Neil Sands
Changes that limit the amount of background information about offenders that can be included in the alcohol and other drug (AOD) reports that judges consider when sentencing have been slammed as “short-sighted” and “misguided” by front-line lawyers and addiction counsellors.
The reforms will introduce a template for AOD reports that is designed to ensure the information given to judges is consistent and focuses on key points needed to support sentencing decisions.
“The Approved Alcohol and Other Drug (AOD) Report Writers Service has been introduced to improve the consistency, quality and cost-effectiveness of AOD reports,” Ministry of Justice acting group manager of commissioning and service improvement Lance Harrison said.
In a statement to LawNews, Harrison sought to ease concerns that the changes will curtail the information contained in the reports.
“The ministry is not excluding an offender’s background information from alcohol and other drug (AOD) reports used for sentencing… Approved AOD report writers will continue to be able to exercise their professional discretion about the information they choose to include in the report, as they hold the relevant expertise,” he said.
However, his remarks seemingly contradict MoJ guidance contained in the template for the new report, which states that background information “should be brief and include participant’s living arrangements, employment status and other relevant information.
“The report should not include information on personal, family, whānau, community and cultural background,” the guidance says.
Harrison said the guidance was “indicative only” and background information could still be included “provided it was directly relevant to the offender’s AOD current and/or past use”, although this is not clearly spelled out on either the template itself or a Q&A page about the changes prepared by the MoJ.
Personal background information will remain available to judges through other avenues, such as oral submissions or privately funded reports.
However, critics dispute this and say judges risk missing out on information they are legally required to receive under the Sentencing Act and which plays a vital role in assessing an offender’s prospects of rehabilitation and avoiding re-offending.
Julie Anne Kincade KC
“It’s impossible, in my opinion, to extricate the causes of addiction from a person’s home, family and cultural background,” said leading criminal defence barrister Julie-Anne Kincade KC.
“Every person is unique, their background is unique. What the ministry is trying to do is have this one-size-fits-all, very basic information being given to the court and it’s simply inadequate.
“It’s also short sighted… it could impact detrimentally on the court being able to pass an appropriate sentence which leads to the person being rehabilitated and not re-offending. That’s why all the [legal] practitioners and all the report writers are frustrated.”
‘Almost guaranteed to fail’
Addiction counsellor Roger Brooking said he had written thousands of AOD reports over the past 20 years and 90% of the cases he had dealt with involved background factors that had contributed to addiction and subsequent offending, including childhood trauma, mental health issues and parental substance abuse.
“When it comes to making recommendations to a judge… if you don’t include, for instance, that this person has post-traumatic stress disorder and was diagnosed with ADHD at the age of five, then the judge might try to steer them into a rehab centre, the rehab centre won’t know the background information because it wasn’t in the report, so the treatment for their alcohol and drug problem is almost guaranteed to fail.”
Brooking conceded there were flaws in the system, which he believes prompted the reforms, involving unscrupulous, unqualified report writers who were gaming the system.
He said AOD reports ordered by the courts had to be written by qualified practitioners, but this did not apply to reports ordered by lawyers on behalf of their clients.
“Some dubious individuals out there in the community figured out that legal aid was a way to make money, so they connected with prisoners and said, ‘I can provide an alcohol and drug assessment for you’.
“The prisoner then tells their lawyer, ‘can we use so-and-so to do this, the dodgy assessor sends a quote to the lawyer for $3,000 or more, and the lawyer, not knowing that this person is not actually qualified, sends that quote off to legal aid, and it gets approved because it came from a lawyer.
“So there were some dodgy people providing dodgy assessments who didn’t know what they were doing. And as far as I’ve been able to gather, this was the reason they decided to revamp the entire system.”
Brooking said removing background information from AOD reports was not the way to address the issue.
The MoJ website says that under the new system, all AOD report writers must be recognised by the Addiction Practitioners Association Aotearoa New Zealand (DAPAANZ) and be registered with one of the professional organisations representing the field.
Fait accompli
The MoJ website said it had informed key stakeholders about the impending changes, adding: “Feedback is welcome as we will periodically review the service.”
Harrison said: “In 2025, the ministry consulted with members of the judiciary, Addiction Practitioners Association Aotearoa New Zealand (DAPAANZ) and members of the legal profession on the AOD report template.
However, both Kincade and Brooking questioned whether there had been meaningful consultation and called for the MoJ to reconsider.
“It was a total surprise to me. I was not informed and was entirely unaware that the ministry was considering this,” Brooking said, “It appears to be a total fait accompli. They are not open to any suggestions that they might have got it wrong or suggestions on how to do it better.”
Kincade, convenor of The Law Association’s Criminal Law Committee and a former association vice-president, said she was not made aware of any discussions about the changes before the MoJ announced them.
“I sit across many meetings and I’m aware of other members of the profession that attend meetings. The people I’ve spoken to don’t know who was consulted. I’d invite any member of the profession who was consulted to identify themselves, because we don’t know who it was done with and how it was done and when it was done.”
She suggested that if the motive behind the change was to reduce costs, then it would prove a false economy.
“While I can understand there’s an aspiration to save money from the legal aid budget…and it might save money in the short term, what is that saving worth if it costs more to the Corrections budget to keep people in jail, put them back in jail, and to the police budget, where people still have to be re-arrested because they’re re-offending?
“Overall, it’s not a cost-saving measure. It’s short-sighted and not well thought through.”
Case studies
The new reports can include limited background information but guidelines say it must be “brief, relevant information about the participant, such as their living arrangements, employment status and any other information the approved report writer considers relevant”.
Currently, reports go into far more depth about the offender’s background in order to give the sentencing judge a full picture of the context around their offending.
One lawyer, who did not want to be named, cited the case of an offender involved in a violent attack who underwent an AOD assessment before sentencing.
During the process, he revealed he had been hearing voices for years and was self-medicating with methamphetamine. He was subsequently diagnosed with schizophrenia, a condition the judge took into account at sentencing, but which would have remained undiagnosed if his background was not examined for the AOD report.
Another case involved a young man on drug dealing charges who came from a refugee background, growing up in a single-parent household with a mentally ill, alcoholic mother who abused him.
Exposed to gangs from an early age and with no family support in New Zealand, he struggled to cope at school and eventually left at around 15 after being hit in a traffic accident that left him with severe headaches and a leg injury that meant he could not walk properly for a year.
Addictions to meth, alcohol, and cannabis spiralled and the man turned to drug dealing, in part to financially support his mother, whose difficulties raising him with bipolar disorder were a major contributor to the development of his own addictive behaviour, according to the AOD report.
It concluded that the man’s rehabilitation prospects were positive, as he was deeply remorseful, engaging in recovery programmes, motivated to create a stable life with his partner and two children, and was avoiding potential triggers, such as contact with his mother.
“It’s impossible to isolate the causes of addiction, which led to the offending, from a person’s home, family and cultural background,” the lawyer said.
“In a case like this, the judge needs to be able to understand the whole life of the person in order to be able to sentence them properly and appropriately.”
“That can’t be done without looking at their background.”
An MoJ question and answer factsheet on the changes is available here: Procurement questions and answers | New Zealand Ministry of Justice
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