Source: Radio New Zealand
An Alcohol and Other Drugs Treatment Court sitting in 2022. RNZ Insight/Teresa Cowie
A move to strip family background information from alcohol and drug reports used in court has angered some defence lawyers and counsellors.
The Ministry of Justice said the change had been introduced to improve the consistency, quality and cost-effectiveness of the reports, and to improve justice services.
But it has come as a surprise to critics who were calling it a shock backwards step, and an “injustice” to judges and New Zealanders.
An alcohol and drug counsellor and a defence lawyer were concerned it undermined the Sentencing Act, made it harder to get people into the right rehabilitation, and increased the likelihood of reoffending, creating more victims and more cost down the line.
Alcohol and drug reports were used to help inform judges about whether an offender had addiction issues and whether they needed help.
The reports could also indicate the source of those problems and help inform sentencing and rehabilitation decisions.
When writing them, counsellors interviewed offenders about their history of alcohol and other drugs usage and their willingness to engage with rehabilitation services.
A study from 2016 showed in New Zealand more than 50 percent of crime was committed by people under the influence of drugs and alcohol. Ninety-one percent of prisoners had a lifetime diagnosis of a mental health or substance use disorder and 62 percent had this diagnosis in the past 12-months.
Why are the reports important?
Alcohol and drug counsellor, Roger Brooking, had been writing those reports for 20 years. He told RNZ nine times out of 10, when someone ended up with an alcohol and drug problem, it was because of things that happened to them when they were children.
He said a significant percentage of clients in the justice sector were born into a family where – for example – the parents were alcoholics or drug addicts, or the parents had mental health problems.
“I would include all that information in the report, explaining to the court or to the judge, these are the person’s background circumstances which led to their use of cannabis at the age of nine, alcohol at the age of 12, and methamphetamine at the age of 15, and that’s why they now appear in court.”
Co-chair for Te Matakahi, the Defence Lawyers Association New Zealand Elizabeth Hall told RNZ the reports were “incredibly useful” because they explained and unpicked why someone might have alcohol and drug issues.
“This idea that it’s just a choice that people make is so wrong,” she said, “alcohol and drug addiction issues are often a symptom of mental health struggles, they’re often a symptom of trauma.”
Defence Lawyers Association co-chair Elizabeth Hall. RNZ / Samuel Rillstone
She said she had seen the “huge value and the economy of having these reports prepared”.
“Once the report’s prepared, it doesn’t just inform only the sentence in court. It also then gets handed on to community probation or to the Corrections Department. It gets filtered through that person’s entire dealing with a sentence, with the work on rehabilitation, and it’s a resource available in the future.”
As well, Section 8 of the Sentencing Act 2002 states the Court must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.
The change
Earlier this month, the Ministry of Justice (MOJ) announced it had set up a new Approved Alcohol and Other Drug (AOD) Report Writers Service.
In a statement to RNZ, Lance Harrison, group manager (acting), commissioning and service improvement from MOJ explained it was doing so to improve the consistency, quality and cost-effectiveness of these reports, and to improve justice services.
The ministry was also aware of differences in report costs between courts and legal aid funded reports, and said it was “responsible for ensuring public funds are used efficiently and effectively”.
And the ministry acknowledged MOJ had received feedback from judges some reports were not up to standard, and had received feedback some report writers were not qualified for the work.
As part of the updated service, MOJ included guidance for a template that stated “the report should not include information on personal, family, whānau, community and cultural background relying on section 27 Sentencing Act 2002″.
Harrison said the new report template and guidelines were developed to ensure consistent quality and provide judges with key information.
He said the template focused specifically on alcohol and drug-related information about the participant and judges would continue to receive information from multiple sources to inform sentencing decisions. The Sentencing Act would not be underminded, Harrison added.
“Within their scope of practice, the approved report writer may include brief information about the offender’s mental health history as relevant.
“Approved report writers will continue to be able to exercise their professional discretion about the information they choose to include in the report, as they hold the relevant expertise,” Harrison stated.
Harrison also told RNZ there were other avenues to raise information about a participants’ personal, family, whānau, community or cultural background information relying on section 27 of the Sentencing Act 2002, for example “oral submissions or privately-funded reports”.
“The Ministry’s view is that AOD reports should not be used as a vehicle for presenting general information provided for under section 27 of the Sentencing Act 2002.”
Ultimately, MOJ said the change to the reports was part of ongoing efforts to improve justice services.
The criticism
But Brooking was “stunned” when he was alerted to the change, and “devastated” by it.
“It’s not something that judges would agree with, it’s not something that addiction specialists would agree with, because if you’re only putting in information about alcohol and drug use into these reports, they’re not going to be of much use at the end of the day.”
Alcohol and drug counsellor, Roger Brooking. Supplied
And he was not reassured writers would be able to “exercise discretion” because that information would not necessarily be available to those applying to be part of the service. He was also concerned about the reliance on Section 27 cultural reports to raise information about a defendants background.
He pointed out the government had scrapped funding for those reports. Now, Brooking said, a very small number of defendants a year might be able to fund a cultural report privately.
“They would have to have wealthy parents or have stashed away funds from drug dealing that the cops didn’t find.”
He said it was misguided to think Section 27 was still a “viable mechanism” to provide background information.
Brooking said he already struggled trying to get defendants into rehabilitation programmes because the waiting lists were so long, “now my job has been made even harder”.
Hall called it an “incredibly frustrating retrograde step”, and that it was also “grossly insulting to the expert practitioners” who wrote the reports.
“It’s like asking a doctor to give a diagnosis, but without explaining what the symptoms are, how the disease has come about in the first place, what’s been tried, what probably will work, what probably won’t work.”
She said it was shortsighted and would result in “shoving the problem further down the road”.
“The Ministry of Justice takes a very short term approach on what it considers to be financially efficient,” she said.
Hall said cost saving on a report that undermined the ability to provide rehabilitation to someone before the court would make it more likely that person re-offended, causing more victims and more cost.
She said there would “absolutely” be an economic outcome in terms of replication of work down the line.
“It’s an injustice to the judges who are being charged with the responsibility of sentencing New Zealand citizens, and it’s an injustice to the community at large, because if sentences aren’t effective in reducing a person’s risk of reoffending, then that plays out in community with further victims going forward.”
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
