contents of that report while preparing for the sentencing, which all judges do before going into court. Trying to get this information, process it, evaluate it and incorporate it into the sentencing on the fly, as it were, is not going to really work very well at all."
The Law Society said any changes to the system should be publicly consulted on through the usual select committee process.
President Frazer Barton said removing legal aid funding would have a more pronounced effect on Māori, who were overrepresented in the criminal justice system.
"We must be clear here - despite common sentiment, this is not an issue of certain ethnic groups receiving more favourable sentences, and it is not about simply reducing sentences. The provision of these reports is about equitable, effective, and tailored sentencing outcomes."
It could also impact on criminal defence lawyers, who were under a professional obligation to provide all relevant material to the court. Barton said some lawyers were already bearing the cost of specialist reports for their clients.
The Law Society agreed improvements could be made, Barton said, but more work and consultation were needed.
"Even where policy promises have been made during an election, we expect to see robust policy work supporting their development and the consideration of alternatives, alongside consideration of the wider implications of legislative change.
"There may be other means of addressing what appear to be largely financial concerns and concerns relating to the perceived impact of these reports on sentencing outcomes."
Meanwhile, People Against Prisons Aotearoa spokesperson Emmy Rākete said defunding the reports would result in "ill-informed and inappropriately long" prison sentences.
"There is no fiscal argument for ending cultural report funding - they pay for themselves by reducing state spending on incarceration. The government is attacking cultural reports for the sole purpose of locking up more working class and Māori people for longer."