STEPHANIE PALMER AGAINST THE WAIKATO TIMES

The Discussion

15. The Media Council will go through the various allegations following the layout of the article.  It has copies of the sentencing notes and the summary of facts, but not the cultural report.  This discussion is about the article and the references to the sentencing decision.  It does not deal with first-hand reporting of the cultural report which was not available to the reporter and is not before the Media Council, although comments about that report by the sentencing judge are of importance.
16. The article covers three areas.  First, it briefly deals with what happened in court at the sentencing, and later sets out details of the charges and some of the judge’s comments. Second, it discusses generally the use of s 27 reports.  The third thing it does is to set out Mr Seymour’s comments on the sentencing itself and the mother’s report, as well as describing the ACT policy in relation to s 27 reports, and its concerns about them. 

The headline

17. The headline Mum’s the Word – Violent Offender’s Mother Pens Court Cultural Report was said to be inaccurate.  However, after the play on words with the use of the word “mum” the headline is not inaccurate.  It correctly refers to a key aspect of the article, which is that it was a mother who had penned the cultural report.  Since it was the mother who had penned it, there was nothing inaccurate in the phrase “mum’s the word”.  It was a smart catchphrase to catch the reader’s eye.

The accuracy of the reporting of the sentencing notes

18. What was reported was the sentencing hearing of a defendant, where his mother had provided a s.27 report.  The judge began his sentencing of the defendant by recording that there was “an exceptional set of circumstances” where there had been earlier incidents caused by the defendant’s former partner’s behaviour. A jug had been thrown and in response the defendant had grabbed and squeezed his partner’s throat.  However, the judge was careful to point out this was not a case of strangulation as a part of a relationship of control and family violence. It was individual behaviour arising in unusual circumstances. The judge said he would not have sentenced the defendant to prison for this.
19. This was followed by the defendant’s former partner stopping the car and the judge said the defendant as a consequence “lost the plot” and was violent, punching his former partner to the face and body causing bruising and swelling and a cut to her bottom left lip.  The judge chose a starting point sentence of 15 months and one week’s imprisonment before going on to consider mitigating factors. He then went on to discuss what other mitigation might be available and referred to the cultural report prepared by the mother.
20. He noted she is a respected academic and worker within the justice sector, and in a section of his notes quoted in the article, he said that there is a large amount of material that is not relevant or appropriate in the report. He explains this by saying that “matters that seek to explain or discuss the offending and seek to go behind the facts cannot be taken into account. Matters that suggest in some way some culpability or misconduct by the police likewise are not relevant.”
21. This was the most critical statement he made about the report. Because it is important for our decision, we now set out two paragraphs and one sentence of the sentencing notes which refer to the mother’s s 27 report:

[16] What is relevant is matters relating to your whānau and the significant issues which have befallen your whānau over the years. Matters of relevance are your skills and your constructive community contributions and contributions to your whānau through your skills. It is plain that they place significant reliance upon you to be able to assist in ensuring the community and its continuation, and the sooner you are restored to the community, the sooner you can get on with that.

[17]. What is also clear, it would appear, is that you have work to go to and I have the offer of employment and I take that on board. It is also clear that there have been intercessions or mediations between you and the victim of the family violence to work out a way to care for the children. I am told that there is an application for a s 123B protection order and that will be granted. That is going to place a very clear expectation on you as to your behaviour going forward, and the nature of those interactions in that relationship.

[18] I have a pre-sentence report which is also of assistance.

22. The judge then went onto consider matters in the pre-sentencing report and submissions from the defendant’s counsel.
23. He then stated importantly:
    

    [20] When I take all those matters into account, I do think they are relevant to sentence. Whether it is by way of informing me about you and the likelihood that you can avoid offending, that you have stability going forward and there is a plan for you when you come out, or whether it is also informing me in some way of cultural matters, they are relevant and that is all, really, they need to be.

24. “Those matters” undoubtedly include the s 27 report.  The judge then proceeded to reduce the sentence by 15 percent to a sentence of 13 months’ imprisonment which would lead to the defendant’s release after five or six weeks, before Christmas.  Thus he placed weight on the s 27 report.
25. We do not accept the response from the Waikato Times that the story was about what the judge did, not what was in the report but not used.  The content of the s 27 report is referred to in the article over three paragraphs.  This analysis shows that the article was inaccurate and unfair in stating that “the [s 27] report didn’t seem to make a positive impression on [the judge].” The article was very much about the report and the assistance it gave to the judge. It is clear from the sentencing notes that while the s 27 report contained some irrelevant and inappropriate material, it did make a positive impression on the judge and indeed contributed to a significant reduction in the sentence.
26. The article was therefore inaccurate and unfair in giving a negative impression of the effect on the judge of the report, and its usefulness. The positive remarks that the judge made about the s 27 report and his reliance on it are largely ignored. This negative impression is compounded by the article immediately after the article’s limited account of what the judge said about the report, when it goes on to recount the worst aspects of the defendant’s behaviour, without sufficient reference to the more positive side of the offender and mitigating factors about the offence. The article did not record that the s 27 report in combination with the pre-sentence report had been stated to be relevant and had resulted in a change to the sentence. It did not record the judge saying in reliance on the s 27 report that the defendant had stability and a plan going forward for when he came out of prison.
27. We do not consider the small remark quoted from the judge in the article which was positive about the s 27 report ameliorated to a significant degree this overall misleading negative impression. We find the article’s description of the relevance and helpfulness of the report during the hearing to be inaccurate and unfair and will uphold the complaint on that ground

Unbalanced account of the defendant’s offending and personal circumstances

28. There is a duty on a publisher in reporting on court proceedings to offer a balanced report not just accentuating the bad or the good about what the judge says about the defendant’s actions.  Not everything has to be recounted, but a misleading impression should not be created.  In this sentencing the judge recorded a number of mitigating factors about the offending and the offender and reduced his sentence accordingly.  These positive aspects of what the judge said about the defendant’s actions and his character are hardly touched on in the article, despite very negative details of his actions being stated.  This was consistent with the tone of disparagement about the s 27 process.  The lack of any reference to the positive aspects of the offending and the offender save for a brief quote from the judge seems to us, unbalanced and unfair, we will uphold also on this basis.

General comment

29. The effect of these two inaccurate reports of the judge’s decision was to lend support to criticisms of the s 27 report process.  The indication is that in a situation of bad criminal offending a mother had given a s 27 sentencing report that had left a judge with a negative impression of the report. 
30. In fact, reading the decision objectively the opposite was the case.  The judge while he puts to one side parts of the report that are irrelevant or inappropriate, goes out of his way in the decision to rely on the report, and use information in it that he does regard as relevant in reducing the sentence.  He appears to have a far from negative impression of the report and its writer.  The Council has no view on the merits of s 27 reports, but if the full situation had been accurately set out, the Court decision might well have been read by some as an example of how informally prepared s 27 reports can help Courts in the sentencing process.
31. We now move to other aspects of the complaint, which was extensive, which we do not uphold.

Breach of privacy and damage to children

32. We do not accept the general contention in the complaint about it being unfortunate that the offending was revealed in the report and its negative effect on his children, his mother and other members of his family.
33. Newspapers are entitled to fully report what is said in court, providing accuracy and a fair balance is maintained.  Subject to that, there is no need for caution in reporting statements by the judge in a sentencing report.  The judge is familiar with the case, and their statements are a matter of public record.  It is highly desirable that statements made by judges in open Court which are of public interest are reported.  This is particularly so in sentencing, when the public are entitled to know the facts of criminal offending, and how that offending has been dealt with by the Police and the Courts.
34.  It is inevitable that when someone is convicted of a criminal charge, that there will be fallout on the wider family and whānau.  Innocent persons who have a close association with the defendant will end up embarrassed and disadvantaged. So far as the complaint objects to this aspect of the process and the article, we do not accept it. It is a general truism that the families of both victims and defendants are collateral damage in a court process.  The Media Council has repeatedly said that this cannot be regarded as a matter inhibiting newspapers covering court proceedings.  It is perfectly proper for court proceedings to be reported and this is to be encouraged as it is in the wider public interest, despite the damage it can do to a family.
35.  It is also to be noted that no suppression order was made by the judge, and indeed there is no reference in the materials to one being sought.  If the damage to third parties from publication is severe this can lead to the Court making a suppression order if the legal test is met. In the absence of a Court direction for suppression there is no restraint on publication of the details of offending or a sentencing process.
36. We agree with the Waikato Times’ observation that a sentencing can be seen as a final chapter in a criminal case.  There is less need to review the history of the trial, and the sentencing judge is the arbiter of the outcome of the hearing.  Previous events are largely irrelevant as guilt by this stage has been accepted and determined. The Council accepts that the reporter did not have available to him the actual cultural report and could not easily get this.  He has since applied for it under the Official Information Act but it was not provided, however Ms Palmer provided it to the Waikato Times after she contacted them.

The report on Mr Seymour’s views

37. Mr Seymour’s views on cultural reports have been widely publicised.  They have also been widely debated.  Articles have been published defending the use of the reports.  We regard this as a long-running issue, and in the context of this particular article, while it might have been better journalism for there to have been some reference to arguments in favour of cultural reports, there is in fact some short reference to a senior judge saying that they were useful.  Full balance was not required when reporting his comments.
38. The complaint states that the article was structured to escalate public outrage about the use of taxpayer funding of the cultural reports.  It may well have been that Mr Seymour was using that particular sentencing as a way of emphasising his opposition to the funding of s 27 reports, but he is openly questioning the funding of reports as a general political policy.  He cannot be blamed for the inaccurate reporting in the sentencing notes that we have referred to earlier.
39. We do not uphold this aspect of the complaint.

Payment for the report

40. The complaint says that the reporter should have found out whether the mother had been paid for the report (in fact she had not).  It would have been good reporting for the author of the article to have approached the lawyer acting for the defendant to ask whether the report had been paid for, given that this was to be a feature of the article.  The reporter did not do so.  However it may have been reasonable for the reporter to have assumed that the mother’s name and details about payment for the report would not have been revealed to him by the defendant’s lawyer, who was not acting for her.  We do not think that this failure is sufficient to warrant upholding the complaint.  The mother was unnamed and indeed had a different name from the defendant.  Even if she had been paid, it could not have been as if she had breached the law; it is not as if she was being accused of a crime or an immoral act. 
41.  The Waikato Times did indeed try to find out the name of the mother so she could be contacted but was unable to do so.  It is to be noted that six weeks after a request for the cultural report had been made, no report had arrived.  It could not be expected that the Waikato Times should have delayed a topical story waiting for a copy of the report. 
42. We do not uphold this aspect of the complaint.

Lack of balance

43. The Council has grappled with the complaint of lack of balance, a requirement under Media Council principle (1).  The article used the report of the sentence as context for Mr Seymour’s criticism of the s 27 report.  The mother was not approached and the cultural report was not examined.  The spectre of payment for the report was left unresolved, and a reader who had not read the article to the end may well have assumed that there was a payment for the report.  No supporter of such reports was quoted save for a reference to a High Court judge who had stated that they were helpful.
44. By a fine margin the Council does not uphold the complaint for lack of balance.  It would have been better practice to have gone further and found and quoted a supporter of the use of the reports.  However, the mother’s identity was not known, and this was an election issue about the use of s 27 reports where differing views had been published, and the article did not purport to be a general analysis of the issue.  Balance may not have been easy to find given the anonymity of the mother.  We are unable to conclude that there was a breach of principle 1 on this basis.

Other complaints

45. The complainant made the point that all the material in her report was based on objective material, and none of the information was provided by her son.  The statement in the article that the reports can include information given by the defendants themselves was a general statement, not related to this particular incident.  It is plain that the article is covering the use of cultural reports generally, as well as the particular sentencing.  The article does not contain a statement that the information in the report was obtained by the mother from her son. 
46. The complaint is also critical about the statement in the article that the culpability or misconduct of the police was irrelevant to the sentencing process.  However, this was a statement in fact made by the judge, and the Waikato Times was doing no more than quoting it.  There is also a suggestion in the complaint that the summary of facts was potentially inaccurate, but this was unsubstantiated, and the reporter cannot be blamed for accepting it, as indeed the judge did.
47. Any criticism of what the judge said or did should have been dealt with by way of appeal.  No complaint can be made about the report of that decision itself.   That decision, based on Court recorded convictions and based on certain facts, was a matter of record.  The complaint does rather extend to a general criticism of the sentencing process and the conduct of the police, and in this regard the newspaper cannot be held to be at fault in reporting what happened in Court (although we have found it was at fault in reporting that inaccurately) and in reporting Mr Seymour’s views about s 27 (that reporting not being inaccurate).
48. Ms Palmer complained that it was inaccurate for it to be said in the article that the defendant was trying to “shave” his sentence by use of the report.  She said that the defendant was not aware the report was being written and did not ask for it to be written.  However, he was present in court and the report was undoubtedly put forward in mitigation.  Indeed as we have said, it did result in the sentence being reduced.  It was and is reasonable to assume that the defendant knew that a report was being relied on by his lawyer in the absence of conclusive evidence to the contrary.
49. In the complaint it is asserted that there was nothing wrong with a mother writing a cultural report for a son, and that this is provided for in the legislation.  This is undoubtedly so, but this is not a basis for criticism of the Waikato Times because it does not express the opinion that a mother giving a report is wrong.  Rather it is Mr Seymour uses the fact to draw attention to his criticisms of the use of s 27.
50. It might not be widely expected that a mother would provide a report to the court under s 27, but there is no prohibition on this.  The Waikato Times does not say otherwise.  It puts forward the fact that a mother provided the report perhaps to provide a sympathetic context to Mr Seymour’s comment, but, if accurate, such a story was relevant and it was within editorial discretion to publish it.
51. The Council does not uphold a complaint based on Te Tiriti.  This was an article about a court case and s 27 and a politician’s view about the use of s 27.  A complaint to the Media Council is not the place to undertake a review of Te Tiriti and the Court processes or what is fair in Court and the merits of s 27.  The complaint asserts that the reporter was not culturally competent, but the Media Council cannot assess the cultural competence of a reporter, but rather looks at what is published through the lens of the Media Council principles, as we have done in this case. Therefore, despite the serious issues raised, we do not uphold this aspect of the complaint.
52. Ms Palmer complains that there was an omission to refer to the judge’s subsequent comments about her supporting other members of her whānau free of charge since 2021.  She says that this is important background information.  It might have been useful to have included that information but we do not see it is essential for fair reporting.  More importantly, we cannot find in the sentencing notes, any reference to the mother supporting other members of her whānau free of charge. Since it not in the sentencing notes, there can be no duty to report it, and we do not think there was a duty on the Waikato Times to investigate, positively or negatively, previous s 27 reports by the mother.
53. These other complaints are not upheld.

Decision

54. The complaint is upheld under Principle (1) because of inaccurate and unfair reporting of the sentencing decision. The judge’s comments about how the s 27 report has positively influenced his decision are largely ignored, and an unfair impression is given that the report was of little benefit. 
55. The complaint is also upheld on the basis of unfair reporting in setting out the negative aspects of what the judge did or said about the offending and the offender without referring to the positive aspects of what he said about the incidents and the defendant. 
56. It is not upheld for the reasons given in relation to other broader criticisms about the reporting of this criminal offending and the embarrassment and distress that results to family and children of the offender, or to criticisms about the Police conduct, the Court procedures, or the way the article or the system deals with Te Tiriti.

Council members considering the complaint were the Hon Raynor Asher (Chair), Tim Watkin, Scott Inglis, Marie Shroff, Richard Pamatatau, Rosemary Barraclough and Reina Vaai.