TUTORIAL ONE: IMPRISONMENT

Week One: 13-17 March,

Week Two: 20-24 March

Objectives: At the end of tutorial 1 students should have a basic understanding of:

I. Some of the reasons contributing to the over incarceration of Māori;

II. The impact of incarceration on a defendant’s whānau.

In preparation for this tutorial, students should read:

Required reading:
(a) Liam Martin “Hyper-incarceration: Inequality and Imprisonment” in Elizabeth Stanley,
Trevor Bradley and Sarah Monod de Froideville (eds) The Aotearoa Handbook of
Criminology, Auckland University Press 2021, pp 250-259 (on Canvas Modules under
“Tutorials”).
(b) The extract from Campbell v R [2020] NZCA 356 (provided below).

Recommended extra reading: Sir Joe Williams, “Build a Bridge and Get Over It: The Role
of Colonial Dispossession in Contemporary Indigenous Offending and What We Should Do
About It” (2020) 18 NZPIL 3 (accessible at https://www.google.com/search?client=firefox-b-
d&q=Joe+Williams%2C+Build+a+bridge)

Tutorial One Task: Consider the following questions:

(1) Why might “hyper-incarceration” be a more useful concept for describing the development
of prisons in New Zealand than “mass imprisonment”? What are some of the important
features of “hyper-incarceration”? Is it possible to address hyper- incarceration through our
individualised sentencing process?

(2) Do you think that the fact that the defendant has dependent children should play a role in
their sentencing? How? Does it matter that New Zealand has ratified the UN Convention of
the Rights of the Child? This contains the following articles:

Article 3 1. In all actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration….

Article 9 1. States Parties shall ensure that a child shall not be separated from his or her
parents against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is
necessary for the best interests of the child. Such determination may be necessary in a
particular case such as one involving abuse or neglect of the child by the parents, or one
where the parents are living separately and a decision must be made as to the child’s place of
residence….

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Extract from Campbell v R [2020] NZCA 356

Discount for personal circumstances: effect of incarceration on

Defendant’s children
[40] Ms Campbell’s personal circumstances were addressed in the s 27 report, which
the Judge reviewed at some length, referring specifically to the difficult relationship that
Ms Campbell had with her husband and the impact that Ms Campbell’s incarceration
would have on her children. As to the latter, he acknowledged a letter written by one of
Ms Campbell’s children.34 As to the former, we have already referred to the Judge’s
view that whilst there was some truth in the proposition that the source of the offending
lay in Ms Campbell’s relationship with Mr Campbell he did not accept it was to the
degree asserted. The 12-month (18 per cent) discount was fixed without identifying how
it was made up; it was said simply to reflect Ms Campbell’s personal circumstances.35
[41] Ms Epati submitted, first, that the non-specific discount failed to adequately
address the effect of incarceration on Ms Campbell’s children. It is uncontroversial that
the effect imprisoning an offender’s children has on those children is a factor that may
be taken into account in considering the appellant’s personal circumstances. The weight
to be accorded that factor depends on the circumstances.36 The relevant circumstances
include the type of offending and the circumstances of the child or children.

[42] In this case we accept that there would be a significant impact on Ms Campbell’s
children as a result of her imprisonment. It is quite evident from the pre-sentence report
and from the s 27 report that Ms Campbell has been the primary caregiver for her
children, a devoted mother and a stable presence in her children’s lives. It is true that her
eldest child has children of his own and is, strictly, of an age that he should be
independent; sadly, it is also true that he has difficulties with addiction and his children
would, in the usual course, rely on Ms Campbell to some extent for stability in their lives.
Further, Ms Campbell’s imprisonment comes at a time when her children’s father will be
absent, serving at least the eight-year minimum period of imprisonment imposed on him.

[43] We accept that even though the children are not as young as those in other cases,
they are nevertheless at an age where parental presence is an important protective factor
and the loss of that a corresponding risk factor for these children. These children do have
substantial and positive whanau support from both their mother’s and father’s extended
families. They are in the day-to-day care of their paternal grandparents and have a close
relationship with their aunt and maternal grandmother. This is not a case where the
children will be left rudderless, without support and guidance. Nevertheless, teenagers
are at an especially vulnerable stage of life to lose a loving and stable parent.

[44] We note that practical considerations mean that the opportunities for Ms
Campbell’s children to visit her will be rare, if they occur at all. The distance from their
home in Gisborne to Auckland Women’s Prison and the cost of travel are likely to put
visits beyond reach. We also note that Ms Campbell is reluctant for

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her children to see her in the prison environment but do not accept the Crown’s
suggestion that it is simply Ms Campbell’s choice not to see her children.

[45] Overall, we accept that the impact on Ms Campbell’s children is an issue that
deserved specific recognition and, ideally, would have been the subject of an identifiable
discount rather than being included in the total discount allowed for personal
circumstances. Taking the children’s position into account, but set against the nature of
the offending and other sentencing considerations, a discount of five per cent would have
been warranted.