Section 27 Reports: A Year Without Funding
BY LUCY RADICH
Introduction
On March 21, 2024, the Legal Services Amendment Act 2024 came into force. One feature of the act was removing legal aid funding for Section 27 reports. The aim, according to the government, was to extinguish what Minister of Justice Paul Goldsmith described as a "cottage industry," "costing the taxpayers millions with no benefits to the real victims of crime."[1] There are varying views on this position, some supporting the defunding and others concerned about its impacts on specific communities. It has been over a year since the government stopped funding reports—so what exactly have they achieved? We contacted several defence lawyers and legal professionals to understand how these changes are occurring on the ground.
What is an s 27 report?
Section 27 of the Sentencing Act 2002 enables offenders to provide background information relevant to their offending at sentencing. The Supreme Court in Berkland v R adopted a “causative contribution” standard, an inclusive approach that encompasses factors such as mental illness, addiction, historical dispossession, or limited education.[2] Where these factors explain how the offender came to offend, they will amount to causative contribution and be relevant for sentencing.[3] Key considerations like these help judges understand who an offender is and their prospects for reintegration, leading to more rehabilitative sentencing outcomes tailored to the individual.
This information was typically delivered as a written report, making it easy for the court to digest. Before the removal of funding, defence counsel could engage a professional report writer to produce the report, which legal aid would cover.
Initial Reactions to the Defunding
Section 27 was originally intended to address the over-representation of Māori in prison and to encourage greater use of alternatives to imprisonment.[4] The withdrawal of funding threatened to undermine this purpose and disproportionately affect Māori, who already face systemic inequities in the justice system. Offenders with histories of trauma and social deprivation would also be affected, as Zhang v R highlights that s 27 reports are available to all offenders, regardless of ethnicity.[5] Essentially, only those able to fund a section 27 report privately would receive this form of representation in court. Law Society President Frazer Barton flagged that this was a significant breach of fundamental rights.[6]
There was also concern that removing legal aid went “much further than declining a report writer’s fee for disbursement.”[7] For example, family members couldn’t claim travel costs as disbursements to attend court and speak at sentencing. Any legal aid funding for a disbursement associated with the provision of an s 27 report or s 27 evidence would be denied. An even bigger problem arises if a person has no friends or family to speak on their behalf, a common issue for offenders who grew up without a support system.[8]
Some warned that removing funding could result in increased costs and longer hearings. Since lawyers still have an obligation to put all relevant information about an offender’s background before the court, some may bear the costs of preparing the reports themselves. Lawyers would also need to look elsewhere to obtain important information, such as from drug counsellors, psychiatrists, social workers, or medical notes.[9]
Conversely, there was support for the de-funding. One reason was the excessive rise in report writer fees, with some charging $3,000 to $5,000 per report. Figures released by the Ministry of Justice showed the cost of funding equated to $55.91m between July 1, 2021, and June 30, 2022.[10] National asserted that the money used for funding the reports should be directed to the victims of crime, helping them get access to counselling and financial assistance. ACT party leader David Seymour proposed scrapping them altogether, contending they had led to “massively reduced sentences.”[11] However, these claims are disputed. Evidence shows that 77% of people in prison have themselves been victims of violent crime, suggesting many eligible for section 27 reports are also victims.[12] Reports also do not guarantee sentence reductions; they require a proven link between background and offending, and judges weigh factors such as deterrence and community protection against sentence mitigation.[13] A recent 40% cap on personal mitigating factors further prevents the possibility of “massively reduced sentences.”[14]
Feedback from Lawyers
We sought input from several lawyers to assess whether concerns about the defunding of section 27 reports have materialised. In providing thoughts on the topic, responders talked about the impact of defunding on rehabilitation. Rachael Reed, KC, raised concerns that "Reports are required to ensure that the court understands, and may target a sentence, to the offender. Without them, judges are unable to tailor a sentence to an offender’s rehabilitative needs."[15] She also supported the proposition that the government should reinstate funding but stated, "funding should be limited with a maximum fee for a report." This comment highlights two critical points: first, that without reports, offenders are denied more suitable sentencing outcomes; and second, that the costs of reports were excessive. Setting a maximum fee could ensure section 27 reports are accessible to all offenders, while keeping report costs in check.
Barrister Kingi Snelgar commented, "It relies on counsel to do more work to obtain cultural evidence and present it. This is difficult with the legal aid constraints. Some judges are also reluctant to hear cultural evidence unless it is from an independent report writer, which causes difficulties."[16] This observation reinforces earlier concerns about increased workloads of lawyers who must prepare the cultural information themselves and how judges may overlook background information if someone cannot privately fund a report.
Defence Lawyer Marie Dyhrberg, KC, also addressed funding concerns, saying, "Cultural reports are unique in that they link a person's cultural background with sources of offending, allowing courts and Probation to more effectively target rehabilitation programmes and resources. Unless such reports are privately funded, many defendants are denied access to more effective programmes."[17]
On the other hand, some lawyers pointed out that there were existing issues with the reports prior to the removal of funding. Lawyer Karl Trotter stated, "Many of the 27 Reports I have seen are of low quality and amount to little more than self-reports. Many reports impress as little more than a copy of an earlier (unrelated) report on another client. Report quality is an issue."[18]
Conclusion
This feedback highlighted the complexity of the topic and the different issues it raises. Section 27 Reports are crucial to our sentencing process and ensuring judges meet rehabilitative needs. Without funding, there is a genuine concern that sentences are not being appropriately tailored, contributing to rising incarceration rates and over-representation of specific communities. Reinstatement of funding is a necessary step in ensuring effective sentencing outcomes; however, some policy considerations are worth assessing, such as report quality and costs.
[1] Paul Goldsmith “Section 27 reports returning to original purpose” (press release, 6 March 2024).
[2] Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 .
[3] Berkland (SC), above n 2, at 109.
[4] Ministry of Justice Regulatory Impact Statement: Removing taxpayer funding for reports under section 27 of the Sentencing Act 2002 (7 December 2023) at 6–7.
[5] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
[6] New Zealand Law Society “Access to Justice Impacted by Proposed Repeal of Sentencing Report Funding” (8 February 2024) <lawsociety.org.nz>.
[7] David Harvey “How to get background info for sentencing once funding is cut” (15 March 2024) The Law Association of New Zealand <thelawassociation.nz>.
[8] Sarah Curtis “Cultural reports can mean big discounts off an offender's sentence - but are they really needed?” The New Zealand Herald (online ed, Auckland, 29 October 2022).
[9] Kris Gledhill “Courts change without cultural reports” (16 February 2024) AUT News <aut.ac.nz>.
[10] Deena Coster “Cultural reports cost nearly double since 2020, with bill topping $5.9m” (24 August 2022) Stuff <stuff.co.nz>
[11] ACT Party “ACT would remove cultural background reports for sentencing” (press release, 19 September 2022).
[12] Ministry of Justice “Key Initiatives” Ministry of Justice | New Zealand <justice.govt.nz>
[13] Bayley Kalach “Section 27 Past, Present and Future Potential: A Critical Evaluation of s 27 Cultural Reports and Discounts in Sentencing” (2023) 10 PLJNZ 57 at 63.
[14] Paul Goldsmith “Tougher sentences coming for criminals” (press release, 26 June 2024).
[15] Interview with Rachael Reed, Defence Lawyer (Lucy Radich, 10 June, 2025).
[16] Interview with Kingi Snelgar, Barrister (Lucy Radich, 11 June, 2025).
[17] Interview with Marie Dhyberg, Defence Lawyer (Lucy Radich,10 June, 2025).
[18] Interview with Karl Trotter, Barrister (Lucy Radich, 26 June, 2025).
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