CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 24, 2023

Harvey on Background Information at Sentencing

David John Harvey has posted Background Information and Section 27 Reports for Sentencing – R v Berkland in the Supreme Court on SSRN. Here is the abstract:

Background information is essential when it comes to sentencing offenders. Without such information it is rarely possible to ascertain the drivers for offending, the level of offender agency or the prospects of success of rehabilitative interventions (if any).

In the past background information in New Zealand sentencing has been acquired from reports prepared by the Department of Corrections occasionally from specialist medical or psychiatric reports and from information that is provided by Counsel.

From as far back as 1985 there has been provision in legislation for the availability of material about the background or the cultural history of an offender which may have an impact upon sentencing. These provisions were little used until the middle of the second decade of the 21st Century and were highlighted in the High Court case of Solicitor-General v Heta . Thereafter the provision of background material in the form of background or “cultural” reports has become widespread. The use of background information for serious methamphetamine sentencing was addressed in the case of Zhang v R and the issue of the connection between background material and the offending for which a defendant was being sentenced was considered by the Court of Appeal in R v Carr . Despite these considerations there appeared to be a certain disparity of treatment of background information by sentencing Courts.

The Supreme Court in the cases of Berkland v R and Harding v R considered several issues surrounding sentencing for serious offending and addressed the way in which background material may be considered, endorse the test for causation in R v Carr and gave consideration to how the level of connection should be assessed. It discussed the sources of background information that may be presented to the Court and the variety of ways in which this might be done. Importantly, the Court indicated that there may be a number of background factors that could be evaluated for the purposes of sentencing.

This article examines the Supreme Court judgements in Berkland, focusing upon the dicta of the Court surrounding the use and evaluation of background material. It considers the framework that is outlined by the Court and suggests that the Court could have gone further in articulating the way in which the material should be evaluated for the purposes of assessing any available discounts.

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