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Is NZ’s justice system unfair to Maori?

Myth-busting some popular critiques.

The following two pictures have been used to support the conclusion that New Zealand’s judicial system is racist or have an unfair bias against Maori. However, these pictures do not support this conclusion, for they only raise certain similarities, and not the significant differences. They deceptively give the casual observer the impression that the only difference is the ethnicity of criminals in each case.

It turns out there are indeed significant differences in each case. For Le Roux and Kawhena the differences include;

What in the table above was significant for the sentencing of each person I am not qualified to speculate. There may be other significant differences that are not listed here. I am however able to see that though they were found guilty of the same crime, the circumstances of each crime were incredibly different, his offences more numerous and greater in callousness and indifference than hers.[1]

The second picture featuring Candice Preston with husband Philip Walker and below a smiling Leigh Anne Sammons with husband. Are there significant differences between these two cases which would effect their sentences?

The answer is, again, yes. The main difference was Preston was guilty of benefit fraud, while Sammons was guilty of tax fraud. There were other differences. [2]

While accusations of racially biased sentencing fly, its worth nothing that discounts to Preston’s sentence for personal circumstances and guilty pleas were already applied, reaching an outcome that might be viewed as “overly generous,” said Judge David Ruth.[3]

But was their difference in ethnicity a factor in their sentencing? Leigh Anne Sammons received a sentence commensurate to others found guilty of tax fraud.[4] If fact, her case was used as an example on the inequality—not of racially-biased sentencing—but of tax fraud sentences when compared to welfare fraud sentences. For some reason society takes a dimmer view of those who adopt a “social welfare lifestyle” than white-collar tax evaders.

A news article from Victoria University of Wellington, “The hypocrisy of NZ’s approach to fraud,” says,

“We have a Sentencing Act that outlines aggravating and mitigating factors that should be taken into account when determining a sentence. The same factors apply for tax or welfare fraud. One factor is particularly relevant for fraud: the extent of the loss, damage or harm resulting from the offence. This factor should produce a more serious sentence for a higher level of financial crime — but we typically don’t see this when tax fraud and benefit fraud are compared.”

It concludes;

“In a fair society where people are treated equally, we need our justice system to deliver fair, transparent and equivalent sentences to equivalent crimes.”[5]

So the picture comparing Candice Preston and Leigh Anne Sammons is not an example of privileges accruing to race or ethnicity, nor subconscious biases playing themselves out in our judicial system, but of the inequality of sentencing for one type of crime to another.

Because there are significant differences between the cases which are being compared, it stands to reason that the one posting these in support of the false conclusion is guilty of race-baiting and culpable for sowing disunity.

What about NZ’s prison population?

A recent interviewer emphasised the over-representation (51%) of Maori in NZ’s prison population as evidence for institutional racism, unconscious biases and the lasting effects of colonialism.[6] This is often underscored by the fact that Maori constitute only 12% of NZ’s overall population. In fairness, it is an extraordinary statistic, and one I think we can all agree we would like to see decreased.

We must note here that institutional racism in this context would be where the laws of the institute (New Zealand) specifically call for or result in harsher or more frequent sentencing of an ethnic group (Maori). We do not have this in NZ. What about non-institutional racism, such as biases (conscious or unconscious), of judges for instance, that result in the same?

Notice how the principle, “that a correlation indicates a cause” is implicitly granted when the comparison is given. What else could explain such disproportionate representation if not for the prepared narrative of racial inequality? Note also that if this principle is accepted, it must also be reasonable to grant “that the greater the correlation the greater the cause.”

Let’s be clear. Correlation does not equal causation. But it may indicate one. The probability of something being a causal factor is strong when there is a high correlation within a population group, and even stronger when the inverse is true of an overall population. So for instance, what we are looking for is some distinguishing mark that a high percentage of prisoners and a low percentage of the non-prisoners share. The wider the gap, the more likely this was the cause. Are there any such factors?

Yes. Male prisoners 93.2%,[7] Males in overall population 50%. A disparity of 43.2%, two percentage points greater than the disparity of Maori prisoners to the overall Maori population.

But is it really fair to say that males are a persecuted class? Could it be that males are just more physically violent than women? (Violent and sexual crime accounting for nearly 60% of all inmates.)

We could we run the same experiment for other factors, such as drug abuse and excessive alcohol use for instance, or the absence of fathers in the home during a child’s formative years, but statistics for these are difficult to obtain. Could they have a greater correlation than ethnicity or gender? Perhaps.

However, there is one factor where the correlation numbers are easy to obtain, and have an unbeatably wide disparity. 99.9% of the prison population have this trademark in common, and it is shared by only a very small percentage in the non-prison population. What is it?

Crime.

The numbers speak. Criminals are being persecuted by the justice system. Surprising, I know. The greatest cause of sentencing (fair or unfair) is whether the individual committed the crime.

Conclusion

The above does not show that the criminal justice system does not suffer the effects of racial bias. It does show that these pictures and the oft cited statistics of Maori prisoner’s don’t prove it.

Footnotes:

  1. Newshub, “Rouxle Le Roux: Social media posts claim ‘privilege’ at play in sentencing,” 16 Dec 2018, Cited 22 February 2020, Online: https://www.newshub.co.nz/home/new-zealand/2018/12/rouxle-le-roux-social-media-posts-claim-privilege-at-play-in-sentencing.html
  2. For Preston see Stuff, “Husband and wife sentenced for one of NZ’s ‘highest ranking’ benefit frauds,” 28 April 2017, Cited 22 February 2020, Online: https://www.stuff.co.nz/national/crime/91956845/husband-and-wife-sentenced-for-one-of-nzs-highest-ranking-benefit-frauds;
  3. For Sammons see Stuff, “Tax agent fraudster loses name suppression,” 01 May 2017, Cited 22 February 2020, Online: https://www.stuff.co.nz/national/crime/92076076/tax-agent-fraudster-loses-name-suppression
  4. Also Preston’s husband Phillip Walker, who introduced Preston to the “social welfare lifestyle,” was sentenced to nine months’ home detention for defrauding the ministry of $84,915 over the same time period, and ordered to pay reparation of $10,000 at a rate of $40 a week.
  5. IRD News, “Tax case sentences in the courts for the end of 2019“ Cited 22 Feb 2020, Online: https://media.ird.govt.nz/articles/tax-case-sentences-in-the-courts-for-the-end-of-2019/
  6. Victoria University of Wellington, “The hypocrisy of NZ’s approach to fraud,“ 3 May 2007, Cited Online 22 February 2020, Online: https://www.wgtn.ac.nz/news/2017/05/the-hypocrisy-of-nzs-approach-to-fraud
  7. Te Ao with Moana, “Māori Council and Hobson’s Pledge go head to head” 11 February 2020, Cited 22 February 2020, Online: https://www.facebook.com/watch/?v=2641348936094430
  8. Corrections Department, “Prison facts and statistics – December 2019” Cited 23 February 2020, Online: https://www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_statistics/prison_stats_december_2019

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