District and High Court judges have been ordering special reports on the backgrounds of mainly Māori and Pasifika offenders, apparently unaware the law did not allow them to.
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Information obtained by RNZ under the Official Information Act shows the Justice Ministry stopped paying for cultural reports in June last year after realising they were not publicly funded.
Cultural reports are prepared for judges before they sentence an offender and give insight into their personal, whānau and community background; sometimes resulting in a lesser sentence.
They fall under Section 27 of the Sentencing Act 2002, supplementing a standard pre-sentence report, and explain how someone came to commit a crime and how further offending could be prevented.
Judges and lawyers have realised how useful they can be and they have grown in popularity in recent years.
Pacific Lawyers' Association president Tania Sharkey said the funding cut, perceived by many as a cost-cutting measure, came as a shock.
"Halting that funding has far-reaching consequences for our community. I think as a legal profession we were just concerned because we know the benefits that those reports can have and the fact that the large overwhelming majority of our community can't afford those reports privately and not all are entitled to legal aid."
Cultural reports are done by experts who do not work for Corrections and can cost anywhere between $800 and $3000.
While they are fully funded in the Youth and Family Court, offenders in the adult courts have to either pay for the reports themselves or apply for an extension to their legal aid provision.
Despite this, judges in the district and High Courts have been ordering cultural reports and the Ministry of Justice has been paying.
Last July, the ministry wrote to Chief High Court Judge Justice Venning asking him to clarify why the reports were being ordered; stating they could not pay for them.
In a letter, Justice Venning responded that the Sentencing Act was clear and does not give judges the power to order cultural reports.
"My understanding is that Judges may have resorted to directing cultural reports under section 27 as some felt they were not receiving sufficient assistance about cultural information and related information from the standard pre-sentence reports under section 26," the letter read.
Judges stopped ordering reports in June last year but associate professor at AUT's law school, Khylee Quince, said they are badly needed because the pre-sentencing reports written by probation officers are not good enough.
"Probation officers who are writing reports should also basically have a fire lit under them to say 'do your job properly!'
"Fifty percent of all of the people you're seeing are Māori; what relevance is that to the fact that they're here and many of them are here year after year with really long patterns of offending and you don't mention any of that."
Having written more than a hundred cultural reports over the past three years, Ms Quince said the backdrop to a criminal's offending is almost always the same.
"These are people that have caused terrible harms to other people but I have yet to come across someone in that offending group that has not had horrific harms perpetrated on them too. The total Once Were Warriors background; that would be the standard story I hear from an offender, even if they're being sentenced for burglary."
Ms Quince wrote a cultural report that led to district court Judge Soana Moala reducing an offender's prison sentence by a third because of her Māori cultural background and deprivation.
The Solicitor-General appealed the sentencing decision to the High Court, where it was upheld by Justice Whata who found the recognition of deprivation helped to explain the offending rather than condoning it.
Judge Doogue has written to the Ministry of Justice asking for a law change so judges can order cultural reports.
