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1210 Matariki Court - 16 October 2012

Te Kooti o Matariki

 

 

What is the Matariki Court?

 

In 2010 the late Chief District Court Judge Russell Johnson took steps to initiate a specialist court in Kaikohe with an aim of increasing the use of section 27 of the sentencing Act 2002 to allow the whānau, hapū and iwi of an offender to address the court at sentencing and to provide “wrap around” services including the programmes and services similar to that offered by programme providers.  Assurances were given by both Judge Johnson CDJ and Judge Rota that this initiative was not a pilot project but an approach which would engage an offender’s whānau, hapū and iwi in the sentencing process.

 

The core needs or problems that this initiative aims to address are:

·       the over-representation of Māori in the criminal justice system, in particular in prisons;

·       a potential adverse view of the justice system for Māori;

·       that justice system processes are not necessarily designed from the Māori perspective;

·       the limited use of legislation that supports the involvement of whānau, hapū, and iwi in the court process; and

·       the limited use of te reo Māori at court.

 

The agreed purpose of the initiative is to:

·       increase the involvement of whānau, hapū, and iwi in the court process;

·       encourage the inclusion of tikanga Māori by actively promoting the use of legislation that supports this in the District Court, such as section 27 of the Sentencing Act 2002 and section 4 of the Māori Language Act 1987 (right to speak te reo Māori in legal proceedings); and

·       facilitate offender access to wrap around services and alternative pathways to address the underlying causes of their offending via section 25 of the Sentencing Act 2002

 

Why Kaikohe – In the Kaikohe area there is an overrepresentation of Māori at every stage in the New Zealand criminal justice system and information shows that the sentences imposed on Māori are often of a higher tariff than non-Māori.  This may be influenced by many factors including the way charges are laid by the prosecuting authority, legal representation, information from pre-sentence reports and other pre-sentence assessments.  Other factors influencing sentences imposed may also include the offender’s criminal history (Māori often offend at younger ages and have longer criminal histories then non-Māori) and offence type.

 

 

Some stats to help put this into perspective. 

 

This information is for the Kaikohe District Court in 2008

                                                           Māori                                  Non-Māori

Usual resident population 2006 – 12,531       35.3%,                  22,992       64.7%

 

Prosecutions                               4,422          70.0%                        609       30.0%

Convictions                                  1,165          71.0%                        477       29.0%

Imprisonment 0-2 years                  112          83.0%                          23       17.0%

Home detention                                 35          71.4%                          14       28.6%

Community detention                        34          85.0%                            6       15.0%

Intensive supervision                       14          82.4%                            3       17.6%

Other community sentences          517          74.9%                        173       25.1%   

 


 

Judge Rota spent many months talking to the local iwi groups about the Matariki court.  Through this work Ngāpuhi engaged in the project at an early stage.  This led to the development of a programme for working with offenders and supporting families to attend and speak at the sentencing hearing.  The name of this organisation is Te Mana o Ngāpuhi Kowhao Rau (also known as TMONK), they are headed up by Ngahau Davis, Whare Irene Hancey and Daniel Miller.  Though the court works closely with TMONK, they are independent of the MoJ.  They design an intensive programme that is individually developed to help each offender address the underlying causes of their offending behaviour and to support them, their whānau, hapū and iwi.  Most of this work is completed prior to sentence and includes a restorative justice component, if there is a victim and they choose to engage in this process.  TMONK have a belief that it takes a whole community to address offender behaviour and work towards bringing whānau back to the marae.  Most of this work is completed outside of the court, with interim reports filed to keep the court and judge informed of progress.

 

 

We decided that there would be 4 option types to reflect the different levels of involvement the defendant may choose.  Starting with option 1, being no involvement (sentenced in usual way) to option 4, which is very intensive and requires the buy in of both the defendant and their whānau.  The work is completed prior to sentence.

 

 

More detail on the 4 options.

 

Option 1 – the defendant declines a section 27 hearing then the sentencing process would proceed in the usual way.

 

Option 2 – the defendant chooses a section 27 hearing, they may have a member of their whānau to speak on their behalf.  If the speaker is there then the sentencing is likely to go ahead on that day, alternatively counsel may ask for an adjournment so that the support person can attend.  There are no referrals, however the defendant may offer restorative justice if the victim is willing.

 

Option 3 – the defendant chooses a section 27 hearing.  An initial assessment is made by the court Kairuruku (co-ordinator), who talks to the defendant about what section 27 offers as well as what community services and other agencies are available to help or support the defendant.  The Kairuruku then connects the defendant with these services as required, which could include restorative justice.  Either the Kairuruku or defence counsel will then stand up and suggest to the Judge that option 3 is the pathway for that particular offender.  The sentencing is then adjourned to give the defendant time to complete any programmes that may be deemed to be helpful.

 

Option 4 – the defendant chooses a section 27 hearing.  This is a much more intensive option and requires a commitment from both the defendant and their whānau.  This is where TMONK get involve.  They are very clear with the defendant that this opportunity is not a “get out of jail free card” and that they will commit to the process as long as the defendant and their whānau commit to the work.  This then involves the sentencing being adjourned to an interim date.  This is to give TMONK time to start working with the defendant and their whānau and to complete a report which includes a plan that will help the defendant to address any underlying courses to their offending.  If this report and plan is accepted by the Judge then the sentencing is adjourned again so that the plan can be completed.  An important part of this process is that the work is completed before the sentencing, this gives the defendant the opportunity to prove their commitment, to the victim, their whānau and the court.

 

 

 

 

 


 

 

To date 15 defendants have either been through or currently going through the Matariki Court process.  As the Kairuruku has been getting the message out to the public the number of defendants enquiring about the Matariki Court, and in particular options 3 and 4 is increasing.

 

Number completed                           4  

Number actively in option 4              4

Number actively in option 3              2

Number not suitable                         2

Number still to be assessed            3

 

 

Offender, victim and whānau

 

The offenders need to be aware of the options available to them when being sentenced at the Kaikohe District Court.

 

The Matariki Court initiative is an offender focussed initiative; therefore it is essential to consider the needs of victims within that context.  When people enter the criminal justice system as victims they bring their own cultural back ground, experience of, and response to, the offence committed and experiences of the justice environment and processes.  It is essential that the organisations and agencies that work in the justice sector have a shared understanding of how victims of crime should receive services and that all agencies should understand how they each impact on the victim’s overall experience.

 

The needs of whānau are similar to those of victims and victimisation trend suggest there will be cases where victims are whānau.  They are affected by the offender’s behaviour and have a vested interest in the outcome of court proceedings.

 

He aha te mea nui he tangata he tangata he tangata.

No reira tenei te kaupapa nui mo nga whanaunga

Ka uru mai ki te kooti o Kaikohe. nga mihi kia koutou

Hapaitia tono tenei korero mo o matou mokopuna.

Ma te ariki te huarahi tika mo te whanau katoa.

 

 


The role of the court Kairuruku (co-ordinator)

 

The court Kairuruku is an important role in ensuring the smooth running of the Matariki Court.  This role is at a CRO level and is currently on a fix term until February 2013.  Fred Hohua has been appointed to this position and brings with him a number of skills that ensure he performs this role at a high level including speaking te reo Māori fluently and knowing who to contact to continue building on the net works he already has.

Many offenders require practical support to access services they need (eg, mental health, work and income, training and employment, housing, transport, driver’s licence).  The Kairuruku is developing relationships with local agencies and iwi to ensure offenders gain access to a range of support and services.  This involves many organisations, government and non-government, working together.

A key role for the Kairuruku is to get the message out to the community about what the Matariki Court is and how he can support them.  He is doing this by attending takiwāi meetings, he attends local interagency meetings as well as a number of others, Fred proactively goes out into the community and talks to anyone who may have an interest.

The Kairuruku is responsible for case managing these sentencing files and ensure that all reports are requested and filed on time.  The main reports are the usual PSR, a report filed by TMONK updating progress, Restorative Justice (if hearing held) and any sentencing submissions as required.  He ensures that all this information is on the Judges file and communicates with the Judge as to how/when they want to receive the file.  He keeps the Judge informed about the progress of the plan, how many and who the potential speakers are, if there is an application to speak te reo Māori.  He supports the Judiciary if they have any questions about the process, especially the Judges that have less to do with these sentencings. 

Part of the role of the Kairuruku is to communicate with the victim adviser so they are aware of the progress of the file and helps them with any information they may need so that the victim is kept informed.  He then ensures that if the victim chooses to attend that they feel safe and understand the process.

The Kairuruku manages the manual recording of data in an excel database, as much of the key information is not able to be recorded in CMS.

Fred spends many hours getting the message out to the defendants and victims that the Matariki Court is available and what services he provides.  This includes making himself available to the public particularly on list court days.  He ensures that there are pamphlets available in the public space and has distributed them to a number of local community groups.  He makes himself available to support the judiciary when there is a Matariki matter to be called in court. 

 

This is a specialists role and one that will become more important as the number of defendants that take up the opportunity of options 3 and 4 increases.

 

How is a Matariki sentencing different?

 

These sentencing’s are set down at the end of a sentencing day, this is to give the Judge time to deal with the other sentencing matters as Matariki sentencings take up to 2 hours.

 

There are a higher number of support people for the defendant and the victim (if they choose to attend).

 

An opening karakia is done in the court room, followed by a mihimihi.  After that the more formal sentencing process takes place.  Then the matariki process starts with the offender getting up to speak, followed by whānau and TMONK, then the victim can speak if they choose.  The Judge then passes sentence.  After that a closing karakia is done (either in the Judges presence or absence).

 


 

How will we know we are successful?

 

ü       The court facilitates the needs of the programme and ensures a streamline end to end process.

ü       Section 27 sentencings are used regularly.

ü       Offenders engage in and complete the Ngāpuhi programme (TMONK).

ü       Government and non-government agencies work together in a productive way.

ü       Reduced reoffending from the defendants that participate in the process, especially in      options 3 and 4.

ü       There is minimal impact on jury trial and summary  court waiting times, age of          cases and cases on hand.

 

 

 

Appendices

 

 

Appendix One        -   Sections 25 of the Sentencing Act 2002

Appendix Two       -   Section 27 of the Sentencing Act 2002

 

 


Appendix One

 

Section 25 – Sentencing Act 2002

Power of adjournment for inquiries as to suitable punishment

(1)  A court may adjourn the proceedings in respect of any offence after the offender has been found guilty or has pleaded guilty and before the offender has been sentenced or otherwise dealt with for any 1 or more of the following purposes:

a)  to enable inquiries to be made or to determine the most suitable method of dealing with the case:

b)  to enable a restorative justice process to occur:

c)  to enable a restorative justice agreement to be fulfilled:

d)  to enable a rehabilitation programme or course of action to be undertaken:

da)to determine whether to impose an instrument forfeiture order and, if so, the        terms of that order:

 e) to enable the court to take account of the offender's response to any process, agreement, programme, or course of action referred to in paragraph (b), (c), or (d)”.

(2)  If proceedings are adjourned under this section or under section 10(4), a Judge or Justice or Community Magistrate having jurisdiction to deal with offences of the same kind (whether or not the same Judge or Justice or Community Magistrate before whom the case was heard) may, after inquiry into the circumstances of the case, sentence or otherwise deal with the offender for the offence to which the adjournment relates.

 


Appendix One

 

Section 27 – Sentencing Act 2002

Offender may request court to hear person on personal, family, whānau, community, and cultural background of offender

(1)  If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

a)    the personal, family, whānau, community, and cultural background of the offender:

b)    the way in which that background may have related to the commission of the offence:

c)    any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whānau, or community and the victim or victims of the offence:

d)    how support from the family, whānau, or community may be available to help prevent further offending by the offender:

e)    how the offender's background, or family, whānau, or community support may be relevant in respect of possible sentences.

(2)  The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.

(3)  If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

(4)  Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.

(5)  If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1)