Home Detention As An Alternative To Imprisonment And Its Extension Onto The Marae

Rawiri Rangitauira,

Chairman Te Runananganui o Te Arawa

Tena koutou katoa, konei te mihi atu ki a koutou ahakoa, no ngati Toa muri, ana tenei tangata I tae mai kua whakatau nga mihi ana ki a tatou mai te tatutanga mai o te hui no reira , kia ora koutou katoa.

E nga mana, e nga reo, e nga waka, tena koutou katoa. Tena koutou i runga i te ahuatanga o tatou huahua mate i hinga mai na i runga i o tatou marae maha o te motu, mai i te Hiku o te Ika tae noa ki to Upoko o te Ika, whakawhiti atu ki te Waka a Maui tae noa atu ki Wharekauri, Rakiura. E moe mai ra kei tua o te arai moe mai, moe mai moe mai ra.

Tena ano koutou Te Atiawa, Ngati Toa, Ngati Raukawa, i whakatau mai ki a matou, mai i te tatutanga mai o tenei whakaminenga o tatou. Tena ano koutou nga kaiwhakahaere o te hui hei apitihia aku mihi ki te tangata whenua kia koutou. Tena koutou katoa, otira,  tatou hurihuri to tatou whare, i haere tawhiti mai, tena koutou, tena tatou katoa.

Introduction

When I first heard of the "Home Detention" option it was a small article I read in a Sunday newspaper by a former District Police Commissioner and now an erstwhile parliamentarian who was Maori and represented Maori in parliament.  The article spoke in support of the bill introduced into parliament as an amendment to the Criminal Justice Act emphasising how it would allow (particularly Maori) offenders to remain in the community for rehabilitative reasons principally to stop reoffending.

I was quizzical as to how Home Detention could be properly used and whether or not in real terms it was going to make any difference to Maori conviction and imprisonment numbers.

As I understand the concept it is intended to physically bind a detainee to his/ or her home outside of which, the detainee is not permitted to go without formal authorisation.  The detainee is monitored and supervised particularly with regard to participating in rehabilitative programmes designed to help the detainee participate more fully in community life without any recidivism occurring.

The attraction of the home detention concept to me as a Maori is the potential for inclusion of  the convicted offender within his own whanau and community (where available) so that it permits an 'holistic' approach in helping the detainee by whanau and hapu members.

Maori have a holistic approach towards dealing with crises. Where tikanga are used to attain "restitution, compensation and rehabilitation by a consensus resolution of conflict. Moana Jackson described this within Maori law as:

"....an evolving process that punished wrongdoers, comforted victims, protected resources and sought harmony with and among [whanau] [hapu]and iwi .... People were not seen as isolated individuals but as interrelated parts of a communal whole...” 1

Therefore to have the offending party live in his/her own community lets the whanau, and where possible, the hapu, help. This is not seen as alien to Maori culture, law or philosophy.

Interestingly enough the bill seems to have been amended as a result of a legal interpretation2 given to the word "residence” in the bill by none other than the Chief Judge of the District Court to include marae, based on his view that it "would be open to judges to define the term residence to mean any place where persons reside as including a marae." 3

What does this all mean for Maori?  In terms of the history of marae-based diversion programmes it deserves reflection to see if "home detention" would fit.

As I am recorded as representing a certain iwi, I will limit my comments to experiences of the wakainga noting however that earlier presentations may have already discussed other marae-based programmes in their own areas or nationally, which may reveal a fuller picture of how successful these programmes have been.

Firstly, it would be remiss to expect that all the audience would be familiar with the terms used and what concepts are associated with those terms.  I will give my interpretation. Of some of them.

Marae - it is a place or places that are recognised as being a centre of Maori activity, comprising buildings, a certain area of land owned by Maori, within which the whanau, hapu, iwi and its members participate on a regular basis in events associated with the people or the area.  The physical dimensions are matched with metaphysical aspects that are joined to enact the protocols and ceremonies seen in such activities as tangihanga - where the dead are mourned.

The marae embraces within it the names of the ancestors that adorn both the meeting house (wharenui) and dining room (wharekai). In particular there is a linking of the marae to the ancestral base of its people, in the speech-making (whaikorero), the singing of waiata (kinaki) and the performing of the welcome call (karanga) on to the marae. The reciting of genealogy (whakapapa) ensures that their history remains a living part of that marae environment. All this is shared amongst themselves (thereby recognising and sustaining kinship (whanaungatanga) ties within) and beyond sub-tribal (hapu) or tribal (iwi) groups.

Within that sharing, it is necessary to provide and care (manaakitanga) for visitors (manuhiri), because this enhances the prestige (mana) of the marae people as tangata whenua and upholds their chieftainship (rangatiratanga).

Aspects of the marae are sacred (tapu) recognised not only in the usually well carved and decorated wharenui but also in the very simple lifting of the tapu (whakanoa) ceremony of passing water over the head after emerging from the wharenui.  Such aspects are common to all marae.

Usually the marae is located in its own community. Its members who live very close by provide the leaders, (both men and women), as well as the workers to ensure that activities are coordinated.  What happens well in front is because of the good work being done at the back ("Kia tika nga mahi a muri ka tika nga mahi a mua").  Some marae are serviced from afar as their communities have been forced to live elsewhere for employment. Other marae are multi- tribal, being based within a large urban area that serves a much wider community.

Some of these cultural aspects are very important to the discussion that follows and deserve further attention to enable the "outsider" to understand why marae may be good for diversion programmes.

Whanaungatanga

Essentially "whanaungatanga" revolves around kin relationships.  Today it is claimed that whanaungatanga extends to non-kin who are in friendly reciprocal relationships.  This concept relies on certain tikanga (customary or cultural aspects) being applied. They include pono (trust), tika (honesty) and aroha (compassion).  If these aspects are recognised as being essential to the kinship relationship then it can be seen that in the Maori world of

“collective sharing of decision-making tied to the community of whanau and hapu there is a need for the social obligations of reciprocity and responsibility to be practiced; as one would expect within any social group such as whanau, hapu or iwi.”

The expectations of a marae-based group involved with a marae diversion programme are that the individual will realise and accept what is involved with the code of reciprocity and responsibility which apply to the offender being treated as a whanau, hapu or iwi member.  To be honest, and trustworthy as well as compassionate is most important if the involvement of the kin group is to work.

Manaakitanga

The "looking after" principle upon which manaakitanga is based is firmly embedded in the customary roots of Maori culture.  This is the first expression of tikanga that an offender will experience in a very real sense.  It will be an important aspect of his involvement with the marae and its people which should not be taken for granted and abused if the diversion programme is to work.  To “provide for and care for” involves reciprocity and responsibility from both the individual detainee and the host group.

Probably there is an assumption that the physical dimensions of the marae define and limit the extent of a marae based programme.  However marae means people and it covers the concepts I have outlined, it involves whanau, hapu and iwi as functioning, interacting kin groups.  It involves an holistic approach to the way things are done.  Consequently such programmes may extend beyond the perimeters of the marae itself where those tikanga that I have espoused, still apply.  I believe this aspect is important when we consider whether or not Home Detention fits into the marae based diversion programme.

To digress a little. Here is an example of the interplay of tikanga in a crisis in my own family.  An aunt of mine who had married another from a local Arawa tribe and had 3 children to that husband absconded and entered into another marriage with a person from another outside tribe entirely.  The hapu of the first husband sought utu (reciprocal payment) from my father’s family.  They turned up at our marae in force and sought not only the usual taonga of cloaks, patu, stock and stores but also the full relinquishment of the care of the youngest child to the first husband's hapu and whanau.  In Maori terms it was done without question, but played out on the marae so that it became an integral part of the group ethic between the two hapu and their members that

(a)    the hara (wrongdoing) had been satisfied by the utu (including the handing over of the grandchild)

(b)     allowing the mana of the victim to be maintained (let alone that of the hapu and whanau) whilst at the same time

(c)    evoking the whanaungatanga ties by the 'adoption' of the child within the principle of manaakitanga of caring for that child.

Case Study

However I now return to my experience of two cases that centred around a marae-based diversion programme within my tribal area.  To set the scene.

Te Arawa is the waka and iwi name given to a confederation of tribes whose lands lie from an eastern sea border bounded by Papamoa and Matata and extend inland to Rotorua.  Although Tuwharetoa from Taupo is also of the Arawa canoe, they have established their own identity. Nevertheless they recognise a kinship and canoe relationship with the other Arawa tribes.

Te Arawa has a substantial home base population due principally to the availability of work in  principal industries of the area – forestry, tourism and farming.  Unlike other tribes the urban movement of its people was not so significant.

Having such a substantial population base has allowed for significant involvement of its people with their own marae to provide the leadership and the workers earlier referred to as necessary for a marae to work well.

It is therefore not surprising that there is such a large number of marae within the Arawa territory.  Significantly some 35 Marae are situated in the Rotorua Lakes District. 

Unfortunately I do not have any empirical evidence of Marae diversion programmes for criminal offenders for these Marae.  The cases I am to talk about relate to one of the marae linked with the major tribe to which I belong viz Ngati Whakaue.

Ngati Whakaue is based in Rotorua especially at Ohinemutu.  Its area of “domain” includes five marae.  One of those marae serves as “Te Whare Runanga o Te Arawa” where all important occasions affecting the whole of Te Arawa as a whole are hosted. The other marae serve no less important functions but are more whanau or hapu orientated.

The first case involved a young offender who belonged to Ngati Whakaue and whose predecessors had played significant roles in the development of Ngati Whakaue since the latter part of the last century when Rotorua was being developed as a tourist town.  His immediate family were also stalwarts of their local marae providing support when needed for functions held on the marae.  This young man was heading into deep trouble with the law having started off as a school truant, leading to petty criminal activity associated with property and alcohol related offences.  His repeat offending was heading him towards imprisonment.  The marae to which he belonged served the immediate community where he lived. It had established itself as providing

(a)    work-base training and employment programmes mainly through the PEP schemes

(b)     social service groups to assist people with social problems

(c)     kohanga reo and

(d)    and also located at the marae, there were art and cultural programmes.

The social services group at the marae, included a support group to help those facing difficulties because of criminal charges or family disputes, particularly over the custody of children.

The family of the offender sought the assistance of the group to steer him away from his criminal activity.  The marae group became involved with the justice system when they put together a programme based around the marae, where the offender would be placed under the supervision and care of the marae-based support group and participate in other marae-based activities.  The court accepted their involvement and directed the offender into their custody to effect and fulfil a programme with specific goal-outcomes before he was required to re-appear in court.

The programme involved his participation in a skill-based work programme designed to bring about a change in his lifestyle. Hopefully, his future work and social opportunities would be less limited.  From a punitive side, the marae people had him undertake menial tasks within the local community such as mowing lawns, painting, cleaning up marae buildings and the homes of elderly Maori who lived nearby. He was also sent to cut scrub on Mokoia Island.  His weekly routine also required him to participate in counselling sessions with the marae-based support group and members of his immediate family. His parents attended frequently, his siblings less often, and occasionally other members of his extended whanau.  At those sessions the discussions were open and frank, no punches were pulled.

His involvement within this marae support group as part of his programme proved to be an unqualified success.  He progressed beyond the initial 12 month period imposed by the judicial system.  He had not re-offended (a stated target), in that time and he has assumed roles of responsibility and leadership within the skill-base work programme. He was learning more about himself and where he fitted in to the cultural milieu of his hapu and iwi while opening up new lines of communication within his family and with his marae ‘elders’. This young man no longer finds himself fronting up to the law.  He is the ultimate example of a successful rehabilitation programme through the involvement of his whanau and hapu centred around his Marae.

The second case involved sexual offending where the dynamics of whanau and hapu involvement led to reconciliation amongst the offenders family through the marae and its support group.  The difficult issue involved sexual offending which had arisen out of allegations made in a different forum over a custody dispute that had arisen between the father (from the local marae and hapu) and the mother (from another tribe).

Notwithstanding an early reluctance to be involved with his tribal peers (many of whom he worked alongside at tribal hui) the offender soon accepted as progress his ability to talk things through openly and frankly, with his family present (including his elderly father and mother). He wanted to maintain contact with his children despite the serious allegations against him. This marae-based programme (offered on his own marae) was included within the sentencing process that the court adopted when he eventually faced criminal charges on the sexual offending.  The court was persuaded that with appropriate conditions and the supervision of the marae people involved, his sentence could be community based.

I do not know if these cases are representative nationally of how well marae-based diversion programmes work, but at least from within my own tribal group the success of these two cases in which I had some involvement, cannot be denied.

Within the cultural parameters briefly touched on earlier there is no doubt that marae-based diversion programmes can work.  With the proper approach and philosophy, they have contributed in solving crises in a harmonious and consensual way.  These are Maori approaches to dispute resolution. Having a basis of tikanga makes it almost foolproof. But perhaps we should not get too carried away, because the necessary resources to make these things happen, have to be provided. A fortunate side to the marae involved in the two cases I refer to was the existence of other programmes in education and work to give further assistance to offenders. These skill-based work programmes together with culture programmes all make this a ‘living’ marae, involving many of its hapu members in its day-to-day activities.

Having a group available to involve itself in supporting families and individuals in trouble is an aspect of this particular marae that ensured its success.  That group espoused tika, pono and aroha within its manaakitanga processes all set in an underlying tikanga of whanaungatanga and centred on a marae.  Not a marae but their marae.

Does Home Detention Fit a Marae-Based Diversion Programme?

The advent of home detention is praised for a number of aspects, highlighted by the Minister of Corrections the Hon. Clem Simich in the House when he said

“Home detainees who are in employment can continue to make a contribution to the economy, and pay reparation to their victims. Parents can continue to care for or financially support their children - unlike prison inmates, who have to pass these responsibilities and costs on to other family members or the state. Home detention is less costly than imprisonment, there will be a substantial investment in effective rehabilitation programmes, which should result in significant reductions in the rate of re-offending.’4

Cynically, the home detention option can be seen as being politically acceptable and fiscally expedient.  It provides an opportunity to spend less of the tax dollar on prison inmates while shifting the cost towards the community, placing the onus clearly on the community to bear the cost.

If this option is considered in a context acceptable to Maori that detention and rehabilitation within the offenders own community (particularly where it is based around a marae) then in Maori terms the inclusion of the offender within his whanau or hapu group offers a better alternative to the “retribution, revenge, deterrence and isolation” goals behind the criminal justice system that applies in New Zealand currently.

Ideally 'home detention' could if it were properly resourced and if it included in a marae-based diversion programme, could have greater benefit, for the offender and the community at large.  Principally however its inclusion would reflect the problem being dealt with within the community, and by Maori within whanau and at a hapu level associated with a marae.

If reflecting on the burgeoning increase in Maori in the negative statistics in all areas of New Zealand society (including high numbers of prisoners) then a different justice system (perhaps a Maori model) or at least a different approach within the existing system, might make inroads into these negatives.  However merely making in-roads may not be the long-term answer because on another level the assimilating of Maori concepts into a Western model leads to

“...a distinct danger that the meanings and values attached to Maori concepts when used in an iwi and hapu context will be distorted and amenable to manipulation by others when they are used in the official discourse of the state legal system.” 5

Maybe as Poananga indicated in her paper “Towards a Ngati Porou Justice System” 6 at a July 1998 Conference on Maori and Criminal Justice, co-option must be resisted. Her thesis was that the two systems of justice are culturally incompatible to the extent that if co-option does occur, then it will in the terms of the above quote, and nullifying the efficacy of tikanga.

Should war be declared on trying to assimilate Maori justice concepts within the monocultural justice system we have?  Certainly critics of this type of co-option or assimilation leave little doubt that it is not the answer at all as Tauri pointed out in his paper on “Family Group Conferencing and Indigenisation of New Zealand's Justice System”

“It should be remembered that we are relying on a neo-colonial state to dispense justice, when a central element of its historical development has been the disempowerment of its indigenous population. "7

Home detention places the offender within a fixed monitored area.  It is intended to allow the offender to remain within the community whilst at the same time permitting participation in rehabilitative programmes.

I would expect that both the Community Probation Service and the District Prison Board should have some discretion to allow the offender to apply for home detention. This could allow the offender to participate fully in any marae based programme, even though he will be shackled and monitored.

The Maori offender who is entitled to be considered for home detention in accordance with the criteria that are outlined in the bill should be given the benefit of detention within the wider context of his whanau and hapu based within a marae diversion programme.  This would allow his whanau and hapu to bring to bear the principal of Maori values (tikanga) to help the offender in serving his sentence in an environment which will have positive outcomes not unlike the cases I mentioned earlier.

Even the involvement of the victim espoused in a limited manner in the bill would be deemed an integral part of the marae-based home detention option where that was necessary.  Such an idea clearly fits within the holistic approach towards solving crises and would allow (in Maori values) for the healing to be complete, harmonious and consensual.  What is essential for the home detention option to work for Maori is the absolute necessity for Maori values to be applied. Both the offender and the justice system must abide by these otherwise the chances of success for Maori under this option may be minimised.

No reira

Ko te pae tawhiti whaia kia tata. Ko te pae tata whakamaua kia tina.

He ohaki tenei mo te tirohanga atu whakamua.  Ahakoa he ao huhuri tenei me taea ai e tatou ki te pumau i te kiko o te ao marama hei painga mo tatou.

Ko te kiko o te ao marama no nehera i hanga ai no nga Rangituhaha.  He maha ona ahua ka kitea ketia i roto i te mauri, te tapu, te wehi, te mana, te ihi, te whatumanawa, te hinengaro, te ngakau, te pumanawa, te auahatanga, ka haere ngatahi te tinana me te wairua o te tangata.

Ka whanau noa ko tona ao ko te ao Maori o tona marae me ona nei tikanga o te whanaungatanga me te manaakitanga karekau he mea e tu atu i enei. Ko tona pae tawhiti ko te hoki mai o te rangatiratanga ki te iwi Maori. Ko tona pae tata ko te whakauru o ona nei hua ki roto i te ao o iwi ke hei pou mona.8

In conclusion the seeking of recognition of Maori sovereignty (rangatiratanga) has included the call for a separate Maori criminal justice system as far back as 1988 when Moana Jackson's “He Whaipaanga Hou” Government commissioned report was released to a largely unsuspecting New Zealand public.  It perhaps did not deserve the fate it received at the hands of the then Labour Government but it has since been a beacon for some radical change to the justice system. It's message is about self determination.  That is the horizon in the distance.

The changes that are occurring within the criminal justice system in respect of Maori can cynically be described as piecemeal and as mentioned earlier the follow up of co-option and tikanga tampering. However some communities have accepted these changes to help Maori in trouble and in need.  Dealing with those issues by intertwining the spiritual qualities of mauri, tapu, wehi, mana and ihi within an environment, the marae, allows the horizons nearby to be dealt with.  Within a Maori based diversion programme then home detention may deserve a chance.