The impact of discretion in the justice sector

Speech – The Maori Party

In Question-time yesterday, the Minister of Police; when asked about the levels of reported crime in New Zealand, made an interesting admission, and I quote: “Frankly, focusing on someone’s race is not going to make it any better”. That’s an interesting …


The impact of discretion in the justice sector

GENERAL DEBATE
Te Ururoa Flavell, MP for Waiariki
Wednesday 5 October 2011; 3.10pm

In Question-time yesterday, the Minister of Police; when asked about the levels of reported crime in New Zealand, made an interesting admission, and I quote: “Frankly, focusing on someone’s race is not going to make it any better”.

That’s an interesting statement from the Minister because it immediately distances herself from the Government’s policy direction advanced by the Minister of Justice and the Minister of Maori Affairs – and given signoff by Cabinet.

I’m talking about the Drivers of Crime policy which is a whole of government approach to reducing offending and victimisation with a particular focus on Maori.

The Maori Party would love to pretend that ethnicity is not an issue in the justice sector, but anyone can look through the Government’s own reports to know that is simply not true. Take some of these for starters:

NZ Police and Ministry of Justice data tells us that Mäori were four to five times more likely to be apprehended, prosecuted and convicted than their non¬Mäori counterparts.

• The Department of Corrections report, ‘Over-¬representation of Mäori in the criminal justice system’ tells us that Mäori were also 7 ½ times more likely to be given a custodial sentence, and eleven times more likely to be remanded in custody awaiting trial

It is not as if the system itself has not realised it has a massive issue in what officials are calling the impact of discretion.

Mr Speaker, a Ministry of Justice report, Identifying and Responding to Bias in the Criminal Justice System, made two very key recommendations:

1. to develop responses that identify and seek to offset the negative impact of neutral laws, structures, processes and decision making criteria on particular ethnic-minority groups; (really that’s just a flash way of describing institutional racism)

2. to enhance cultural understanding and responsiveness within the justice sector and improving public accountability via monitoring and publishing data on rates of ethnic disparity.

Mr Speaker, the outcome of this apparent discretion is tragically seen in the collective impact upon whanau of Maori being imprisoned at a rate six times that of non-Maori.

For the purposes of assisting the Minister of Police to answer her own question – why focus on ethnicity – I want to take a moment to look at the pervasive role discretion plays in the New Zealand criminal justice system.

Opportunities for discretion to operate present themselves from the decision to report an incident as a “crime”, through prosecuting decisions on whether an incident should even end up in court, to the impact of jury discretion, right through to sentencing and the decision to grant parole.

Now while discretion may be good in theory, it is where there are anomalies that we have a problem.

Let me take the House through two cases in my electorate

Case one: ROTORUA

• A 17yr old is killed when he is hit by a jetski at Lake Okareka
• His two friends, both Maori; were found responsible for his death after one of their jetskis performed a manouvre which threw up water obstructing the other’s vision.
• The two Maori boys were charged with operating a ship in a manner likely to cause unnecessary danger to persons or property and pleaded guilty in March, 2011.
• They were sentenced in June and discharged with conviction even though the Judge admitted they had done everything possible to right the wrong done.
• During their court appearance, the young men were supported by their families, the family of the deceased and their school.
• Their school principal told the court the two boys were academic achievers who would do well in the future. Both lawyers for the defendants pleaded for the young men to be discharged without conviction.

Case two : TAURANGA

• A man is killed in the harbour after his Pakeha friend accidentally steers his boat into a beacon.
• The Pakeha man, like the two Maori boys is charged with operating a ship in a manner likely to cause unnecessary danger to persons or property and pleads guilty.
• The person was discharged without conviction after paying $3000 donation to the Tauranga coast guard and $500 court costs.
• The judge in this case said that the donation and having to accept responsibility for the tragedy carried a deterrent effect; and concluded : “You have paid a significant emotional price, both yourself and your family.”

From my perspective, both cases have paid a significant price, so what is the real lesson here? That money counts?

In every other aspect the cases are identical – apart from the ethnicity of the accused. Let’s investigate this before we dismiss it as not having any validity.

ENDS

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