CRIM 489 Research Paper for Criminology Honours

Court reports: How useful are pre-sentence reports (PSRs), alcohol and drug
(AOD) assessments, mental health reports and cultural reports to judges in the
sentencing process; to what extent do they lead to meaningful treatment and
rehabilitation?

Student: Roger Brooking

Year: 2022
Supervisor: Dr Russil Durrant

Word count: 10,537

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 Contents

Page
List of figures 3
Abstract 4
Introduction 5
Literature review – the background 7
Presentence reports – origins 8
Presentence reports - literature review 9
Alcohol & Other Drug (AOD) Assessments: current practice and literature review 10
Mental health reports: current practice and literature review 14
Cultural reports: current practice and literature review 16
Research questions 18
Method 18
Findings 20
Presentence reports (PACs) 21
Alcohol and drug assessments 21
Mental health reports 22
Cultural reports 23

Themes and discussion 24

Conclusion 28

References 30

Appendix A: Information sheet for judges and list of interview questions 35

Appendix B: Consent form for judges to sign 38

Appendix C: List of OIA responses 39

Appendix D: List of codes 41

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 List of Figures

Figure 1: Annual number of convictions in New Zealand between 2015 and 2019 (NZ Stats),
giving a five-year average.

Figure 2: Standard tick box used by Probation Officers for offending related factors in the
PAC Writing Guide

Figure 3: Total number of referrals for AOD Assessments ordered by judges in Wellington
area courts in 2021

Figure 4: Total number of AOD assessments requested by lawyers (in the entire country) & funded
by legal aid in 2021.

Figure 5: Comprehensive AOD assessments provided to court prior to sentencing

Figure 6. Comparison of the number of each kind of report received by judges prior to
Sentencing.

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 Abstract

The vast majority of defendants appearing in court have problems with substance abuse, mental health,
brain injuries or other neuro-disabilities which contribute to their offending. At sentencing, judges have
two main responsibilities: to protect the community and deter further offending; and to mandate
offenders into rehabilitation. Judges, therefore, need to be well-informed about the defendant’s
background and the circumstances which contribute to their offending. In New Zealand, this
information mostly comes from presentence reports, alcohol and drug assessments, mental health
reports and cultural reports. Six judges were interviewed to ascertain their views on the quality of the
information in these reports, and their availability when considering a rehabilitative sentence. Although
the courts receive far more presentence reports written by Probation Officers than any other kind,
judges often described them as being of limited value. Nevertheless, they are mandated by law and
must be provided. An expectation that cultural reports should be provided on defendants has also
developed in the last couple of years. However, judges were concerned that far too few defendants are
being screened for underlying substance abuse or mental health issues; at the same time, procedures
for providing AOD assessments and mental health reports are unstructured or face serious limitations in
availability. A new policy, Te Ao Marama, is being introduced to make all district courts ‘solution-
focussed’, with the intention to usher in transformative justice. It is suggested that for justice to be
transformed, the structural procedures, plus the quality, quantity and reliability of information that
judges receive also needs to be transformed.

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 Introduction

Between 2015 and 2019, an average of 62,000 adults in New Zealand were convicted of a criminal
offence each year (see Fig 1). Around 12% received a prison sentence. The vast majority of those sent
to prison have mental health issues, substance abuse issues, learning disabilities, traumatic brain injury
(TBI) or other neuro-disabilities (Lambie, 2020).

Figure 1: Annual number of convictions (NZ Stats)

Total Prison Prison % Community Supervision

convictions sentence of total detention & other
2015 63,683 7,612 11.9% 27,038 29,033
2016 64,568 8,560 13.3% 27,213 28,795
2017 64,364 8,693 13.5% 27,336 28,335
2018 60,628 7,627 12.5% 25,830 27,171
2019 56,971 6,850 12.0 24,802 25,319
Five-year average 62,042 7,868 12.6% 26,443 27,731

When these offenders appear in court, judges appear to have two main responsibilities - to protect the
community and deter further offending, and to persuade or mandate offenders into treatment or
rehabilitation to reduce their risk of reoffending. 1 In order to perform these roles, judges need to be
well-informed about the offender’s background, and the circumstances which contribute to their
criminal behaviour.

Judges are informed by a variety of assessments and specialist reports. They receive four main types:
presentence reports written by probation officers; comprehensive alcohol and drug assessments
conducted by qualified AOD clinicians; mental health reports done by psychologists or psychiatrists; and
cultural reports which describe systemic deprivation in the defendant’s background which contribute to
their offending.

When a community-based sentence is under consideration, judges always obtain a presentence report,
known as Provision of Advice to Court (PACs). They receive substantially more of these than any other

1
See Section 7 of the Sentencing Act 2002 for a full list of sentencing purposes.

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kind. PACs contain a sentence recommendation, comments on the suitability of whatever
accommodation is being proposed, and limited background information about the defendant. Given the
limited background information in PACs, it is doubtful that judges find them particularly helpful.

Comprehensive alcohol and drug assessments usually provide substantially more detail about the
defendant’s background and describe how this contributes to problems with substance abuse. However,
these are only available in a limited number of districts. Judges can also order mental health
assessments, although the majority of these are requested to determine whether defendants are fit to
stand trial, rather than to assist in their rehabilitation. In the last couple of years, judges have also been
provided with a growing number of cultural reports. These are procured by defence lawyers, usually
hoping to obtain a discount off their client’s sentence. However, the reality is that the total number of
cultural reports, AOD assessments, and mental health assessments made available to judges each year is
tiny compared with the thousands of PACs they receive. It is therefore equally unclear how much help
these reports provide to judges wanting to assist defendants into rehabilitation.

A number of studies exist which address various issues associated with each kind of report – but none of
these focus on rehabilitative issues, and judges are rarely consulted about this. No comparative studies
have been conducted in which judges have been asked about the utility of all four types of reports, or
what kind of information they need more or less of.

Using the Official Information Act, I investigate how many reports, of each type, that judges receive in a
given year. I then interviewed six district court judges to ascertain their perceptions about the quantity
and quality of these reports; which ones provide the most useful information; and what obstacles stand
in the way of mandating offenders into programmes even when judges have the information they need.

This research is particularly relevant at the current point in New Zealand’s judicial history. Chief district
court judge, Heemi Taumaunu, recently released a policy document, Te Ao Marama (2020), in which he
describes the need for a ‘transformative’ approach to justice in New Zealand, and outlines a plan to
make all 63 district courts in the country ‘solution focused’. Taumaunu explains: “We hope this occurs
in an environment where more well-informed decisions can be consistently made, based on better
information (emphasis added), with better informed participants, and better understood processes”
(p.6). This aspiration will only be achieved if judges are receiving sufficient, high quality reports of the
right type on the defendants appearing before them. At the moment, this does not appear to be case.

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 Literature review – the background

Of the 60,000 people convicted in court each year, the majority receive a community-based sentence.
Estimates vary but the Law Commission (2009) says up to 80% of those appearing in court have issues
with substance use (p.245). Of those who end up in prison, 87% meet criteria for a substance use
disorder (Bowman, 2016). Many prisoners also have intellectual or neuro-developmental disabilities
(such as attention deficit hyperactivity or fetal alcohol syndrome), communication disorders (such as
hearing loss), or learning disorders (such as dyslexia) [Lambie, 2020]. Indig, Gear & Wilhelm (2016)
found that 91% of prisoners have had a diagnosis of ‘any mental disorder’. Nearly 64% of male prisoners
in New Zealand and up to 95% of female prisoners have had a traumatic brain injury (TBI) [Mitchell,
Theadom & Du Preez, 2017]. A significant proportion have incurred multiple head injuries.

These issues are all associated with an increased risk of criminal offending (Lambie, 2020). Individuals
with serious mental illness are more than twice as likely to be arrested for a variety of offences
compared with the general population (Cuellare, et al, 2007, as cited in Durant, 2013). When individuals
with mental health disorders also abuse alcohol and drugs, this increases the risk of violent offending in
particular. Individuals with multiple head injuries also tend to have more convictions involving violence
(McKinley et al, 2014). If brain injury occurs in childhood, this nearly doubles the risk of a conviction
later in life (Kennedy, Heron & Munafo, 2017; Schofield, et al, 2015). When TBI leads to hospitalisation,
this triples the risk for violent offending (Fazel, et al, 2001).

Due to mental health issues, intellectual disabilities and addictions, many individuals lack the insight or
the motivation to seek help. An appearance in court may provide the first of many opportunities for
judges to intervene with a potentially ‘unmotivated’ individual, and find out what issues are driving their
offending (Lunt, 2017). Judicial intervention is authorized by section 7(1)(h) of the Sentencing Act, 2002
which enables judges to “assist in the offender’s rehabilitation and reintegration”, while section 25(d)
allows the court to “adjourn proceedings… to enable a rehabilitation program or course of action to be
undertaken”. Section 25(e) “enables the court to take account of the offender’s response” to any
programme or intervention that the judge has ordered.

The question is: how are judges to know what deficits or disorders a particular defendant has, or what
kind of intervention or rehabilitation is required? As described in the introduction, judges are informed
by a variety of assessments and reports, each of which provides information of a different kind. My
focus is primarily on the adequacy of information provided in presentence reports and the availability of

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alcohol and drug assessments. However, I also examine the limited use of mental health reports and the
growing use of cultural reports to provide additional context.

Judges also receive a small number of communication assistance reports and restorative justice reports
which they indicated in my research that they find very useful. Due to the limited nature of this inquiry, I
have been unable to include an evaluation of these in my analysis.

Presentence reports – origins

Presentence reports are mandated by Section 26(1) of the Sentencing Act (2002). This states that if an
offender is “charged with an offence punishable by imprisonment, the court may direct a probation
officer to prepare a report for the court.” Section 26A(1) states that “if the court is considering a
sentence of community detention or home detention, the court must direct a probation officer to
prepare a presentence report”. In 2019, before the Covid-19 pandemic, Corrections provided 27,067
PAC reports to the courts throughout New Zealand (OIA Response, 21 June 2022).

The legislation advising probation officers what information to include about the defendant is quite
vague. Section 26(2)(a) states that a PAC “may include information regarding the personal, family,
whanau, community, and cultural background and social circumstances of the offender”. Section 26(2)
(b) says the report “may include information regarding the factors contributing to the offence, and the
rehabilitative needs of the offender”. The word ‘may’ in both sections suggests the inclusion of such
information is entirely optional.

The Corrections Department has translated these requirements into a PAC Writing Guide (OIA response,
23 February 2022), which states that probation officers should identify a defendant’s risk factors for
reoffending, and what kind of rehabilitation programs are available to address those risks. The Guide
indicates that a PAC is also required to contain a sentence recommendation for the judge and comments
on the suitability of accommodation and electronic monitoring.

Corrections’ theoretical approach to identifying risk factors stems from the Risk, Needs, Responsivity
(RNR) model developed by Andrews & Bonta (1994). The Risk principle is that “criminal behaviour can
be predicted and treatment services should be matched to the level of risk of the offender.” The Needs
principle is that “treatment should target needs that have direct relevance to reducing re-offending, i.e.,
criminogenic needs.” The Responsivity principle “refers to delivering programmes in a style and mode
that is consistent with the ability and learning style of the offender” (Risk, Need & Responsivity,
Corrections n.d.).

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Andrews and Bonta (2007) identify four ‘main’ risk/need factors that need to be addressed and another
four ‘moderate’ risk factors. The four ‘main’ needs are antisocial attitudes, anti-social associates, anti-
social temperament or personality, and a history of anti-social behaviour. The four ‘moderate’ needs are
described as substance abuse, dysfunctional family relationships, lack of achievement at school or work,
and lack of involvement in prosocial recreational/leisure activities,

In the PAC Writing Guide, these factors have been condensed into a tick list of ‘Offending Related
Factors’. The items on the list are vague, and quite different to those identified by Andrews and Bonta.
They include ‘relationships’, ‘lifestyle’ ‘friends’, ‘attitudes’, ‘alcohol use’, ‘drug use’, ‘gambling’, ‘violence’
and ‘sexual arousal’ (see Figure 2). Mental health issues, neuro-disabilities, learning difficulties and
traumatic brain injuries are not on the list.

Figure 2: Standard tick box for offending related factors in the PAC Writing Guide

To assist in the identification of alcohol or drug ‘needs’, the Guide includes a five-page screening test for
alcohol and drug problems. It also has a one-page screening test for problem gambling. But the Guide
does not contain a screening test for any kind of mental health disorder, learning disability or for
traumatic brain injury – although many such tests are available.2

Presentence reports – literature review

Little research has been conducted on judges’ perceptions of presentence reports. In 2000, Deane
analysed the impact of PACs on sentencing outcomes of 152 offenders in the Wellington district courts.
No judges were interviewed. The study was designed to ascertain whether these reports led to race or
gender bias at sentencing. Deane found little to suggest any kind of ethnic or racial bias by probation
officers and concluded that “cultural factors were rarely mentioned” (p.103).

2
For instance, the Brain Injury Screening Tool (BIST) takes six minutes to complete.

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The most in-depth analysis of presentence reports was conducted by Gould (2021) at Waikato
University. She examined to what extent judges follow sentence recommendations made by probation
officers, and whether this led to equal treatment of defendants under the law. Gould interviewed six
judges in Tauranga, observed 54 defendants being sentenced and sent written questionnaires to 21
defence lawyers, 16 of whom responded. Despite the limited focus of her study, the survey questions
were quite broad and “highlighted how common it is for probation officers’ negative perceptions (about
defendants) and/or inaccurate or incorrect information to be presented to the court” (p. 136). A written
response from a defence lawyer summed up her findings as follows:

“Bad/shallowly written reports damage the integrity of the criminal justice system. If our clients
perceive that a report is a 10-minute conversation with a PO who is overworked, undertrained and not
particularly engaged in helping them, followed by a three-page cookie-cutter document that only
includes the worst things that the client said, which have been taken out of context and show no insight
or empathy to the client’s experience … then there is absolutely no reason for our clients to engage in
the process. If they do not engage, then we have no opportunity to offer real and effective
rehabilitation assistance” (p.108).

Concerns about PACs have also been raised by other actors in the justice system. In an interview with
Radio New Zealand, Chester Burrows, chair of the Criminal Justice Reform Panel, said “presentence
reports currently being prepared for Court were badly written and did not provide relevant information.
We are hearing from judges and from lawyers that they are cut and paste documents using the same
phrases over and over again” (McLachlan, 2019). In the same story, Nigel Hampton, QC is quoted as
saying: “the pre-sentencing reports have turned from in-depth studies to routine 'box-ticking' exercises
over the past 20 years.”

In 2016, the Ministry of Justice surveyed district court judges about these issues. The MOJ did not
specify how many judges were interviewed, but said at least half expressed a general dissatisfaction
with PAC reports (MOJ, 2016). My inquiry seeks to expand on this by asking numerous follow up
questions about judges’ dissatisfaction with different aspects of PACs, including their relevance to
rehabilitation. Judges were also asked to comment on the benefits of presentence reports compared
with the three other kinds of reports they receive.

Alcohol & Other Drug (AOD) Assessments: current practice and literature review

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Section 25 of the Sentencing Act allows the court to “adjourn the proceedings in respect of any offence
after the offender has been found guilty or has pleaded guilty” for a number of purposes. These include
enabling “a rehabilitation programme or course of action to be undertaken” [25(1)(d)], and allowing
“the court to take account of the offender’s response to any process, agreement, programme, or course
of action” [25(1)(e)].

This enables judges to order comprehensive alcohol and drug assessments on defendants and, when
appropriate, to delay sentencing until they have completed treatment. In 2008, Judge John Walker
established an innovative scheme which only operates in Wellington, Porirua and the Hutt Valley (OIA
Response, 18 May 2022). He approached alcohol and drug counsellors in private practice asking if they
would make themselves available to conduct AOD assessments on offenders appearing in these three
courts – funded by the Ministry of Justice. This scheme has now been running for 15 years, with 12 to
15 qualified clinicians providing these assessments.

When a judge orders an assessment under this scheme, court registrars make a referral to one of the
AOD clinicians on the list. Each referral has a covering letter describing what information is required.
This includes the identification of “all substance abuse and predisposing, precipitating, perpetuating and
protective factors”; “any other additional issues and/or disorders that are relevant to or contributing to
the offending e.g. gambling, mental health related problems, or trauma”; and “any other relevant
information that may assist the judge in sentencing such as personal history - including psychiatric
history, relevant medical history, current medications, family history circumstances and the individual’s
developmental history” (Standard Covering Letter, n.d.). In 2021, 435 comprehensive AOD assessments
were delivered to Wellington area judges under this scheme (OIA Response, 2 May 2022). See Figure 3.

Figure 3: Total number of referrals for AOD Assessments ordered by judges in Wellington area
courts in 2021

Court Location Adult court Youth court Total

Hutt Valley 175 3 178

Porirua 103 1 104
Wellington 145 8 153
Total Assessments 423 12 435
OIA Response, 2 May 2022

In Auckland, judges in the two drug courts (the AODT) can also order comprehensive assessments -
funded by the Ministry of Health (Litmus, 2015). The AODT began as a pilot program in November 2012

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and became permanent in 2019 (District Courts, n.d.). Defendants must be assessed as substance
dependent to be accepted onto the programme, and each court takes a maximum of 50 participants at
any one time. This suggests the number of AOD assessments conducted for the AODT in a given year is
100 to 200 (allowing for some who don’t meet the criteria for dependence). This represents 1.0% of the
nearly 20,000 adults convicted in Auckland’s courts each year (NZ Stats). A third drug court was
established in Hamilton in 2021 and will take another 50 participants (MOJ, n.d.). This may require
another 100 comprehensive assessments each year. Judges in Nelson also have access to
comprehensive assessments. In 2021, they were provided with 210 such reports (OIA response, 27 May,
2022).

The funding arrangements established to provide these AOD assessments are unique. In most districts in
New Zealand, arrangements to pay for AOD assessments have never been established. This means that
judges in most courts cannot actually order an assessment when they want one, although one judge said
he may suggest to defence counsel that an AOD clinician in private practice could provide such a report
– funded by legal aid. In 2021, a total of 176 AOD assessments were requested by lawyers in different
parts of the country funded in this way (OIA response, 23 August, 2022). See Figure 4.

Figure 4: Total number of AOD assessments requested by lawyers & funded by legal aid in 2021.

Law Type Disbursement Group Number of Disbursements

Criminal AOD Assessments 49
Criminal AOD Reports 114
Total 176
The MOJ advised that Assessments and Reports are the same - just recorded differently.
OIA Response 23 August 2022

There is a caveat to this. In a few districts, judges can access brief assessments, which involve little more
than a screening test for substance abuse. These screenings are conducted by AOD counsellors
stationed in the court, known as ‘in-court clinicians’. If the judge wants a screening, the defendant can
be stood down to talk to the counsellor for 20 to 30 minutes.3

In-court clinicians are available in Nelson, Blenheim, Masterton, Tauranga, Northland, Kaikohe,
Wellington, Porirua and Hutt Valley (MOJ, 2016, Clinicians in court). Most of these are joint funding
ventures between the MOH and MOJ. This means that when it comes to the availability of AOD
clinicians, the three Wellington area courts are particularly well served. All three have an ‘in-court
3
In Nelson, the in-court clinician provides comprehensive assessments which appears to be an exception (OIA
response, 27 May 2022).

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clinician’ to provide brief screenings, as well as independent AOD clinicians available for more
comprehensive reports. Outside of Wellington, only six out of 63 district courts in the country have
access to brief assessments.

An evaluation of the in-court clinician service by the Ministry of Justice in 2014 (as cited in 2016)
concluded that overall “use of the service was low, despite evidence of high demand” (p. 44). In 2016, a
second evaluation found that only 6% of all defendants appearing in (the nine) courts were referred to
the in-court clinician. The Ministry concluded that any potential benefits provided by this service “could
not be assessed due to difficulties in accessing data… There is no flag or other entry in the court
administrative data to identify which offenders received an AOD brief assessment from the clinician at
court…(and) there is no system in place to link the AOD brief assessment to sentencing outcomes… We
were not able to assess the overall impact of having an AOD clinician in court” (p.7-8).

Despite the lack of data, the Ministry asked the opinions of judges about the usefulness of these
screenings. The MOJ reported: “All the judges who had access to an AOD clinician said they took the
clinician’s recommendations into account most of the time and that it would be rare not to. Without the
clinicians, judges reported that they lacked the evidence to know the extent of offenders’ AOD
problems, and did not know how to address such issues through sentencing. One judge credited the
clinician with helping them avoid ‘a potshot in the dark’. (Another) judge said he relied on the clinician’s
recommendations 100% of the time” (MOJ, 2016, p.34). Additional comments included a suggestion
that the Ministry should “expand services so AOD clinicians are available for all district courts around the
country” (p.9).

Adding together the number of assessments ordered by judges and by lawyers (from OIA responses), it
appears judges receive about 1,200 AOD assessments a year prior to sentencing. See Figure 5 on the
next page. This represents 1.8% of all those appearing in court - bearing in mind that the majority have
problems with substance abuse.

The MOJ study (2016) provides anecdotal information that judges find AOD assessments helpful, even
though their availability is extremely limited. My research reinforces this perception, but also allows
judges to compare the utility of AOD assessments with PACs. It strengthens the case for expanding the
availability of substance abuse screening in court, and making comprehensive AOD reports available to
judges in every district court in the country, with formalised funding arrangements.

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 Figure 5: Comprehensive AOD assessments provided to court prior to sentencing

Region Funding arrangement Comprehensive

AOD assessments
Wellington area MOJ 435
AOTC Auckland Health 200 approx
AOTC Hamilton Health 100 approx
Nelson Health 210
Rest of country Legal aid (MOJ) 176
Total 1,121 approx

There’s another factor to consider. Given the limited availability of AOD assessments, in many districts,
judges can avoid the need to obtain one by imposing a sentence condition ‘to attend alcohol and drug
assessment and treatment as directed by a probation officer’. In effect, this passes the problem on to
the Corrections Department. Using the OIA, I asked the Ministry of Justice how many of those convicted
in court in 2021 received such a sentence condition. They replied: “this level of sentencing detail is not
recorded in the Case Management System used by the courts” (OIA response, 7 October 2022). This is
clearly problematic. Not only does the Ministry lack data capture systems to measure the impact of the
in-court AOD clinician service, it also does not record the number of defendants with sentence
conditions requiring AOD assessment or monitoring.

Mental health reports: current practice and literature review

When the court becomes aware that a defendant may have some kind of mental health problem,
defence counsel can order a mental health assessment from an independent psychologist or
psychiatrist. In 2021, lawyers ordered mental health reports on 709 defendants - funded through legal
aid (OIA response, 23 August 2022).

Alternatively, the judge can order a report under section 38 of the Criminal Procedure (Mentally
Impaired Persons) Act (CPMIP), 2003. Sections 38(1)(a) or (b) allow for the preparation of a report to
determine whether the defendant is ‘insane’ or ‘unfit to stand trial’. If a psychologist or psychiatrist
determines that the defendant is fit to stand trial, he or she is required to enter a plea, and the charges
proceed to trial or sentencing in the usual manner (Sinclair, n.d.). If the defendant has less serious
mental health issues, sections 38(1)(c) or (d) allow for mental health reports to ‘determine the type,

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length or nature of sentence’. In these cases, the psychiatrist generally provides a diagnosis and
treatment recommendations to assist the judge at sentencing.

The Ministry of Justice advised that in 2021, a total of 1,486 mental health reports were ordered on
defendants under this Act (OIA response, 19 April, 2022), representing 2.5% of the 60,000 adults
convicted in court each year. The number is misleading as the CPMIP Act requires not one, but two
psychiatric reports to determine fitness to stand trial (section 8A). This means the actual number of
individuals assessed may be as low as 750. Of this number, in 2020, only 190 were found ‘unfit to stand
trial’ and 49 were found ‘not guilty by reason of insanity’ (Skipworth & Brookbanks, 2022). So the vast
majority of those assessed under the Act proceed through court ‘in the usual manner’.

The CPMIP Act is used for the assessment of defendants who have severe mental illness (such as
schizophrenia) and may require compulsory treatment in a psychiatric hospital (Health New Zealand,
2017). Reports have to be provided within 14 days of a court order, although the judge can grant an
extension for up to 30 days. Shaskey & Burrell (2022) found that even with extensions, these reports are
seldom provided within the required timeframe, due to a chronic shortage of psychiatrists (Ahmer,
2022; Witton, 2022).

The Act is not generally used to assess defendants with low-level mental health issues such as
depression, anxiety, ADHD, or post-traumatic stress disorder. These kinds of issues affect a much higher
percentage of individuals than defendants with severe mental illness. To address lower-level needs,
most district courts have a Forensic Court Liaison Nurse (FCLN) whose role is to conduct mental health
screenings on defendants (McKenna & Sweetman, 2020).

Referrals to the FCLN are made by judges, the police or defence lawyers, mostly by word of mouth. I was
unable to find data on what percentage of the 60,000 defendants convicted each year are actually
screened by the FCLN. For the limited number who are, Tarrant (2014) found that only 7% were
subsequently referred on to general mental health services. He points out that relying on non-health
professionals (such as lawyers or police) to identify defendants who may have mental disorders is
problematic, with the result that “people with mental impairment in the court population may not be
identified” (p.16).

Skipworth and Brookbanks (2022) examined the broader challenges that defendants with mental health
issues experience. They found “that mental illness may contribute to the increasing number of remands
in custody, delays in resolving cases, and exposure of mentally ill defendants to prolonged periods of

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remand in toxic prison environments in which compulsory treatment is not possible under current
policy, and no rehabilitation programs are offered” (p.551). Skipworth and Brookbanks also highlight
the importance, and the difficulties involved in providing integrated treatment for defendants with co-
existing substance use and mental health disorders.

In summary, a number of studies address the difficulties involved in the assessment and treatment of
mentally ill defendants in the New Zealand justice system, but the majority seem to have focused on the
mechanisms involved in determining fitness to stand trial. Few studies have examined the much broader
question of how the courts address less serious mental health issues that defendants present with.
None of these studies appear to compare the number of mental health reports judges receive with the
prevalence of these issues among the offending population. My enquiry attempts to highlight this issue
and points out the extremely limited availability of both mental health reports and alcohol and drug
assessments when judges are focussed on a rehabilitative sentence.

Cultural reports: current practice and literature review

Section 16 of the Criminal Justice Act, 1985, allowed the court to hear from ‘any person called by the
offender’ to speak on their behalf about their ethnic or cultural background. According to former district
court judge, David Harvey (2021), it was seldom used. In 2002, this provision was replaced by Section 27
of the Sentencing Act, which says “the offender may request the court to hear any person called by the
offender to speak on personal, family, whanau, community, and cultural background of offender”. The
Act doesn’t mention written reports, nor does it specify the qualifications required to be a report writer.
This provision was rarely used until 2018, when Chief District Court Judge, Jan-Marie Doogue, urged
court officials to use section 27 to take “a more comprehensive approach at sentencing” (District Courts.
n.d.). After that, the number of written reports rose from two in 2017, to 20 in 2018, then 37 in 2019
(Harvey, 2021). In 2020, the number jumped to 1,557 (Sharpe, 2021) and in 2021, jumped again to
2,181, at a cost of over $6 million though legal aid (OIA response, 15 February, 2022).

Harvey (2021) points out that although the language in Section 27 makes no reference to ethnicity, the
intention behind the legislation was to address the high rate of Maori incarceration. He examined
recent cases where judges commented on the purpose of cultural reports and concluded that they need
to identify “issues of deprivation”, and establish “a causal nexus between the matters raised in the
report and the issue of culpability” (p. 2). Harvey noted that “these reports contain a far greater

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amount of detail about the background of an offender than may be gleaned from the often opaque and
formulaic language of a Provision of Advice to Courts report” (p.13).

Oakley (2020) conducted a critical analysis of section 27 for her Master’s thesis. She interviewed eight
defence lawyers and four cultural report writers, but no judges. She states that, in theory, section 27
provides a mechanism to address the impact of colonialism and institutional racism, but found that both
lawyers and report writers do not believe it achieves this. Cultural reports may lead to a sentence
discount, but section 27 “does not punish the racist actors who had influence over the individual’s life
and it does not force upon the system a change in thought or behaviour” (p. 78).

Writing in the Maori Law Review, Frederickson (2020) points out that systemic deprivation is not limited
to Maori and says “it has become standard practice for defence counsel to request a section 27 report
providing judges access to invaluable information about the offender’s family, whanau, community, and
cultural background” (p. 1). He notes that in some cases, documented evidence of systemic deprivation
has led to discounts up to 40% off the defendant’s sentence, but claims that judges have not been
consistent in the application of discounts, especially in cases involving serious violent offending.

Very little attention has been paid to rehabilitation issues in any of the literature on cultural reports. The
focus has been almost entirely on the legitimacy and consistency of the discount to be obtained and
whether a nexus has been established between the ‘cultural’ issues and the offending. My study has
determined that judges now receive more cultural reports than AOD or mental health reports. See
figure 6 for a comparison. This number seems likely to grow as more ‘report writers’ jump on what may
have become a lucrative bandwagon - some writers charge over $6,000 for a report (Vaughan, 2021).
My study also explores whether judges see any rehabilitative benefits associated with cultural reports in
addition to any discount off the sentence that may be granted.

Figure 6. Comparison of the number of reports received by judges prior to sentencing

Type of Ordered by judges Ordered by lawyer, Total As a percentage of

Report (or mandated by law funded by annual convictions
- PAC only) legal aid (60,000)
PAC 27,067 (2019) NA 27,067 45%
AOD 1,500 (approx.) 176 (2021) 1,700 approx 2.8%
Mental health 1,486 (2021) 709 (2021) 1,500 approx 2.5%
= approx 750 people
Cultural NA 2181 (2021) 2,181 3.6%

17
 Research questions

Significant concerns clearly exist about how useful the four different types of report are to judges when
it comes to rehabilitation. Presentence reports are readily available but generally contain little
information about the defendant’s background; the availability of alcohol and drug screening and
assessments is limited to a few districts; a few mental health reports are requested each year, but are
mostly conducted to determine fitness to stand trial; the use of cultural reports is on the rise but are
mostly provided to obtain a discount off a potential prison sentence. What research does exist has
examined one type of report in isolation from the others. This project gives judges the opportunity to
comment on the utility all four kinds of report, especially when rehabilitation is a key consideration at
sentencing.

Research questions to be answered include:

 how useful are these different kinds of reports to judges;

 which kind of report is more useful and why;

 do these reports contain sufficient background information to assist judges motivate or
mandate offenders into rehabilitation;
 do judges have concerns about the availability of these reports;
 do judges have concerns about the quality of these reports;
 what suggestions do judges have to improve the quality and quantity of information they
receive;
 what are the barriers to getting defendants into treatment or rehabilitation even when the
judge sees this as a priority?

Method

To address these questions, I needed to conduct open-ended, semi-structured interviews with a sample
of experienced judges. The semi-structured approach enabled me to ask each judge the same key
questions to ensure consistency in the topics covered while, at the same time, allowing each judge the
freedom to respond in their own way. The list of questions is contained in Appendix A, although not
every question was asked of every judge. Follow-up questions, which were not necessarily on the list,

18
were asked when clarification was needed. This led to significantly more information about different
aspects of sentencing than would have been received by sticking solely to the list.

In order to obtain a national perspective on the availability of alcohol and drug assessments, I needed to
interview judges from the Wellington area where AOD assessments are readily available, but also from
other districts where AOD assessments are not available. I requested judges to be of both genders,
representing both Maori and non-Maori. Ethics permission was obtained from Victoria University (No.
0000030253) and from the Judicial Research Committee (JRC). Based on these requests, the JRC selected
the judges who participated.

Six judges were interviewed, three male and three female. One judge had Maori heritage. The number
of years that participants had been a district court judge varied from six years to 25 years, with an
average of 13 years. The two judges with the most experience (22 and 25 years) had served in courts all
over the country. All six were experienced in dealing with criminal cases, although one judge, with seven
years’ experience, said 75% of her work was in the family court and only 25% in the criminal court. Prior
to the interviews, the selected judges were sent an information sheet explaining the nature and purpose
of the research and the list of questions to be asked. They were also sent a consent form which they
signed to indicate they were willing to proceed.

The sample size of six was determined in consultation with my supervisor and by the limited time
available for a 10,000-word research project. However, there are 182 district court judges in New
Zealand (NZ Courts). I make the assumption that, on key issues, the opinions of the six judges are
reasonably representative of the larger number. This assumption is supported by two main
observations. First, on key issues, there was little divergence between the tenor of responses from all six
judges. In other words, the sample displayed a high degree of internal homogeneity. Second, as we shall
see, the opinions expressed by the six judges turned out to be remarkably similar to the perceptions and
comments made by previous judges, academics and justice system actors as described in the literature
review.

Interviews were conducted and recorded using Zoom, each lasting approximately one hour. The
interviews were transcribed using software called Descript. The software was generally very accurate,
but each transcript had to be compared with the recording and, where necessary, a few minor
corrections to the transcript were made.

19
Each transcript was then summarised. Using Braun and Clarke’s (2021) approach to thematic analysis,
this increased my familiarity with the data (phase one). This enabled me to generate a number of
common codes amongst the responses (phase two), which were broadly aligned with the list of research
questions. Each type of report required up to 13 codes. Another four codes described obstacles that
judges face when trying to mandate offenders into rehabilitation programmes, and another code
documented their recommendations for improvement. See Appendix C for the list of codes.

The codes were transferred to an Excel spreadsheet and the responses of all six judges on each topic
were listed under that heading. This enabled each judge’s response under each code to be compared
with the responses of the other five judges - leading to the first set of themes (phase three). I then had
to narrow my focus onto information which was the most relevant to the research questions. This
required a review of my initial themes (phase four), and a closer examination of the context in which
they occurred (phase five). This process of review involved ongoing analysis and rewriting to produce
the report (phase six).

I need to mention my personal role in the justice system. I have been an alcohol and drug counsellor for
the last 18 years and have provided thousands of AOD assessments to the courts. This role has given me
considerable familiarity with the different kinds of reports about defendants. Also, three of the six
judges indicated they had read AOD assessments I have written. This familiarity with the workings of the
justice system creates the possibility of confirmation bias in my coding, my interpretation of themes and
my conclusions. However, Braun and Clarke (2019, cited in Byrne, 2021) state that the reflexive
approach to thematic analysis “highlights the researcher’s active role in knowledge production” (p.
1,393) and embraces “the reflexive influence of (the) interpretations of the researcher” (p.1,394). This
perspective allowed me to take a constructionist orientation to the judges’ responses bringing my own
understanding of relevant data into the analysis.

Findings - Reports

The findings are presented in two parts: reports and themes, with the latter including discussion of
those themes. In the first part, comments and statements by judges on each of the four types of report
are presented separately. This is collated data based on the codes relevant to each kind of report. Due
to the need to be concise, only the most significant information is presented. In this section, the
information is based on what judges actually said with little to no interpretation. The themes section
describes links and consistencies in the judges’ comments and connects them to the relevant literature

20
and official information responses about current practice. As such, the themes section is interpretive,
with a more constructionist approach to the information.

Findings: Presentence reports (PACs)

All six judges expressed concerns about the value of presentence reports. The degree of negativity
ranged from “something is better than nothing” (Judge E) to “they are woeful… they’re not at all helpful.
Often the PAC report is the least helpful piece of information that a judge has for sentencing purposes”
(Judge B). Judge D said: “they’re once over lightly in terms of background” and “I think there's a lot of
stuff that's not being picked up.” Judge A said: “I don’t like to be critical,” but then made a number of
critical comments. He felt the quality of information in PACs was “low-level” and said they “generally
failed to identify the core of the problem”, especially when there were mental health, brain injury or
neuro-disabilities involved. Judge F said: “there's very little that's of any use in cultural, behavioral, or
causative factors in the probation report and there should be. Mostly you could do without probation
reports - bit of a waste of taxpayers’ money, to be honest”.

Judges also expressed concerns about the accuracy of information contained in PACs, especially when
describing the defendant’s remorse or motivation to change. Judge A, (who doesn’t like to be critical)
said “quite often the probation reports have information in them which is clearly contradicted in the
alcohol and drug assessment”. Judge B pointed to conflicting information between PACs and cultural
reports. She said: “there's often a huge disconnect between information about someone's personal
circumstances and the attitude of the person in a pre-sentence report as compared with the section 27
report.” On the issue of conflicting information, judge E said “that happens all the time”.

Judges dealt with conflicting information in different ways. Judge A said he would be more likely to
believe what was in an alcohol and drug assessment than a presentence report, because AOD assessors
spend more time talking to the defendant. He also said: “I find it hard to believe that a probation officer
would incorrectly record what was said by the defendant,” but then went on to describe difficulties that
probation officers sometimes have engaging with defendants, and how this affects the accuracy of
information they receive. Judge E said if there was conflicting information, he would “talk to the
defendant to get to the bottom of it”.

Findings: alcohol and drug assessments

21
Two categories of feedback were received from judges about alcohol and drug assessments. One
category came from judges in districts where AOD assessments were readily available. The other
category was from judges who sat in districts where they were not.

Judge D sat in a provincial centre with a population of approximately 126,000 people. She had no access
to alcohol and drug assessments and had never even seen one in her seven years as a judge. Judge B, in
an area with a population of about 70,000, said she had no way of ordering them, but said defence
counsel sometimes provided them through legal aid. This judge, when asked which kind of report was
more helpful, said: “a comprehensive drug and alcohol assessment hands down” even though she
couldn’t order them. Judge C, in an area with a population of 250,000, also did not have access to
alcohol and drug assessments and did not know how to obtain one. The interview provoked his concern
and he said he would bring this issue up at the next meeting with his fellow judges.

Two judges were situated in the Wellington area, where in-court alcohol and drug assessors are
available, as well as independent AOD clinicians who provide comprehensive assessments. Neither of
these judges had any difficulty accessing alcohol and drug assessments when they wanted one. Judge A
described comprehensive AOD reports as “incredibly valuable”. Judge E said “in some cases, I’ve asked
for an AOD assessment, and not a probation report because the detail that you get in an AOD
assessment is better. I think the engagement is better between the defendant and the report writer, the
expertise is there, and you get all the background covered.” Judge F, who has served in courts all over
the country including Wellington, said: “we could say to the taxpayers - do away with the PAC reports
and just have comprehensive drug and alcohol reports.”

Findings: Mental health reports

All six judges were able to order mental health reports irrespective of where they served. When
concerns were raised about insanity or fitness to stand trial, judges ordered a full assessment under
section 38(1)(a) or (b) of the Criminal Procedure (Mentally Impaired Persons) Act (CPMIP), 2003. But
they would usually refer defendants to be screened by a court liaison mental health nurse first. Judge A
said: “we get people screened by clinicians who I find very trustworthy, very professional, and we know
what to do next”.

Even if the assessment found the defendant was fit to stand trial, most judges said there was usually
sufficient information in these reports to help craft a rehabilitative sentence. Judge E said: “section 38s
can be incredibly helpful”. However, four judges expressed concerns about the time it took to obtain

22
these reports, noting that for fitness to stand trial, two assessments are required which contributes to
delays.

Judges C and E said that if the reports ordered for fitness to stand trial under section 38(1)(a) or (b) did
not contain recommendations for treatment, they might order a third report for disposition under
section 38(1)(c) and (d). However, three judges said the documentation they had to read on each
defendant was already excessive, and they would be reluctant to order a mental health report unless it
was absolutely necessary. Judge B said that mental health directors are “constantly in touch with us
saying that judges are ordering too many reports. They can’t meet the demand.” However, judge F said:
“If we did section 38 reports to assist on sentencing where it's needed, nearly every single defendant
that came before the court should have them.”

Judge D described the way defendants with mental health issues were treated in court as “barbaric”.
She believed defendants with mental health issues needed more privacy than was available in a public
court appearance, adding “this person is mentally disordered and they do not need an audience”. Judge
D wanted to see mental health courts established in New Zealand to address the growing number of
defendants with mental health issues.

Findings: Cultural reports

The judges all accepted the reality of intergenerational trauma stemming from New Zealand’s colonial
history. However, some judges indicated this was often presented in cultural reports in a long-winded,
formulaic way. Rather than historical issues, most judges were more interested in details about the
offender’s immediate background and current circumstances and the impact of systemic deprivation on
their offending. A number of judges expressed concerns about the length of cultural reports. Judge F felt
that if judges attended education courses about the impact of colonialism and inter-generational
trauma, “this would alleviate the need for ten pages in every report describing those issues”.

Two judges said they would rather obtain verbal information from the family than information from a
written report. Judge E said that written reports tend to be “formulaic and seem to focus on volume”
and that “the best information I get is from family who arrive on the day. That information is incredibly
useful”.

Judges agreed that cultural reports were generally supplied to the court to obtain a discount off the
sentence. Judge A said: “we usually only get cultural reports in serious cases where imprisonment is
going to be imposed.” Judge B was concerned that defence lawyers would rather request a cultural

23
report, than an alcohol and drug report, because they were driven by “streetwise defendants in prison
(who said) they need their section 27 report to get the discount”.

Most judges were adamant that even if a cultural report led to a discount, they were also helpful in
identifying rehabilitative issues. This was more likely to be the case if the discount helped to bring the
sentence down to less than two years – at which point a community-based sentence, or short prison
sentence became an option. However, Judge F pointed out that if a lengthy, but discounted, prison
sentence was imposed, the offender would eventually end up before the parole board, by which time,
“rehabilitation is out of our hands.”

Themes & Discussion

A number of themes emerged from the research reflecting the key questions the project was intended
to address. In response to questions about the purpose of reports in general, all six judges gave similar
replies. They all indicated that rehabilitation was important when considering what sentence to impose,
and so they wanted in-depth information about the defendant’s background and the circumstances
which contributed to the offending. Judge D said: “the key is to get relevant information, and trying to
understand more about the person is incredibly important”. In particular, judges wanted to know if the
defendant has issues with substance abuse, trauma, mental health, neuro-disabilities or any other
problem which impacts on their offending or their potential for rehabilitation. They also wanted to
know whether the defendant displayed insight or remorse and what treatment or rehabilitation options
were available.

A related concern was that presentence reports simply do not provide enough background information.
Judges receive nearly 30,000 PACs every year from which, in regard rehabilitation, it seems they derive
little benefit. A number of possible explanations were offered for this. Some judges felt that probation
officers are not adequately trained in the writing of presentence reports. This appears to be a valid
observation. According to Gould, (2021), probation officers receive only two days of training on the
writing of these reports, and this does not include screening for mental health issues, brain injuries, or
other neuro-disabilities. This lack of training appears to be reinforced by Corrections’ adherence to the
limited definition of Risk under the RNR model (Andrews and Bonta, 2007), and the tick-box, formulaic
layout of pre-sentence reports. Another explanation for the shortcomings of presentence reports was a
lack of engagement with defendants. Judges felt that probation officers are overworked and simply
don’t have time to conduct in depth interviews, often resorting to brief interviews over the phone.

24
Judges suggested a more holistic perspective of risk would include the impact of mental health and
other personal deficits on criminal behaviour. Judge D made the point that: “we've got all these people
in our system who have neuro-disabilities. They can't feel (remorse). And that accounts for a lot of the
reoffending and recidivism.” In this respect, some judges said the most helpful reports were those
conducted by clinical neuropsychologists. These reports provide clear diagnoses of mental health
disorders, fetal alcohol syndrome, traumatic brain injury and other neuro-disabilities as well as
identifying problems with substance abuse. Judge C described neuro-psychological reports as ‘rare as
hens’ teeth’.

Instead, judges have to rely on copious quantities of pre-sentence reports and a smattering of AOD
assessments, mental health reports and cultural reports. Access to each type varies considerably. Judges
‘order’ PACs from Corrections. They can also ‘order’ section 38 mental health reports, although there
are capacity constraints and substantial delays. They cannot ‘order’ cultural reports, but lawyers now
provide them as a matter of routine (Sharpe, 2018). But when it comes to alcohol and drug
assessments, which judges seem to find the most useful of the four different reports (in regard to
rehabilitation), a structured referral mechanism does not exist. Wellington is well served, but
nationwide, availability is haphazard and sometimes non-existent. It seems that defence counsel prefer
to obtain cultural reports (2,181 in 2021) rather than comprehensive AOD assessments (176 in the same
year) – even though both of these can be funded by legal aid.

Even when judges have all the information they need, significant obstacles still stand in the way of
mandating defendants into rehabilitation. For instance, depending on the circumstances, judges may
allow a defendant to attend an AOD program on bail. But residential treatment facilities have long
waiting lists (Lewis, 2020). For long-term programs such as Odyssey House in Auckland or Moana House
in Dunedin, the wait may be up to 12 months. Judge E advised that long waiting lists are “probably the
key frustration for everybody” (referring to his fellow judges).

Judge E went on to say that if a bed in a treatment facility does not become available, judges “get a bit
skeptical about the whole process. So maybe next time you just follow through on what the
recommendation is in the presentence report, which is another sentence of imprisonment. And that’s
what ends up happening now.” This response was not untypical. Most judges indicated that in the
interests of justice, they would not delay sentencing indefinitely while waiting for a place to become
available in a treatment or rehabilitation programme.

25
The prevalence of addictions, mental health issues and neuro-disabilities among those in the justice
system is not just a concern for judges. It has a much wider impact. If defendants with these issues end
up being sentenced to prison, it means they are unlikely to benefit from a Departmental rehabilitation
programme where ‘one-size-fits-all’. Corrections programmes are based on cognitive behavioural
therapy (What Works Now, 2009). The level of cognitive processing and insight required to benefit from
such programmes may not be available to prisoners with these deficits (Lambie, 2020). Treatment
failure leads to relapse and repeat offending on release, followed by further appearances in front of a
frustrated judge.

However, the majority of those appearing in court are given a community-based sentence - to be carried
out under the supervision of probation. Judges expressed varying degrees of concern about the ability
of probation officers to ensure that rehabilitation conditions are carried out. Judge F was scathing about
this. She complained that defendants “muck about” and are rarely breached for failing to attend
rehabilitation programs: “It doesn’t happen. This is a nightmare of stuff in probation.” The judge found
this so disturbing, she is now reluctant to impose conditions to be carried out by probation. Instead, she
prefers to delay sentencing and use judicial monitoring so she can question the probation officer or the
treatment provider, and keep an eye on the defendant’s progress.

These concerns are particularly relevant at this point in time since judicial monitoring is a key feature of
Chief District Court judge, Heemi Taumaunu’s (2020) plan to make all district courts ‘solution focused’.
In Te Ao Marama, he describes eight best practices from solution focused or specialist courts already
operating in New Zealand - such as the drug courts in Auckland and the Young Adult Court List in
Porirua. These include infusing te reo and tikanga Maori into court operations; improving the
information available to judges; toning down formalities and ‘active and involved judging’. To illustrate:
defendants in the AODT in Auckland, take an average of 18 months to complete whatever programmes
they are required to attend (Litmus, 2016). They are brought back to court on a regular basis so the
judge can talk to them, drug test them, encourage them and monitor their progress.

The AODT was given $10 million in additional funding over the course of the pilot (MOJ, 2016). Every
defendant is screened and, if suitable, then has a comprehensive AOD assessment. That assessment
helps identify mental health or any other issues which may be involved. This allows for targeted
treatment, as a result of which, the AOTC reduces reoffending by 54% in the first 12 months on

26
completion of the programme (Thom, 2017). This makes it the most effective justice related
intervention in New Zealand.4

Under the Te Ao Mārama model, Taumaunu says no extra funding will be given to district courts to
become ‘solution focused’. This is not a hopeful sign. On this point, Judge F said: “what you could say
about Te Ao Marama is that it'll eek every bit of blood out of the existing stone. Because it's encouraging
everybody to go out of the community, including iwi and find out what's there, (but) it won't be
transformative until there is backup of wraparound services - particularly mental health, FASD, and
alcohol and drug treatment.” Judge E agreed, saying: “we just need more options and more residential
rehabilitation beds is a crucial part of that.”

A recent review of the justice system by the Criminal Justice Reform Panel (2019) came to similar
conclusions. One of the main recommendations in the Panel’s final report was “that the government
prioritize investment in community led transformative justice”. It said this could only be achieved by
prioritising “spending that supports restoration and rehabilitation and addresses risk factors associated
with criminal offending such as poverty and social deprivation, inadequate housing and homelessness,
attitudes towards abuse and violence, educational underperformance and exclusion, substance abuse,
and unmet mental health needs” (p.27).

The perception that extra funding is required is also endorsed by the Report of the Government Inquiry
into Mental Health and Addiction (2018). The Inquiry stated: “access to funding for mental health and
addiction services needs to be significantly increased, from the 3.7% of the population who currently
access specialist services to the 20% who experience mental health and addiction issues each year. An
explicit decision must be made to do this supported by funding a wider spectrum of suitable and
culturally acceptable service options - particularly alcohol and drug services” (p.103). A large proportion
of that 20% seem to end up in the justice sector. In 2017, the former chief executive of Corrections, Ray
Smith, complained: “The high prevalence of mental illness among prisoners means that the Department
of Corrections is managing more people with mental illness than any other institution in New Zealand”
(Investing in Better Mental Health for Offenders, p 5).

Conclusion

4
In comparison, drug treatment in prison, where so many offenders end up, reduces reoffending by up to 5% in
the first 12 months after release. See Corrections Department Annual Reports.

27
As described, significant concerns exist about the lack for screening for underlying substance abuse,
mental health issues and neuro-disabilities. On the other hand, despite the fact that judges see little
value in presentence reports, these are provided on approximately 27,000 or 45% of the 60,000
defendants appearing in court every year. Given the prevalence of addictions and mental health issues
among offenders, and the expressed need for judges to be well informed, it is disturbing to find that
even in the nine districts where an in court AOD clinician is available, only 6% of defendants were
referred to the clinician to be screened (MOJ, 2016). On some days, clinicians did not receive any
referrals at all. The most referrals on any one day was 12, “in a court where the reports were used
almost exclusively for excess breath alcohol cases.” The Ministry concluded that “these referral rates
are remarkably low given participants’ estimates of the proportion of criminal offending involving
alcohol and/or other drugs” (p. 15), and concluded that the service was under utilised and under
resourced.

The Ministry offered two reasons for this. First, AOD clinicians in the study thought they were not very
visible in court and the service they provide was insufficiently promoted to defence lawyers or to judges.
As a result, there was “no expectation from the bench” (p.16) to use AOD clinicians other than in an ad
hoc way. Second, judges are based in 26 main centres, but travel to other districts on circuit (District
Courts, n.d.). The perception was that visiting judges may be unaware of the in-court clinician service
and did not use it. Judges who responded to the MOJ survey in 2016 thought everyone should be
screened, as did most of the judges interviewed for this project.

Judges’ responses to questions about mental health reports suggests that the number of referrals to the
forensic mental health nurses in court is also very small - mostly related to concerns about insanity or
fitness to stand trial. For defendants with less serious mental health issues, Tarrant, (2014) found only
7% are subsequently referred on to general mental health services. The judges I interviewed were less
keen on the need for everyone to be screened for mental health problems (as opposed to substance
abuse) - seemingly due to the perception that mental health services are already overloaded. In the
meantime, no one is screening for neuro-disabilities at all. However, a screening test for these is being
developed for use in the Young Adult List Court initiated by Judge John Walker (Walker & Doogue,
2020). It remains to be seen whether this will be used, but Taumaunu (2020) says “it is highly likely that
the approach taken in the Young Adult List Court will inform aspects of the Te Ao Mārama model”
(p.23).

28
What are we to make of these observations? It may be that the percentage of presentence reports is so
much higher than the percentage of AOD reports, mental health reports and cultural reports for two
related reasons. The first is that when the court is considering a sentence of community detention or
home detention, the Sentencing Act mandates that a presentence report must be provided [Section 26A
(1)]. In other words, PACs are compulsory for a large proportion of those appearing in court. Judges
don’t need to request them, as Corrections has to provide them. The second reason is that an
established funding mechanism exists - Corrections also covers the cost. As a result, PACs are ingrained
in the culture and expectations of the court. Although judges may also receive AOD reports, mental
health reports and cultural reports, these are all provided in an unstructured way; their provision seems
to depend on the experience and awareness of the particular judge, the motivation and intentions of
defence counsel, and limitations on the capacity of health professionals to cope with demand.

The fact that judges do not necessarily make use of the in court AOD clinician even where this service is
available, combined with the small number of referrals to the FCLNs, highlights the ad hoc nature and
unreliability of existing mechanisms. It suggests that an increase in the level of screening for alcohol and
drug problems, mental health issues and neuro-disabilities will probably only occur if this is somehow
mandated by legislation or some departmental regulations, with guaranteed funding. Only then will
there be an ‘expectation from the bench’ that screenings are conducted on everyone.

In conclusion, further research is needed to examine whether a measure of compulsion could be

introduced into the production of screening services in court; and whether the provision of specialist
reports, especially AOD assessments and cultural reports, could be standardised rather than depending
on the current ad hoc approach. An international literature review of mechanisms used in other
countries to provide relevant information to the courts may be helpful. Given that solution-focussed
courts already operate in New Zealand, further research also needs to be conducted into their
effectiveness, particularly when they are required to operate without the benefit of additional funding
or wrap-around services to support them. This needs to include an examination of Corrections’ ability to
actually carry out rehabilitative sentence conditions when these are imposed by judges.

In the meantime, it seems judges receive a lot of information they don’t need, and not enough of what
they do need. If the justice system is to be transformed, the first step is to transform the quality and
quantity of information that judges receive.

Footnote:

29
Judge Taumaunu said that no extra funding would be given to district courts to become ‘solution
focused’. After completing the assignment, it came to my attention that, in fact, the Government has
agreed to provide funding to the tune of $47.4million over four years “for the growth and realisation of
Te Ao Mārama in the District Court.” Government has also allocated another $59.5m over four years to
“help retain a stable and resilient workforce to support the courts”. The Ministry wrote: “Maintaining
these critical services will be important for realising Te Ao Mārama, the vision for the District Court.”
See:

 Te Ao Mārama: New justice approach in district courts, but will Budget 2022's $47.4m make a
difference? Derek Cheng, NZ Herald, 4 June 2022.
 Budget 2022 Ministry of Justice

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Appendix A
Information sheet for judges and list of interview questions:
research project for Criminology Honours

Court reports: How useful are pre-sentence reports (PACs) and alcohol and drug (AOD) assessments to
judges in the sentencing process, and to what extent do they lead to meaningful treatment and
rehabilitation?

The interviews will be semi-structured. This means that I have some specific questions I intend to ask
but depending on the answers, the interviews may end up taking detours if further clarification is
required.
My understanding is that there are four kinds of background reports available to judges when it comes
to sentencing: presentence reports, alcohol and drug assessments, mental health reports and cultural
reports. Although my main focus will be on presentence reports and AOD assessments, I will also be
asking questions about mental health reports and cultural reports in order to provide context.
In preparation for these interviews, I have conducted a number of OIA’s to various government
departments and to DHB’s to find out how many of these different reports are provided to judges in a
given year.
 In 2019, 27,067 PAC Reports were completed. In 2021 (during the pandemic), the figure was
23,951.

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  In 2021, 1,486 mental health reports were provided to judges under section 38 of the CPMIP
Act. The MOJ was unable to distinguish between assessments ordered under sections 38 (1)(a)
& (b) relating to insanity and fitness to stand trial and sections 38 (1)(c) & (d) relating to the
type, and length of sentence and the nature of requirements the court may impose. Presumably
sections (1) (c) & (d) could be used to assist with rehabilitation.

 In 2007, Judge John Walker set up a scheme in the Wellington area courts which enabled judges
to call on independent alcohol and drug clinicians to provide comprehensive AOD assessments.
The MOJ advised that in 2021, judges in the Wellington area were provided with 423 AOD
assessments. The two drug courts in Auckland conduct approximately 100 AOD assessments a
year. Although half a dozen district courts in the country have a dedicated AOD clinician in
court, for the most part, these clinicians do not provide comprehensive AOD assessments. In
other words, the total number of AOD assessments provided to judges each year appears to be
about 600.

 In 2021, 2,181 cultural reports were funded by the MOJ - the numbers are going up each year.

My research will point to studies which suggest that up to 90% of prisoners in New Zealand have a
history of mental health issues and/or problems with substance abuse. Those problems are
compounded by neurobiological deficits including traumatic brain injury, fetal alcohol syndrome, ADHD
etc. Given the prevalence of these problems, my research questions are largely focused on finding out
whether judges have sufficient background information on defendants appearing before them.

Clearly, the most commonly available report is a PAC completed by Probation Officers. I intend to ask
questions about how useful these are to judges when it comes to looking at rehabilitation options. I will
also ask questions about the very limited availability of AOD assessments, and mental health
assessments. Below are the kinds of questions I would like to ask:

Personal

 How many years have you served as a judge?

 Are all four kinds of reports available to you in the district where you serve as a judge?
 In particular, are comprehensive AOD reports available to you?

Sentencing Principles

Section 7 of the Sentencing Act describes 8 purposes of sentencing. Only one of these [7(h)] refers to
rehabilitation and reintegration. The other seven are about denunciation, deterrence and keeping the
community safe.

 What kind of cases, or what circumstance bring rehabilitation to the front of the queue at
sentencing? Is it primarily when the offender is looking at a community-based sentence?

Pre-sentence Reports (PACs)

 From your perspective as a judge, what is the main purpose of a presentence report?

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  Presentence reports usually contain some background information about the defendant and a
sentence recommendation.
+ How useful is the background information to you? Is it too brief?
 How well do you believe that PSR’s identify a defendant’s
+ Problems with alcohol and drugs?
+ Underlying mental health issues?
+ Traumatic brain injury (TBI)?
 If background information in a PSR is too brief, and don’t cover mental health or TBI, how helpful
are they at addressing the sentencing requirement for rehabilitation?
 Overall, how useful are PSRs to you as a judge? Why?

Alcohol and drug (AOD) assessments

 What kind of circumstances would lead you to order a comprehensive AOD assessment?
 Comparing AOD reports with PACs, which of the two is more useful to you at highlighting
defendants’ issues that need to be addressed in rehabilitation?
 If an AOD report identifies a potential mental health issue and recommends a mental health
assessment, how likely is that you would order a mental health report?
 How often do AOD reports identify traumatic brain injury?
 How does the information in an AOD report impact on your sentencing decisions? Does it lead to
rehabilitation options?

Mental health reports

 If you request a mental health report prior to sentencing, is that generally for the purpose of
establishing whether the defendant is fit to stand trial?
 Would you necessarily be aware that a defendant might have a mental health problem which
contributes to their offending? How might you become aware of that?
 Do you ever order a mental health report because you suspect that, even though the defendant
is fit to stand trial, there is a mental health issue that needs to be addressed in rehabilitation?
How often does that happen?
 Would you be likely to order a mental health report for rehabilitation purposes if mental health
issues were not identified in a PAC or an AOD report?

Implementation of recommendations

 Residential treatment centres tend to have long waiting lists. When an AOD assessment
recommends residential treatment, but there is a long waiting list, as a judge, how do you deal
with that?
 In general, how difficult do you find it to implement recommendations in AOD reports or mental
health reports.
 What other kind of obstacles stand in the way of getting defendants into rehabilitation
programmes?

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 Appendix B

Consent to Interview

To the researcher: Roger Brooking, School of Social & Cultural studies, Te Herenga Waka—Victoria
University of Wellington.

• I have read the Information Sheet and the project has been explained to me. My questions have
been answered to my satisfaction. I understand that I can ask further questions at any time.

• I agree to take part in a Zoom interview in which the audio will be recorded.

 I understand the interview will be transcribed using automated transcription software.

I understand that:

• I may withdraw from this study at any point up to one month after the interview and any
information that I have provided will be returned to me or destroyed.

• The identifiable information I have provided will be destroyed on 4 November 2022.

• Any information I provide will be kept confidential to the researcher and the supervisor and the
transcriber.

• The findings may be used for an Honours dissertation and/or academic publications and/or
presented to conferences.

 The recordings will be kept confidential to the researcher and the supervisor.

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 Organisational consent has been provided and the organisation will/will not be named in any of
the reports.

• My name will not be used in reports and utmost care will be taken not to disclose any information
that would identify me.

• I would like a copy of the recording of my interview: Yes No

[ ] [ ]

• I would like a copy of the transcript of my interview: Yes No

[ ] [ ]
• I would like to receive a copy of the final report and have added Yes No
my email address below. [ ] [ ]

Signature of participant: ________________________________

Name of participant: ________________________________

Date: ________________________________

Contact details: ________________________________

Appendix C
List of Responses to questions seeking information from different sources asked
under the Official Information Act

From the Corrections Department

 5 June 2019: in response to questions about the number of probation officers employed
at Corrections and their qualifications.
 23 February 2022: PAC Guidelines supplied in response to questions about the writing of
pre-sentence reports.
 4 March, 2022: in response to questions about the number of PACs provided to judges
in 2021
 1 April 2022: in response to questions about whether Corrections provides mental
health report to judges.
 4 April 2022: in response to questions about the number of psychological assessments
conducted for the parole board in 2021.
 21 June 2022: in response to questions about the number of PACs provided to judge in
2019 (pre-Covid pandemic)
 21 June 2022: in response to questions about sentence recommendations by probation
officers.
From the Ministry of Justice

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  7 April 2021: in response to questions about the education standards for cultural report
writers.
 15 February, 2022: in response to questions about how many cultural reports were
funded by legal aid in 2021
 28 March 2022: in response to questions about cultural reports in the Family Court.
 30 March 2022: in response to additional questions about cultural reports in the Family
Courts
 19 April, 2022: in response to questions about the number of defendants referred for a
mental health assessment in 2021.
 2 May 2022: in response to questions about the number of AOD assessments provided
to judges in New Zealand.
 18 May, 2022: in response to questions about the scheme set up by Judge John Walker
in Wellington.
 10 June 2022: in response to questions about the number of defendants appearing in
the drug court in Hamilton
 23 August 2022: in response to questions about how many mental health assessments
and AOD assessments funded by legal aid in 2021
From District Health Boards

 25 May 2022: in response to questions about the availability of AOD clinicians to the
court in Bay of Plenty
 27 May, 2022: in response to questions about the availability of AOD clinicians to the
court in Nelson/Marlborough
 21 July, 2022: in response to questions about the availability of AOD clinicians to the
court in Waitemata
 10 August, 2022: in response to questions about mental health reports for the court in
Canterbury and West Coast
 16 June, 2022: in response to questions about the availability of AOD clinicians to the
court in Northland
 18 August 2022: in response to questions about mental health reports for the court in
Southland
From Oranga Tamariki

 21 March, 2022: in response to questions about cultural reports ordered by Oranga

Tamariki
From ACC

 28 June 2022: in response to questions about the number of mental injury assessments
conducted on behalf of ACC in 2021

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 Appendix D

List of common codes developed

for the four kinds of reports (Braun & Clarke, 2021).

PAC, AOD, Mental Health, & Cultural Reports Codes

Suggested improvements
Obstacles in way of rehabilitation
Perceived purpose of report
Most useful aspect of report
Quality of background/personal information
Quantity of background/personal information
Variations in quality
Accuracy/conflicting information
Overall standard
Training of report writers
Engagement of report writers with offender
Relevance to rehabilitation
Overall usefulness at sentencing
Usefulness compared to other reports
Use of sentence condition vs court assessment
One thing that would help
Availability of information/reports

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Availability of treatment resources in community
Role of probation for offenders on supervision
Emotional impact on judges

42