An average of 62,000 adults in New Zealand are convicted of a criminal offence each year. Around 7,500 receive a prison sentence. The vast majority of those sent to prison have mental health issues, substance abuse issues, learning disabilities, traumatic brain injuries or other neuro-disabilities.
This means judges need to be well informed about the defendants appearing before them. So says chief district court judge, Heemi Taumaunu.
In 2020, Taumaunu persuaded the Labour government to roll out a programme called Te Ao Mārama to all 58 district courts in the country. The plan, described in this guiding document, promises ‘enhanced justice for all’. It lists eight strategies designed to improve the administration of justice, one of which is to “Improve the quality of information judicial officers receive to inform their decisions.”
What information is available?
In the main, judges receive four kinds of reports which provide different kinds of information on defendants:
- pre-sentence reports (PSRs) written by probation officers;
- mental health assessments written by psychologists or psychiatrists;
- alcohol and drug assessments written by qualified AOD clinicians; and
- cultural reports (for which no particular qualification is required).
In 2022, I conducted research on the availability of these reports for my Criminology honours degree. The topic was:
I interviewed six judges. Here is a brief summary of the results.
Presentence reports
Judges receive about 30,000 PSRs every year. They seldom contain much information. One judge said: “the PSR report is the least helpful piece of information that a judge has for sentencing purposes.” Another said: “there’s very little that’s of any use in cultural, behavioural, or causative factors in the probation report. Mostly you could do without probation reports – bit of a waste of taxpayers’ money, to be honest”.
Mental health reports
Mental health reports are generally ordered on the few defendants who may be unfit to stand trial, under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act (CPMIP), 2003. Judges order section 38 reports on approximately 750 people a year, but expressed concerns that mental health directors are “constantly in touch with us saying that judges are ordering too many reports. They cannot meet the demand.”
The few mental health reports that judges receive helps them decide if those particular defendants are insane or not, but these reports don’t address the underlying issues that the vast majority of defendants present with. Only cultural reports and alcohol and drug assessments provide the in-depth background information that judges require.
Alcohol & drug assessments
In 2009, the Law Commission said up to 80% of defendants who appear in court have issues with substance use. The Corrections Department says 50% of crime is committed by people under the influence of drugs or alcohol. This suggests that judges should receive alcohol and drug assessments on at least half of the 60,000 defendants appearing in court each year.
However, up till now, funding for comprehensive alcohol and drug assessments has only been available in three locations in New Zealand: Auckland, Wellington and Nelson. In Auckland and Nelson, they’re funded by the Ministry of health. In Wellington they’re funded by the Ministry of Justice. In 2021, this allowed AOD assessments to be conducted on about 1,000 defendants in these three cities.
However, the Nelson funding is coming to an end. That leaves Auckland and Wellington as the only two cities in the country where a funding mechanism is in place to provide AOD assessments. The only way judges can access AOD reports in the other 56 district courts around the country is if lawyers request them on legal aid. In 2021, only 176 assessments were funded in this way.
Cultural reports
Lawyers have been much keener on requesting cultural reports. According to Justice Minister, Paul Goldsmith, 2,500 cultural reports were prepared for judges in 2023 paid for by legal aid – at a cost of $7.5 million. In March 2024, the coalition government followed through on its commitment to abolish the funding.
Most commentators described this as a retrograde step. Social justice advocate, Emily Rakete, says: “There is no fiscal argument for ending cultural report funding – they pay for themselves by reducing state spending on incarceration.”
The Law Society is concerned that access to justice will be impacted by abolishing the funding – with the greatest impact on Maori who are vastly over-represented in the justice system. Criminologist, Dr Juan Tauri, says it’s not just Maori who benefit from cultural reports; they help the working class and anyone who is poor which includes Pākehā, as well as Māori and Pasifika.
Retired district court judge David Harvey points out that judges also have an obligation under the principles of the Sentencing Act to consider relevant background factors, so they will have to try and obtain this information from other sources. However, Associate Law Professor, Khylee Quince, claims these reports “provide essential information to judges that they cannot get from other sources.”
Unfortunately, she’s right. Judges already receive pathetically few mental health or AOD reports. Now the coalition government has just shot down the Chief Justice’s brand new plan for judges to be well-informed about the defendants appearing before them. Talk about blind justice…
BROOKINGBLOG 
The question to ask is how many of the current government ministers have shares in private prison contractors
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Lets hope the answer to that is none.
From my perspective the problem is that 80% of crime is alcohol and drug related, but successive government have never made sufficient AOD treatment available to defendants. Only about 5% of those appearing in court are screened or assessed for problems with substance abuse. So they keep on using and keep on offending.
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