Martin van Beynen writes in The Press:
Lawyer James Rapley, representing Fabian Mika, has certainly stirred up a hornet’s nest in arguing that Maori offenders are entitled to an automatic consideration of the history of the Maori people when sentenced.
The Mika argument appears to be as follows:
– Sentencing is largely governed by the Sentencing Act. The relevant section says the court must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence.
– The court must recognise Mika’s Maori (cultural) background.
– The cultural background section of the Sentencing Act is partly designed to address the overrepresentation of Maori in the prison population (about 51 per cent).
– In Canada, under different legislation, the courts take account of the fact an offender is from an indigenous background.
– Maori should have a special status to recognise them as victims of colonialism, displacement, high unemployment, lower educational attainment and a higher level of incarceration.
– Maori are not entitled to an automatic reduction in penalty, but the court must take their Maori background into account in a meaningful way.
– Maori do not need to show a link between their cultural background and the offending. The devastating effects of the historic and systemic discrimination and deprivation of Maori and its intergenerational effects on Maori should be a given.
It looks very much like an argument ahead of its time.
Although it’s a carefully nuanced train of thought, the argument will no doubt be treated as advocating a penalty discount just for being Maori.
Which it is.
Sentencing took take account of an individual’s circumstances, but arguing that every Maori offender should get a reduced sentence due to colonialism is pretty insane.
If the Mika argument was put into practice, sentencing judges would have to start with a consideration of the offender’s ethnicity, a fairly tangled question in itself.
If Maori, the judge would then have to consider how generations of deprivation or dysfunction have shaped this individual.
Sentencing would become a lottery.
If the court makes allowances for being Maori, then red heads or left handers or gays might also have a valid case for special treatment.
Many will criticise such allowances as damaging the important principle of everyone being equal before the law.
And it would damage it massively.