Cultural sentencing

The full UN Committee on the Elimination of Racial Discrimination report on New Zealand is not yet available. However the summary is here, posted by Peace Movement Aotearoa. Idiot Savant of No Right Turn has all the links here and here.

Some people have been getting in a flap about cultural sentencing. Bearing in mind that the Committee’s reasoning is not yet available, here’s the money quote from the summary, in respect of this matter at least.

22. The Committee regrets that the State party has not assessed the extent to which section 27 of the Sentencing Act 2002, providing for the courts to hear submissions relating to the offender’s community and cultural background, has been implemented and with what results.

The Committee encourages the State party to undertake such an assessment, and to include information in this regard in its next periodic report.


So the UN is not suggesting that an offender’s community and cultural background must be taken into account. It is only suggesting that we have a look at whether section 27 is being used, and with what results, if any. In other words, they are suggesting that we get informed.

And all that section 27 actually says is:

27 Offender may request court to hear person on personal, family, whanau, 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, whanau, 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, whanau, or community and the victim or victims of the offence:
(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:
(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

Quoted from the Public Access to Legislation Project.

I just don’t see any particular problem with this. It seems to be about taking account of the extent to which offenders have tried to make amends, and rehabilitation. It’s not about letting people get away with crimes by virtue of their culture.

It’s not so silly to be worried about people getting away with crimes by virtue of their culture. There’s been a worrying case in Italy recently; a Muslim girl was beaten up by her father and her brother, for being too Westernised. The offenders were initially found guilty of the crime, but their sentences were overturned on appeal, by the highest court in Italy, because they beat the girl out of concern for maintaining their culture / religion, not out of maliciousness. The case is detailed on a blog here, there is an Italian version here, and a French version here. (I couldn’t find an English newspaper version, but at last, School C Latin and School C French have come in handy.) I first found out about the case through one of Theodore Dalrymple’s little moans, posted on Arts and Letters Daily. Unlike Dalrymple, I don’t think the sky is falling. But I do think that this is a case where “cultural rights” have been allowed to trample all over simple, allegedly inalienable, human rights.

However this is not what section 27 is talking about. If you think that sentencing is all about retribution, then you won’t like section 27 at all. If however, you hope that at least part of the purpose of our justice system is rehabilitation, and helping offenders so that they will not offend again, then section 27 enables us to have a look at ways to do exactly that.

If section 27 doesn’t even work, then we should get rid of it. But we have no way of knowing. And that’s all that the UN Committee has asked us to do – take a simple look.

If you think sentencing is all about retribution, and you don’t give a damn about whether an offender can be rehabilitated, because frankly, you don’t care whether or not he or she reoffends, then you won’t even bother taking a look.

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