Auckland, August 5, 2023
What is culture? How do you define it? What does it do?
It is a helpful lens for analysing and describing the functions of a community. In policy, cultural consideration can improve acceptance and implementation in different communities.
But can it account for all the decisions made by any individual?
Under the Sentencing Act 2002, culture is one of the grounds upon which an offender can appeal for leniency at sentencing. This background is set out in so-called cultural reports.
With the recent debates about some high-profile crimes and lenient sentences, these reports are being questioned.
The ongoing debate
The debate is ongoing.
Master in Social Sciences Denis O’Reilly is a lifetime Black Power member and the author of many such reports (highly praised by the courts). He believes that these documents correct the “entrenched asymmetry” in justice outcomes for Māori.
The reports do not excuse offending, says O’Reilly, but they help explain it.
The Corrections Association takes a dimmer view, with President Floyd Du Plessis describing them as “not very well regulated,” “free-thinking,” and lacking in “fact and basis.”
“Doing a report on someone’s background makes sense,” notes Du Plessis, “but giving an automatic discount because of that has no bearing.”
And there is the rub. Cultural reports are merely one aspect of a justice system in which incarceration has fallen from favour. Home detention has increasingly been deployed as an alternative to prison despite some saying there’s no evidence it reduces recidivism rates.
And when repeat offenders commit violent crimes while on home detention, sentencing judges come in for criticism… criticism that the Auckland Bar Association has labelled as “dangerous” when incorrect.
Really? As “dangerous” as the criminals?
The societal consequences
This argument is about consequences, not solely on a judicial level, but also societal.
In fact, this is not a cultural issue at all. Every cultural group has taboos and some means of enforcing them. Historically for Māori, tapu controlled how people behaved towards each other. Breaking tapu typically produced consequences. Without consequences, societies flounder.
So when you cannot criticise a judge’s decision… or when grades are artificially inflated (which some insist occurred under National in the middle of the last decade)… or a Cabinet Minister is asked 12 times to sell his airport shares but doesn’t; it’s clear that consequences are—at best—being side-lined, or worse, avoided.
That is a problem because feedback is the only way that we can know what we’re doing is wrong… or right.
Physics holds that every action has an equal and opposite reaction; human relations are the same. In a pluralistic society, the challenge lies in ensuring acceptable standards of behaviour.
Fortunately, deterrence and prevention are shared objectives no matter what the culture.
Let us reclaim these principles now… at all levels.
Tim Wilson is Executive Director of the Auckland-based Maxim Institute, an independent think tank working to promote the dignity of every person in New Zealand by standing for freedom, justice, compassion, and hope.