Hard News by Russell Brown

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Hard News: Judicial caprice is no way to pursue law and order

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  • Katharine Moody, in reply to David Tong,

    I cannot see any way to reform the criminal (or civil) justice system(s) that would stop the lawyers dealing with it day in, day out from becoming a bit desensitised and detached.

    For starters, surely the judiciary itself could require that cellphones and iPads be turned off while court is in session? I doubt that surgeons whilst in theater are on-line to outside demands on their time and expertise.

    Not having worked in the legal profession, I can't relate to this problem of "desensitisation". I trained as a nurse and never found myself detached from the pain and suffering; joy and loss of my clients/patients.

    That said, I'm still very jealous - I'd love to have trained/qualified to work in community law. Well done hope you find it really fulfilling.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Rosemary McDonald, in reply to Steve Barnes,

    There is no record of this in the local papers, even though we know the date of the offence, there is nothing about the crime or the prosecution of the culprits.

    Something very, very fishy about that.

    Conspicuous by absence.

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Rosemary McDonald, in reply to Rosemary McDonald,

    http://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11408241

    Three Kaikohe men have since been jailed for their part in the attack.

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Katharine Moody, in reply to Steve Barnes,

    Good grief, so many kinds of wtf there, picket Parliament yes, law firms do not make the law, parliament does.
    Email your MP or the MP for that constituency. You have a choice of two, Kelvin Davis or Winston Peters.

    Yeah, but if I picket Parliament – it’s just another same old/same old public response to a social injustice. The more effective anarchistic actions in my experience are the novel approaches.

    Think kauri tree in the Waitakere Ranges. Would the tree still be standing had the protest taken to the steps of Parliament?

    PS. Thanks for the idea - sending those emails now.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • RaggedJoe,

    Thank you David Tong for taking time to make your points. It has certainly helped me understand the issue(s) better.

    City of Sales • Since Sep 2008 • 72 posts Report Reply

  • Alfie, in reply to Katharine Moody,

    Think kauri tree in the Waitakere Ranges. Would the tree still be standing had the protest taken to the steps of Parliament?

    Actually that issue has gone a bit sour. Back in March the landowners -- John Lenihan and Jane Greensmith -- wrote an open letter to Aucklanders saying that the tree would be saved. Hallelujah! Michael Tavares, the good guy who climbed and saved the kauri, came down and pleaded guilty to trespass. Deal done.

    Or maybe not. Just a few months later the property developers seem to have reneged on their offer and have applied to have environmental restrictions on their three Titirangi properties lifted. Lenihan's submission to Auckland's Proposed Unitary Plan refers to "an illegal occupation and protest."

    "If occupation and protest which included councillors, local board members and council staff had not occurred, then all vegetation would be removed and there would be no argument," he said.

    Sorry for the deviation from an important subject.

    Dunedin • Since May 2014 • 1386 posts Report Reply

  • steven crawford,

    I’m thinking of her children.

    Me too.

    Like it or not, the police, prosecuter, and judge would probably say the same thing regarding the bucket of dope in the house.

    Atlantis • Since Nov 2006 • 4327 posts Report Reply

  • Steve Barnes, in reply to Rosemary McDonald,

    Three Kaikohe men have since been jailed for their part in the attack.

    Thanks for that Rosemary. I thought I'd done a fairly comprehensive search but....

    I found it disturbing that their Lawyer, Doug Blaikie and my sympathies go out to him and his family for his current health issue, felt confident enough to say "I don't have a problem with it. And when the jury hears the evidence, they won't have a problem with it either," assumptions are well known to make asses of the best of us.

    It reminds me of a case I, unfortunately, found myself the subject of, criminal damage.
    As a builder I quite often came across client who knew just how hard it can be to get paid for your work. In this instance I had completed a section of the job which required an interim payment. The client decided that she wasn't going to pay because she knew she could get away with it so I "undid" the work. I was arrested and had to go to court. This was back in '95, the time of the Auckland power cuts, my lawyer informed me that the court was not sitting on that friday due to power outages and that the case had been set back until Monday.
    Monday I turn up at court and was immediately arrested and locked up for not appearing on the Friday. When my Lawyers Lackey eventually turned up he said, "Oh, it's just a simple drug case, nothing to worry about. The clown hadn't even read the brief.
    Shit happens eh?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Katharine Moody, in reply to steven crawford,

    Like it or not, the police, prosecuter, and judge would probably say the same thing regarding the bucket of dope in the house.

    But not about the dozen beers.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • steven crawford, in reply to Katharine Moody,

    But not about the dozen beers.

    Or the suppermarket shelves stacked with bottles of wine, which sometimes, when they drink to much, lead to mum and dad behaving out of sorts.

    Atlantis • Since Nov 2006 • 4327 posts Report Reply

  • Steve Barnes, in reply to Katharine Moody,

    But not about the dozen beers.

    Oh my God....
    They had BEER?
    Won't somebody think of the dear sweet vulnerable children?.
    /s

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • steven crawford, in reply to Steve Barnes,

    Oh my God….
    They had BEER?

    That’s what got them started on the serious criminal offending(;-(

    Atlantis • Since Nov 2006 • 4327 posts Report Reply

  • Katharine Moody, in reply to steven crawford,

    lead to mum and dad behaving out of sorts.

    And worse, it sometimes leads to:

    For every 100 alcohol or drug-impaired drivers or riders killed in road crashes, 50 of their passengers and 19 non-alcohol impaired road users die with them.
    In 2012, driver alcohol was a contributing factor in 73 fatal crashes, 331 serious injury crashes and 933 minor injury crashes. These crashes resulted in 93 deaths, 454 serious injuries and 1,331 minor injuries.

    Jest all you want.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Katharine Moody, in reply to Steve Barnes,

    Won’t somebody think of the dear sweet vulnerable children?

    http://www.ahw.org.nz/resources/pdf/Violence_F_Sheet.pdf

    Indeed.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • steven crawford, in reply to Katharine Moody,

    Jest all you want.

    You might have misread me.

    Atlantis • Since Nov 2006 • 4327 posts Report Reply

  • Katharine Moody, in reply to Steve Barnes,

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Katharine Moody, in reply to steven crawford,

    You might have misread me.

    Sorry!

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Rosemary McDonald, in reply to Katharine Moody,

    Yep, and personally, with a shitload of prejudice, believe that parents need every brain cell unimpaired to do right by their kids.

    This issue is not, IMHO, about Cannabis Law.

    This is about gross inconsistency in sentencing within the framework of existing law.

    I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense...to me.

    I am, with this case, extremely frustrated.

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Katharine Moody, in reply to Rosemary McDonald,

    This issue is not, IMHO, about Cannabis Law.

    This is about gross inconsistency in sentencing within the framework of existing law.

    I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense…to me.

    Unfortunately, it is looking to me, like a guilty plea can score you a "get out of jail free card' for killing someone in this country. But a not guilty plea scores you a custodial sentence for growing a prohibited weed in your backyard - a victimless crime. It says something about how the law seeks the ultimate in submission by its subjects.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • David Tong, in reply to Rosemary McDonald,

    And prosecuting lawyers don’t like that.

    It's not the lawyers' choice. It's the law as set down by the Supreme Court, upholding a long-standing chain of cases from multiple common law jurisdictions. Pleading not guilty cannot legally be an aggravating factor, but pleading guilty is a mitigating factor that justifies up to a 25% discount in end sentence.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • Rosemary McDonald, in reply to David Tong,

    Pleading not guilty cannot legally be an aggravating factor

    Hah! another time, another place, perhaps, I would like to tell you a wee story....

    But...

    I'm not in jail...(luckily)

    And it shouldn't come down to luck for chrissakes...

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • David Tong, in reply to Rosemary McDonald,

    This is about gross inconsistency in sentencing within the framework of existing law.

    I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense…to me.

    The problem is that we're trying to make comparisons between sentencing judgments on only part of the facts without seeing the sentencing decisions themselves. So we don't know what factors were or weren't taken into account. What looks to us like inconsistency is - from my experience working in criminal sentencing - often Judges applying remarkably consistent principles to eternally varied cases.

    Don't get me wrong - I've seen some totally perverse sentencing outcomes in my time. But most of these come down to oddities in the statutes drafted by Parliament, and frustrate judges and lawyers too. For example, for years, if you killed someone while driving carelessly you'd get a much lower sentence if the police chose to charge you for careless driving causing death than you would if they chose to charge you for manslaughter - even though the elements of each offence were almost identical. Similarly - moral panics around joyriding led to new offences being created for stealing and abandoning cars that had higher sentences than stealing cars to keep or sell. I'm not even sure if either of those have been resolved - it's been 4-5 years since I looked at either.

    But I'm very reluctant to call sentencing cases inconsistent without reading the sentencing decisions. Without doing that, we're flying blind.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • David Tong, in reply to Rosemary McDonald,

    Yes we have the Court of Appeal, the Supreme Court, but is there any ‘higher power’ who is able to intervene in cases like this where, on the face of it, there has been a significantly disproportionate sentence?

    Apart from the Royal Prerogative of Mercy, which probably wouldn't be suitable here, the only option is an appeal up to the HC.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • David Tong, in reply to Alfie,

    However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.

    Except without reading his sentencing decision and seeing what authorities he cited, we can't see if his hands were tied. From my own experience of cannabis sentencings and appeals against sentence, what he said rings true. I'm betting that he was pretty well ring-fenced by CA and HC decisions that effectively constrained his discretion. I don't know for sure, but it does look like a pretty straight forward application of tariff cases and established law.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • David Tong, in reply to Alfie,

    I agree that a less strident prosecutor might have recommended a community-based sentence. However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.

    Except <i>R v Terewi</i>, the tariff case governing cannabis supply, makes a community based sentence inconceivable. The only options were imprisonment or home detention. Anything less would be appealed in an instant, and would be contrary to Court of Appeal authority.

    Auckland • Since Jul 2015 • 14 posts Report Reply

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