Nicholas v The Queen

[2019] NZHC 3312

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-406-17

[2019] NZHC 3312

KANE NICHOLAS

v

THE QUEEN

Hearing (via AVL):

13 December 2019

Counsel:

R A Harrison for Appellant

J W Cameron for Respondent

Judgment:

13 December 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]                 Prior to the commencement this morning of the hearing of this appeal against sentence, Mr Harrison, for the appellant, sought an adjournment. He had previously sought an adjournment on the grounds that the sentencing Court did not have available before it a report under s 27 in relation to cultural matters.

[2]                 It appears that initially counsel who appeared in the Court below, who was not Mr Harrison, had made arrangements to obtain a report under s 27 but that the person from whom the report had been commissioned became unavailable at some point with the result that no report from that person was available to the Court.

NICHOLAS v R [2019] NZHC 3312 [13 December 2019]

[3]                 Counsel, then appearing for the appellant, addressed this issue by having the appellant prepare what was described as an affidavit. Although it was not sworn, it is a document that was signed by Mr Nicholas. It is part in typewriting and attached to it was a further section in what appears to be the handwriting of the appellant himself. That document was tendered by the then counsel for the appellant to the Court, as being a document which spoke to the issues which might otherwise have been covered in a s 27 report. There is no doubt that it does refer to a number of factors in the background of the appellant which are of a cultural nature and are the sorts of factors that the Courts in similar cases have had regard to.

Facts

[4]                 I would also note that before the Court, in relation to the sentencing of this matter, as well as the material provided by the appellant himself focussing particularly on cultural issues, the Court also had a Provision of Advice to Court report which addressed in a much less detailed way, some of these issues.

[5]                 However, the Court also, of particular relevance, had before it, an unusually extensive psychological report which set out in some detail the various background issues including the deprived childhood that the appellant had at least from the ages of one to seven when he resided with his father.

[6]                 The report also identified a significant improvement in the appellant’s behaviour when he returned to his mother’s custody. It appears, according to the mother, that this occurred at about the age of seven although the appellant’s recollection was that it was at the age of 10.

[7]                 The report itself also addressed issues relating to the appellant’s psychological wellbeing and the issues of the extent to which it could be said that he suffered from any particular psychological or psychiatric disorder. It ultimately concluded that there was insufficient evidence to diagnose the appellant with any mental disorder other than drug addiction which was said to be in remission and possible PTSD. It indicated that with time, in a controlled environment, devoid of substance abuse, a clearer picture might emerge as to whether any mental disorder was present.

[8]                 It is against that background that when the initial application for an adjournment was made and came before Simon France J, he said that it was not appropriate for the matter to be adjourned to get a s 27 report. He gave his reasons for that and they included that the Court already had significant relevant information and, that given the time that had passed since the sentencing in this matter, it was appropriate that the appeal be dealt with promptly.

[9]                 Mr Harrison renewed his application this morning. Yesterday he had filed a memorandum and attached to that memorandum was a letter dated 11 December 2019 from Māmari Stephens. Ms Stephens is well-known to the Court as being a senior and respected academic in the law faculty at the Victory University of Wellington, who has a particular expertise and knowledge in matters involving the interface of Māori and the legal system.

[10]             In the written and oral submissions that Mr Harrison made, he submitted that Ms Stephens had not had the opportunity to prepare a full report on the appellant and that on the basis of her observations, it was necessary that this appeal be adjourned in order for a report from her to be completed.

[11]             As to the report from Ms Stephens itself, much of it could be described as legal submissions involving as it does, an analysis of cases such as Solicitor-General v Heta,1 R v Carr & Anderson,2 and the Court of Appeal decision in Zhang v R.3

[12]             Ms Stephens identified as topics that might be relevantly addressed in a cultural report as being the apparent instability of the appellant’s role in his whānau from a cultural perspective, including the fragility of his connections to important family members, his inability to take up important whānau roles by virtue of his disconnection, and the experiences that led to his father’s disconnection in his Māori cultural roots, and therefore shaped the appellant’s own development.

1      Solicitor-General v Heta [2018] NZHC 2453.

2      R v Carr & Anderson [2019] NZHC 232.

3      Zhang v R [2019] NZCA 507.

[13]             It was also suggested that the impact of whakamā, the English translation of which is ‘shame’, upon the appellant’s development as a young child/man and adult, would also be potentially relevant.

[14]             The Court accepts, as I indicated to Mr Harrison during the course of his oral submissions, that systemic Māori deprivation, as a result of colonisation, can be taken into account in the context of aggravating mitigating factors that the Court can consider under the Sentencing Act.

[15]             I go further than that, and as I have also indicated to Mr Harrison, I accept that in this particular case, there is evidence that, particularly for the first seven years of his while the appellant was in the custody of his father, he undoubtedly experienced cultural and economic deprivation consistent with the sort of systemic deprivation that the Court is often referred to in s 27 reports of this case.

[16]             Mr Harrison submitted that acknowledgement by the Court of the existence of those factors was not sufficient to address this issue as he said the missing link was the causative connection between that deprivation and the actions which the appellant undertook or committed in relation to this particular offence. He submitted that it was in respect of this sort of issue that a report from Ms Stephens was essential.

Analysis

[17]             I would note that information relevant to cultural factors can come from a number of sources. It would not always be necessary for a report from a specialist such as Ms Stephens in these matters to be commissioned. Information provided by the appellant himself or members of his whānau who have a personal knowledge of him is, in the Court’s experience, often as valuable or even more valuable than a report from an expert who does not personally know the appellant, and whose particular expertise may be of a theoretical nature.

[18]             Equally, I would observe that information that is relevant to assessing issues of a cultural impact such as the effect of systemic Māori deprivation on a particular offender in relation to a particular offence, can come from professionals other than those who are seen as experts in Māori culture. Such professionals can include a

psychologist or a psychiatrist or even the writer of a Provision of Advice to Court report.

[19]             The basis of Mr Harrison’s submission was that, if the Court had the benefit of a report from Ms Stephens, then that would support his submission that the Judge’s discount of five per cent for mitigating factors in relation to the appellant, could be demonstrated to be inadequate.

[20]             Against those observations, Mr Cameron, for the Crown, indicated that the caselaw established that matters of a cultural nature which might be covered by a formal s 27 report, would be of modest effect when the offending is serious, and in this case the offending was particularly serious.

[21]             Mr Cameron also noted that although there was evidence of systemic disadvantage in the appellant’s early childhood, he went on to overcome that, both educationally and vocationally to the extent that he achieved work success and relationship success, beyond that often are seen in Māori as the consequence of the systemic disadvantage caused by colonisation.

[22]             He also submitted that in terms of the issue of causation as to this particular crime, the most helpful information was that of the psychologist which was available before the Court.

[23]Turning now to analysis of the competing arguments.

[24]             As indicated, I accept that the issue of systemic Māori deprivation can be taken into account and is a potentially relevant factor in a case like this. However, I also accept that the caselaw is such that when there is criminal offending as serious as this, its overall effect on sentencing is likely to be modest. What I have to do is to weigh up whether or not there is, given the extensive relevant material that was available to the sentencing  Judge,  a  sufficient  prospect  that  if  a  report  is  obtained  from  Ms Stephens, that may influence this appeal, or would have influenced the outcome at the hearing in the District Court.

[25]             I note that when it became apparent to counsel appearing in the District Court that a s 27 report would not be available, there was no request for an adjournment to obtain a new report. Mr Harrison has submitted that there is a real difficulty in terms of timing in obtaining such reports indicating that the report writers available in Blenheim also service the Wellington area and that there was always a significant demand for their services.

Outcome

[26]             Having considered the information placed before me and the submissions of counsel, I have come to the conclusion that this is a case where a formal report from Ms Stephens is unnecessary to establish the purpose for which such reports are normally obtained. It is clear that the childhood and formational experiences of the appellant were reflective of the worst aspects of cultural deprivation. However, that information was fully before the Court, and considered by the Court, and is reflected in the five per cent discount accorded for mitigating factors.

[27]             When measured against the detailed information in the psychological report, I conclude that in terms of explaining what the motivation behind the appellant for this offence was, that is likely to provide more focused and helpful information than a specialist report obtained from Ms Stephens. That is not in any way to undervalue her expertise or the fact that those reports can often be of great assistance to the Court. It is to face the reality that such reports are not the only source of relevant cultural information and to acknowledge that, in this case, the Judge did have before him, and had regard to, the sorts of matters that would be covered.

[28]             It is also reflective of the fact that I accept, without it having to be established to me by way of such a report, that the issue of the appellant’s cultural background is a relevant matter and the Court was entitled to have regard to it in assessing his overall culpability and which I am entitled to have regard to in relation to this appeal.

[29]             On that basis, I am not prepared to grant the adjournment sought, and this matter will now proceed for hearing.

Churchman J

Solicitors:
Crown Solicitor, Nelson

cc:        Inangahua Chambers, Blenheim for Appellant