How much should courts discount for Maori?
Lawyer James Rapley, representing Fabian Mika, has certainly stirred up a hornet's nest in arguing that Maori offenders are entitled to an automatic consideration of the history of the Maori people when sentenced.
The Mika argument appears to be as follows:
- Sentencing is largely governed by the Sentencing Act. The relevant section says the court must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence.
- The court must recognise Mika's Maori (cultural) background.
- The cultural background section of the Sentencing Act is partly designed to address the overrepresentation of Maori in the prison population (about 51 per cent).
- In Canada, under different legislation, the courts take account of the fact an offender is from an indigenous background.
- Maori should have a special status to recognise them as victims of colonialism, displacement, high unemployment, lower educational attainment and a higher level of incarceration.
- Maori are not entitled to an automatic reduction in penalty, but the court must take their Maori background into account in a meaningful way.
- Maori do not need to show a link between their cultural background and the offending. The devastating effects of the historic and systemic discrimination and deprivation of Maori and its intergenerational effects on Maori should be a given.
It looks very much like an argument ahead of its time.
Although it's a carefully nuanced train of thought, the argument will no doubt be treated as advocating a penalty discount just for being Maori.
The courts will be loath to extend sentencing considerations without specific direction from Parliament so the battle to have the argument adopted by the courts will be an uphill one.
The point that Maori, as an indigenous stone-age people coming into contact with pre-industrial Europeans, would suffer the consequences for centuries to come, is pretty well accepted.
The decimation of Maori wealth, health and prospects caused by the collision with European civilisation is, by any standard, deplorable.
This has been recognised, relatively recently perhaps, by programmes and policies designed to address the ingrained disadvantage caused by the clash of cultures.
Sentencing of Maori offenders has moved towards hopefully more effective Maori initiated rehabilitation programmes.
If the Mika argument was put into practice, sentencing judges would have to start with a consideration of the offender's ethnicity, a fairly tangled question in itself.
If Maori, the judge would then have to consider how generations of deprivation or dysfunction have shaped this individual.
Of course it will have had some effect, as it has for most people, but deciding how much will be very difficult.
It would be interesting to see how the Canadian courts have managed it and whether it has actually made any difference to the sentences handed out and the rate of recidivism.
Since the only point in answering the question is what the discount should be, then it could become a fruitless exercise.
If the court makes allowances for being Maori, then red heads or left handers or gays might also have a valid case for special treatment.
Many will criticise such allowances as damaging the important principle of everyone being equal before the law.
It offends our concept of individual responsibility. Everyone, it is said, is born with a clean slate and is the author of their own fortunes.
The trouble with this argument is people are inherently unequal in their personalities, temperaments and abilities. Upbringings are also very different. Does this mean people have different levels of culpability and how are sentencing judges to take all this into account?
The justice system has to accommodate changing ways of looking at criminality but many would argue the sentencing process is not the place to start making fine calls based purely on whether is someone is Maori or not.