Monday, 7 July 2014

Korotangi Paki – ‘Waiho mā te whakamā e patu – ‘Let Shame Be Your Punishment’


The media  discussion around the conditional discharge  of Korotangi Paki, son of King Tiheitia, has drawn both public anger, and  some useful public  discussion about the exercise of judicial discretion.  Korotangi Paki, 19, had previously pleaded guilty to charges of burglary, theft and drink driving, but was not convicted after his defence successfully argued that would ruin his chances of succeeding to the Kingitanga throne.  It brought back memories of my policing days when from time to time, young offenders were discharged without conviction on the grounds that a conviction would have adverse consequences on their future career and prospects.  Law students seemed particularly prone to causing minor destruction and mayhem, or drink driving. They were usually represented in Court  by highly competent and very expensive counsel, and much to the chagrin of the Police, were subsequently  discharged without conviction.  Some years later these young miscreants emerged as solid citizens, making both a positive contribution to society and lots of money, successfully representing the next generation of the legal profession who had fallen afoul of the law.  It brought home to me the virtues of ‘second chance’ redemption.

It wasn’t only law students.  Others of influence were able to mount compelling reasons why on this one occasion, the Court should exercise its mercy.  I recall the two sons of one of Wairarapa’s first families, being asked to leave Orisini’s Restaurant after becoming very drunk and disorderly.  They retaliated by rooting out the rose bushes that grew in the small garden outside the restaurant.  With the support of good legal advice, they were discharged without conviction, and went on to become venerated citizens who these days,  produce some of the country’s best wines – which I’m sure they never drink to excess.
 
Are Applications for Discharge without Conviction Common?

Section 106, ofthe Sentencing Act 2002 provides that If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction.  Some legal firms specialise in making S.106 applications on behalf of clients, and claim considerable success.  Guardian Chambers  for example say that: 

“Members of Guardian Chambers have literally made 100’s of discharge applications and have had outstanding success in avoiding criminal convictions for their clients which has meant they can honestly place a tick in the ‘no’ box next to the question “Have you ever had a criminal conviction?” whether it be contained in a travel document, a job application or any one of many applications that they make in the course of their lives.”

Liberty Law provides this piece of additional advice to its clients:

“It is essential to note that the court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  This test has been described by the Court of Appeal as “a gateway through which any discharge without conviction must pass.”

I don’t know how many offenders are successful in achieving a discharge without conviction, but by all accounts, it is a common practise.  All one needs is money and a lawyer.
 
Why all the fuss?
 
What makes this application different?  I don’t have access to the detailed argument submitted on Korotangi’s behalf, and it is always dangerous to comment on individual cases without it.  However, on the face of it there are three aspects of this case that make it both different and interesting.  First, that the offender is Māori.  While Māori are six times more likely to end up in prison that non-Māori, they are not six times more likely to make an  application for discharge without conviction.  The do not have the resources to do so. Visit your local District Court and note the extent to which Māori appear before the Court without legal representation.  

The graph below gives an indication of the differential treatment of Māori within the judicial system.  (1)  The dark blue portion represents the Maori population at 14% of the general popultion.  It then shows the over-representation of Maori at each stage of the judicial process.  

S
 
Second, Korotangi is not a typical first-time offender.  While his offending is fairly low-level,  his profile suggests that he is a troubled young man, who unless constrained will descend into a cycle of offending driven by alcohol dependency.














Third, he is the son of the King Tuheitia Paki, whose span of influence extends well beyond  Tainui iwi and the Kingitanga movement.   It is an influence which exceeds that of the wealthy parents of law students, and even possibly, Wairarapa’s first families
 
Public Reaction In Support of the Decision

Media Coverage on this issue was evenly balanced.  On NewstalkZB, Mike Hosking interviewed lawyer Annette Sykes,  who did an excellent job of explaining the reasons why the Judge’s decision was appropriate.  First, the three co-offenders had been previously sentenced and were discharged without conviction. In such cases, there needs to be equality of treatment.  Second, that ‘Marae Justice’ had already been dispensed i.e. Korotangi has had to make significant reparation, is required to address his alcohol problem, and must walk a long and difficult journey back to redemption.  He has brought the name of his father, and Tainui into serious disrepute.  The shame was not confined to the offender, but is now collectively experienced by the tribe.
 
Newstalk ZB's’s interview of law lecturer Kylee Quince confirmed the view that while he escaped without conviction, he did not escape punishment. As Kylee comments;

"His particular position is unusual but looking to someone's future life and career prospects, those are always things that a judge is able to and appropriately does take account of."

Public Reaction Against the Decision

The media reaction against Judge Phillipa Cunningham’s decision, was swift, and included criticism of Korotangi, the Judge, and disparaging remarks about the Kingitanga movement itself.  Whale Oil’s Cameron Slater referred to Korotangi as a ‘royal ratbag’, and  the influence of the ‘bro-racracy and Māori royalty’.  The decision ‘pandered to the sensitivities of fake royalty’ and Phillippa Cunningham has shown that she is a ‘dud judge’. 

In similar vein, at No Minister, The Veteran’s post  (which misspelt Korotangi’s Name) claimed that the  decision was ‘ favour based on colour of skin and supposed family status’..  Lindsay Mitchell in her blog ‘Māori Prince hides under Daddy’s Korowai’   took the unusual step of acknowledging her own conviction over drink driving at an early age, being fined and disqualified and commented that she was ‘deeply ashamed.  She explains:
   
“I got a drink/driving charge at a similar age. Just over the limit, fined $300 and disqualified for six months, I lost my job. I was deeply ashamed. It was a rock bottom point in my life but accepting the consequences turned me around.”  She takes the view that “his father should let him face the same fall-out as anyone else. Particularly that faced by many a less privileged Māori. Classism is alive and kicking within Māoridom.”

The Differential Impact of Public Shaming

The one aspect of this case, that distinguishes it from most s.106 applications, and one which
is not well understood, is the differential impact of shaming.  Lindsay’s final paragraph provides a useful platform from which to examine that issue more closely.
 
In early New Zealand, public sanctioning quickly became the norm.   Māori approved   the use of the stocks as punishment for theft and similar crimes.  Public punishments and the infliction of bodily pain were seen in some cases as culturally appropriate.  The death penalty was also seen to be appropriate for serious crime, with Chiefs demanding the right to kill in certain cases.   At the same time, there was tribal resistance to the imposition of severe sentences on chiefs or persons of significant mana.  So to that extent, Lindsay is right – the Māori expectation in the early days was that people of significance should not be subjected to indignity or disrespect – their mana would have been disproportionately undermined by that treatment. 

Public displays of punishment were moral degradation ceremonies in which the crowd played a key role in the renewal of community values through their recognition of the offender’s wrongdoing.(2) Public flogging was part of New Zealand’s early history, but was  abandoned by the 1860’s. While the criminal justice system steadily moved from the public infliction of pain, which was seen as degrading and counter- productive to reformation, the public were not prepared to surrender totally, its appetite for public shaming.

Public shaming also played an important part in Māori indigenous practise, and met the criteria for ‘reintegrative shaming’ as described by  Braithwaite.(2)   Māori have a number of proverbs about shame, which present the issue in a nuanced way and from different perspectives.  –“Waiho mā te whakamā e patu” “Let   Shame be Your Punishment”  acknowledged that public shaming within a tribal setting, was often sufficient to bring moral order to the community.  The second half of the  proverb,  “Waiho hai kōrero I a tātou kia atawhai ki te iwi.” Let us acquire fame by being merciful” honours and acknowledges the value of mercy and compassion and the status acquired by those who exercise it. 

There is a substantial ‘shaming’ literature, which identifies the impact of public shaming on reoffending.  The most effective public shaming occurs within tribal societies or communities with high social cohesion.  Public shaming of white collar criminals, normally law-abiding citizens (think Lindsay)  and organisational crime i.e. crimes of the powerful, have been shown to be effective.(3)

This research accords with my policing experience, in which I recall two incidents in which offenders came from closed, highly -cohesive communities.  The shaming impact in both cases was significant.  The first was a 15 year old Chinese boy, whose widowed mother was struggling to provide.  In his desire to avoid being the only boy at the school social wearing short pants, he shoplifted a pair of long trousers – and got caught.  The response from the Chinese community was both immediate and severe. Elders from the Chinese community visited me, not to ask for the exercise of Police discretion, but to assure me that they were taking measures of their own.   He was stood down as a youth leader, prohibited from attending Chinese social functions and required to work on community projects for the next two years.  The elders visited the department store with the young man, to render a formal apology, and provide reparation.  The Police administered a warning, secure in the knowledge that this young man was being held accountable to the people he had shamed. 

The second example involved a Tongan Police recruit, who on the night of his graduation got very drunk, and interfered with a police inquiry into a traffic accident outside a hotel.  He was on the verge of being arrested, but as the Senior Sergeant in charge, I decided to apply discretion, and instead, called a meeting with his fanau and church leaders the next day, to voice my displeasure at his behaviour.  I learnt subsequently that his uncles administered a beating of such severity that he spent the next week on his back.  By all accounts, he resumed his Police career, and made a solid contribution. 

In those examples, shaming had its place.  In Lindsay’s recounted experience, hers was a personal shame, but in addition was shared by those to whom she felt accountable.  However, the extent to which personal, family or tribal shaming becomes a matter of wide public knowledge has the potential to impact negatively on the offender.  Interestingly, Lindsay provided a link in her blog, to an incident involving Korotangi three years ago, when he crashed a car.  The disadvantage and downside of status and prestige, or being related to someone with those characteristics, means that incidents which normally would merit three lines in the local newspaper, suddenly become national news. 

Lindsay’s view is  that “Korotangi’s father should let him face the same fall-out as anyone else.  Particularly that faced by many a less privileged Māori.”

If there is one thing that is painfully clear, it is that the shaming of the powerless in the absence of  positive  reinforcement by the offender’s community has the opposite effect to that of offenders who live in cohesive and closely integrated communities.   Braithwaite and Drahos put  it this way: z 

“The problem with public shaming is that it leaps from that truth to policies that stigmatise and degrade. It is not simply that stigmatisation is a less effective way of making people feel ashamed of wrongdoing than reintegrative shaming; it actually makes them feel less ashamed. It is not that respectful disapproval within communities of care works while stigmatisation does not; stigmatisation actually increases crime.”(4)

On the basis of current ‘public shaming’ research,  the management of any situation in which either the victim or the defendant are, through widespread publicity, likely to be shamed in a way which stigmatises them and their family or whānau, should be subject to judicial management.  For low level marginalised offenders, widespread television coverage will only serve to further stigmatise and increase the likelihood of future reoffending. 

We have reached a situation todaywhen the practise of public shaming,  while  divorced from the public imposition of pain, is still practised.  The vast majority of New Zealanders no longer exist in tribal communities, including most Māori.  There are a handful of  small rural communities that enjoy a high level of social cohesion.   As the current research on inequality shows, we have become largely a society of ‘haves’ and ‘have-nots’ – but the practise of public shaming persists regardless ; and the responsibility for its exercise has shifted from the judiciary to the media. 

The Kingitanga Movement

Some of the commentators took the opportunity to ‘dismiss’ the Kingitanga as ‘ersatz royalty’.  On the contrary, it is a strongly cohesive.  The Kīngitanga parliament, the Kauhanganui, was established at Maungakawa about 1890, and today it’s 129 members, represent 65 Tainui marae.  Twenty six of those marae are Poukai marae which have been  regularly visited by the Māori King or Queen since the 1860’s.  Poukai hui host an annual circuit of visits by the king that includes feasting, cultural performances and tribal discussion.   The level of social cohesion is extraordinary, and the korero at those hui is to the point, hard hitting, at times ruthless.

It is those 65 marae to whom Korotangi will be accountable for his future behaviour.  Some of the marae personalities will compose waiata pao or ditties, about Korotangi.  The term ‘paopao’ means gossip, and many pao are gossip songs which treat the misfortunes of their subjects in very direct and often slanderous terms.  He may acquire a new nickname or two, perhaps addressed not directly to him, but about him.  I am surprised that former Minister of Māori Affairs and Ngapuhi kaumatua Dover Samuels chose to voice his disagreement with the decision through the Pākehā media, referring to the Judge as suffering from ‘cultural hypnosis’.  I would pay good money to hear Dover put his views at a Kingitanga Poukai, where the issue could be debated in accordance with tradition.  

Whakahoki Mauri - Restoring Community Balance

Through this process his father, whānau and community must share in his shame and indignity.  But overriding all that, will be a collective desire for Korotangi to take responsibility, be held accountable; safe in the knowledge that at all times he will have the support of all of Tainui in beating a difficult and lengthy path back to redemption. It will take strength and courage to accept that his actions have brought about shame.  Once this level of consciousness has been reached, restorative action can begin.  
 
Māori tradition also recognises that there is a point at which public shaming should stop.  This is found in the proverb “Kia ata akiaki I ahau, he kai ka mate kei te hara o te kaki” – 
“Dwell not on my faults, for the desire for food dies at the throat of sin.”  Continual censure can cause such shame that one can no longer eat and therefore can no longer make a contribution to the people.  After this there was only suicide or death. 

Let’s leave it  for Tainui and the Kingitanga to decide when the censure and shaming should stop.  In the process known as 'whakahoki mauri', the goal is to restore community peace and balance.  In that scenario, the healthy functioning of a community is measured by a collective sense of well-being, and extends beyond the aggregation of individual behaviour.  At that point community peace is restored.  

If we are committed to being ‘Smart on Crime’, why not consider
instead, the impact that public shaming has on those people who don’t live within a strong tribal construct, or isolated rural communities.  Those who are marginalised, and described as the ‘dark underclass’.  What is the impact of public shaming on that group?

Over the last twenty years, there has emerged a body of research, which is directed at developing strategies for ex-prisoners and offenders from marginalised communities to socially integrate back into the community(5) It is on this group that public shaming has adverse impacts  on the efforts of offenders to desist from crime, and make major changes in their lives.   Besides the legal implications of having a prior conviction, a conviction record poses an obstacle to reintegration (e.g. access to jobs, housing, education, loss of parental rights). The conviction record reinforces a criminal identity, is a major ground for social exclusion,  and makes it difficult to adopt a new identity, i.e. that of a ‘law abiding citizen’.(6)  
 The impact on Maori offenders is a particular concern, given that for Māori males born in 1975, it is estimated that 22 percent had a Corrections managed sentence before their 20th birthday, and 44 percent had a Corrections managed sentence by the age of 35.  

What will be the impact of a conviction on efforts to find a job, suitable housing, and deal with the significant stigmatisation faced by offenders and prisoners on release?  Where is the  balance between on the one hand, securing public safety, and on the other, ensuring the offenders who want to transform their lives, are not disadvantaged by public shaming and disclosure of their criminal history. 

The Government’s Better Public Service Reducing Crime and Reoffending is in our view, an outstanding initiative that has forced the Justice Sector to work collaboratively on projects directed at achieving some very aspirational goals.  A critical part of that policy is to safely integrate offenders into the community.(7)  This strategy could be the launching pad to reduce the impact of public shaming and stigmatising of offenders, and in doing so, reduce the reoffending rate. 

Now, that’s being Smart on Crime. 

References

(1)    Morrison, Bronwyn, Identifying and Responding to Bias in the Criminal Justice System: A Review of
         International and New Zealand Research, (Ministry of Justice, November 2007)
(2)   John M Beattie, Crime and the Courts in England (Princeton University Press, 1986) p. 469.
(3)  Braithwaite, John ‘Crime, Shame and Reintegration’ Cambridge University Press, New York 1989 p.81
(4)  Braithwaite, John and Peter Drahos,  Zero Tolerance, Naming and Shaming:  Is There a Case for it with Crimes of the Powerful?  Paper to Australian and New Zealand Society of Criminology Conference, 30 September, 1999, Perth. Portions of this paper appear in an earlier version in Global Business Regulation
(5)  Workman, Kim ‘The Social Integration of Maori Prisoners’,  A paper presented at the Deakin University Reintegration Puzzle Conference, Crowne Plaza Hotel, Auckland on the 22nd August 2013. http://www.rethinking.org.nz/assets/Maori%20and%20the%20CJS/130820_The_Social_Integration_of_Maori_Prisoners.pdf
(6)  Uggen, U., Mamza, J., Behrens, A. (2004) ’Less than the average citizen’: stigma, role transition and the civic reintegration of convicted felons, in Maruna,S. & Immarigeon,R. (eds) After Crime and Punishment.

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