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 Lisa Black,

    she would have been unable to refuse to act.

    I am not arguing that the lawyer should have refused to act. My beef is with the Crown Prosecutors recommendation on sentencing for a 3 year custodial sentence.. Was that her client, the Crown's specific instruction regarding this specific case? Or was she using her own judgement based on her interpretation/understanding of "the game"?

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Katharine Moody, in reply to Amanda Wreckonwith,

    I wonder what will be written on the placards that Katharine plans to have her children carry?

    Three years time for a victimless crime?

    .

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Amanda Wreckonwith, in reply to Katharine Moody,

    . Was that her client, the Crown’s specific instruction regarding this specific case? Or was she using her own judgement based on her interpretation/understanding of “the game”?

    All valid questions. Do you intend to look for the answers before picketing the office? Or are the pitchforks sharpened and torches lit?

    Since Sep 2012 • 171 posts Report Reply

  • Katharine Moody, in reply to Amanda Wreckonwith,

    Do you intend to look for the answers before picketing the office?

    Being an anarcho-pacifist, yes, that's a good idea. I'll email her now and let you know the outcome.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • steven crawford,

    I am not arguing that the lawyer should have refused to act. My beef is with the Crown Prosecutors recommendation on sentencing for a 3 year custodial sentence...

    Ether the Crown was to fat headed to take advise, or the Prosecuter let the client down with bad advise. It's not in the best interests of the Crown to have it's citizens caged in violent enviroments. Exept, when there are no reasonable alternatives.

    Atlantis • Since Nov 2006 • 4327 posts Report Reply

  • Russell Brown, in reply to Katharine Moody,

    And that’s what I’m saying – those folks who live in Whangarei and elsewhere locally that might be existing and/or potential future clients should boycott the firm in a very public way.

    To what end? To try and force them not to work for the Crown?

    Sure, taking their business down for just “playing the game” by the rules sounds unfair to them, but such is the cost of putting right injustices and recovery is much easier for the privileged.

    But it's not "playing the game", it's what they're professionally required to do. Seeking three years seemed excessive relative to other cases noted, but the judge is supposed to be able to sort that out. It's his job.

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Rosemary McDonald, in reply to Russell Brown,

    Seeking three years seemed excessive relative to other cases noted, but the judge is supposed to be able to sort that out

    I wonder what the Crown lawyer in the Maki Herbert case asked for?

    Again, like the case of the men who committed the home invasion at the van Gaalen's, next door to nothing in the media. Why is that?

    It’s his job.

    Now, what did he say about having to be consistent?

    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?

    This woman languishing in custody while the wheels slowly grind can only do serious harm.

    I'm thinking of her children.

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

  • Katharine Moody, in reply to Russell Brown,

    To what end? To try and force them not to work for the Crown?

    No, to send a message to a Crown Prosecutor who might have exercised her professional judgement poorly. If the Crown gave/gives specific instruction to their prosecutors regarding sentencing recommendations on a trial-by-trial basis, then fair enough, she was acting on specific instructions. But if they expect their prosecutors to use their own professional judgement, well on the face of it, it seems this particular individual made a bad call.

    Just got an automated reply from MWIS - so the question should be answered shortly.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Katharine Moody, in reply to Rosemary McDonald,

    I’m thinking of her children.

    Me too.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Craig Ranapia, in reply to Nick Russell,

    there are a bunch of people down here in Wellington who can actually change the law. Lawyers and courts, not so much

    Actually not at all -- there's very good reasons why we separate the judicial and legislative branches of government. Isn't there?

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Craig Ranapia, in reply to Katharine Moody,

    Once again, don’t inflate my argument. I’m talking about an issue for which the democratic process has so far simply not worked. And I’m sick of seeing some of the poorest and most vulnerable members of our community persecuted for it – whilst some of the wealthiest and most privileged profit from it.

    Well, yes... and many many years ago I did my time as not great court reporter and it was pretty hard to miss that if you got caught with a couple of joints on your person on Friday night would was much more likely to get discharged and who wasn't. (Hint: It really helped if you were a white university student.)

    But you don't like the law, convince the legislature to change it but don't expect lawyers and judges to do that. Do you want the judiciary legislating from the bench or, vice versa, politicians and the media and lobbyists acting as self-appointed and unaccountable jurists? That strikes me as causing a lot more problems than it solves.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Alfie,

    I think we all agree that the problem here is an unjust law, and the extremely poor application of that law by a judge who is out of touch with the real world.

    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.

    But ultimately it's our lawmakers who merely whistle and look the other way in the face of a gross injustice. They are the people who can and should make a change.

    Peter Dunne... let's hear from you.

    Dunedin • Since May 2014 • 1387 posts Report Reply

  • Rosemary McDonald, in reply to Katharine Moody,

    Me too.

    I see that, and I know from personal experience that prosecuting lawyers can sometimes choose to ignore the human aspects of a case. They can relentlessly pursue, ignoring glaring inconsistencies in the police case because, once in the hunt for fresh meat...

    And the only real hope is that the Judge does his job, sort the fact from the bullshit, and arrive at a fair and just decision.

    And sentence according to his/her own stated parameters.

    PS I'm finding the whole 'we're only acting under instructions' argument from the legal fraternity ironic.

    How would that line of defense stand up in court?

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

  • Katharine Moody,

    From the MWIS website:

    Prosecutors in New Zealand have a duty to act in a manner that is fundamentally fair. In particular Prosecutors must balance performing their obligations in a detached and objective manner while still striving to ensure that victims’ rights and expectations are fulfilled.

    http://mwis.co.nz/services/crown/

    So I repeat:

    Three years time for a victimless crime?

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • David Tong, in reply to Katharine Moody,

    It’s NOT a game for goodness sake. And until the legal profession stop referring to it as such, there really is no hope.

    I didn't mean to downplay it's importance with my metaphor. But, to be honest, 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. That detachment is a personal defence mechanism.

    That’s my whole point – the profession can no longer dehumanise the law – it’s why local protest of the firm sends a message, whether the prosecutor was simply "playing the game" by the rules or not. Real people, real lives.

    I'm a community lawyer. I used to work at large firm, but left two years ago to do my LLM. While working on my LLM, I started doing community law work. So, yes, I see these real people every damn day. Often, they're in tears. I do my best for them, subject to my employer's contract with the Ministry of Justice.

    If I decided that I was going to use a particular client's case to put the whole system on trial or do whatever inflammatory Hollywood appeal to justice you seem to think should've happened in van Gaalen's case, I'd be doing my client a huge, huge disservice and getting a worse outcome for them.

    Similarly, it's my ability to be polite and courteous and even, yes, share jokes with prosecutors and other lawyers on 'the other side' that let's me be an effective negotiator. (And do I leave my phone on in Court? Well, yes - and my iPad. Many lawyers do, because we need to balance demanding caseloads and shifting court timeframes.)

    You are blaming the Judge and the lawyers for enforcing the law. We need some system of rules if we are to have courts (and if we aren't to have courts, well, I haven't seen a functioning example of anything better). I want lawyers and courts to play their parts in the justice system according to the law, because - for all its many flaws - it's the best system we've yet developed for administering some kind of justice. Can that system get better? Yes, absolutely - but the way to do make that happen is not for lawyers and judges to substitute their own judgment for the law.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • David Tong, in reply to Russell Brown,

    The post says the opposite. It was the judge who claimed to have no discretion – the examples I provided were intended to demonstrate that was plainly untrue.

    Fair - though the headline about judicial caprice seems to tilt on the opposite direction.

    I'm not convinced that it is 'plainly untrue' that the Judge didn't have discretion though. The starting point for van Gaalen's sentencing would be above two years imprisonment under the tariff case, <i>Terewi</i>, which a DC judge would have to follow or face an inevitable solicitor-general's appeal against sentence (and so possible a higher sentence again in the HC). From that, the balancing of personal aggravating and mitigating factors has very important elements of discretion, but is guided by precedent. At a guess, I'd say that the Judge would have deducted 10-20% from the starting point to get to the end sentence of two years.

    Importantly - and totally not considered in any of the comparisons done - van Gaalen pled not guilty and went to trial. Under <i>Mako</i>, an early guilty plea would get an offender a discount from their sentence of up to 25%.

    For a cannabis supplier to get a two year end sentence - so in the range where home detention becomes possible - without a guilty plea is very unusual. That will reflect the Judge using all the discretion he could to discount van Gaalen's sentence.

    The final question in sentencing would have been home detention. Again, there, the Judge has a discretion that is very constrained by case law. It is supposition to guess why a 12 month home D sentence was ruled out, but I'm guessing the denial of the offending and other factors let the probation service and Crown to think recidivism was likely if van Gaalen received home D at her home address. It is, again, rare for a supplier to be allowed home detention at the address where they offended.

    So, at each stage, the Judge had a limited discretion within a window confined by case law. That sentencing judges have discretion but not unlimited discretion is very, very important. We have to balance offenders' personal circumstances with fairness between offenders and predictability.

    <qL>But … I think we’ve reached the point with this 40 year-old law where police, prosecutorial and judicial discretion are no longer adequate. The law itself needs to change.

    The Law Commission and two Parliamentary select committee inquiries say so too.</q>

    There, I agree absolutely.

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • Rosemary McDonald, in reply to David Tong,

    – van Gaalen pled not guilty and went to trial.

    And prosecuting lawyers don't like that.

    I wonder if there was some confusion about the legal meaning of the word "supply"

    To some mere mortals, "supply" implies "sale"...which by all accounts, and even the Judge remarked...there was no evidence that she was 'dealing'.

    If I were growing for my mates...no way would I plead guilty to an offence (no matter how much pressure applied by the prosecutor) which implied I was selling.

    I wonder if this was properly explained.

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

  • Sofie Bribiesca, 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?

    Another consequence of an appeal could be that it may not go in her favour although enough public outrage might help. However, one needs to remember and this article suggests , the Judge is tough

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Russell Brown, in reply to David Tong,

    For a cannabis supplier to get a two year end sentence – so in the range where home detention becomes possible – without a guilty plea is very unusual. That will reflect the Judge using all the discretion he could to discount van Gaalen’s sentence.

    The final question in sentencing would have been home detention. Again, there, the Judge has a discretion that is very constrained by case law. It is supposition to guess why a 12 month home D sentence was ruled out,

    And yet in writing the original post it took only minutes to find the case of Ian Cole in Westport, who was sentenced in the same week to nine months home D and 150 hours community work – despite pleading not guilty and having been caught with all the trappings of commercial supply, $2000 cash, seven kilograms of cannabis and 20 plants and some LSD. The difference, I guess, is that a jury found him guilty of possessing for supply only the heads found in his car – but that was still twice what was found in van Gaalen’s house.

    I remain extremely unconvinced that McDonald’s hands were tied to the extent he said. Also, why wasn’t the option of community work explored? It would seem a very appropriate way to deal with van Gaalen.

    ut I’m guessing the denial of the offending and other factors let the probation service and Crown to think recidivism was likely if van Gaalen received home D at her home address. It is, again, rare for a supplier to be allowed home detention at the address where they offended.

    Cole seems to have been allowed to live in his house – and so were the Havelock couple who McDonald sentenced to six months home D after they admitted commercial dealing and growing, and selling BZP:

    Judge John Macdonald ordered the sentence despite a probation report which said it did not recommend people serving home detention at the same address because tensions may flare.

    The sentence involves people living at an approved address for 24 hours a day, seven days a week, unless they have permission from their probation officer to leave.

    Judge Macdonald said the service’s rule was for the safety of Watkins, but the couple had been together for a long time and Watkins was old enough to look after herself.

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Sofie Bribiesca, in reply to Rosemary McDonald,

    If I were growing for my mates...no way would I plead guilty to an offence (no matter how much pressure applied by the prosecutor) which implied I was selling.

    But by pleading not guilty, she ended up going down the track toward a jail sentence . A guilty plea could have put her on track to home D. Sometimes the guilty plea is the way to plea because of our law.


    ETA, oh better explained by Dave Tong upthread

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Katharine Moody, in reply to Rosemary McDonald,

    If I were growing for my mates…no way would I plead guilty to an offence (no matter how much pressure applied by the prosecutor) which implied I was selling.

    Same here. My first thought was if by sharing her crop with friends she might well have done so to prevent them from having to deal with the real criminal elements in town - and if so, she was again doing the community a service.

    I know to the "establishment" that sounds perverse but addiction/reliance on a drug is a fact of life for many who are good people.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Sofie Bribiesca, in reply to Russell Brown,

    and so were the Havelock couple who McDonald sentenced to six months home D after they admitted commercial dealing and growing, and selling BZP:

    They plead guilty. They showed remorse by going to counselling and hadn't used drugs since. That is what the Judge is taking into account.
    Phil Goff once told me, There is justice and there is the law. Do not confuse them. The most valuable lesson I ever learnt with regards dealing with our courts.
    Another thing would everyone be outraged if it was some Maori dude in a similar circumstance? Because it happens all the time with Maori. Especially up here.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Rosemary McDonald, in reply to Katharine Moody,

    Shhhh!

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

  • Steve Barnes,

    I really can't see what surprises people about this sentence.
    Maori woman in Kaikohe gets busted for more than the "allowable" amount of cannabis after police are called following a "Home Invasion".
    She pleads not guilty and admits supply.
    Two years jail.
    The woman in question has a public profile of being a member of the "Kaikohe Community Arts Council" (look it up) so the judge can see that the sentence will send a "meaningful" message to that community, ie, the higher you are the greater the fall, drugs are bad MK? one law for all blah blah blah.

    Perhaps the judge is sick and tired of a law that does more harm than good and deliberately errs on the side of harshness in his sentencing to create debate (not his job but hey, it worked out that way).

    Kaikohe is not Grey Lynn, poor people, high unemployment, gang culture and, dare I say it?, endemic racism in the system.

    The interesting points as far as I am concerned are...
    The confusion over the word "supply".
    Supply in no way implies sale, it can in that if you sell something you are supplying the buyer but by supplying you are not necessarily selling.

    Picketing the Law Firm.
    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.
    The Home Invasion, a far more serious offence.
    Did the police even follow this up? we don't know. 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.

    Which begs the question, can a person find out about the actions and results of those actions, of the police in this matter?.
    Can this be done through an OIA request?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Rosemary McDonald, in reply to Russell Brown,

    I remain extremely unconvinced that McDonald’s hands were tied to the extent he said. Also, why wasn’t the option of community work explored? It would seem a very appropriate way to deal with van Gaalen.

    Nail on the head there Russell.

    Now, what quantity of shit, and from what height, for questioning a Judge's sentencing?

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

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