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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  • Dave Waugh,

    As well as caprice it also leaves it wide open to corruption.

    Wellington • Since Nov 2006 • 98 posts Report Reply

  • Russell Brown,

    Here’s one from last week in the Ashburton District Court.

    A couple caught with a fairly sophisticated indoor grow and 6kg of weed and … discharged.

    There were unusual circumstances – the couple were Israelis who already planned to leave the country – but it further underlines what complete bullshit Judge McDonald’s hand-wringing was.

    Auckland • Since Nov 2006 • 22537 posts Report Reply

  • Rosemary McDonald,

    I spent a wee while doing some googling last night re this...put my results here..

    http://thedailyblog.co.nz/2015/08/05/mother-of-3-jailed-for-2-years-the-madness-of-nzs-cannabis-laws/#comment-297037

    inconsistent is an understatement.

    There is much more to this than meets the eye....and for the life of me, I can't find anything much about the trial of the dudes that did the home invasion.

    Waikato, or on the road • Since Apr 2014 • 1325 posts Report Reply

  • Joe Wylie,

    We don't even need to search for convictions for violent and anti-social offences which have attracted lesser sentences, although there are too many of those to count.

    Indeed. Still, I confess myself utterly gobsmacked by the discrepancy between van Gaalen's sentencing and this.

    flat earth • Since Jan 2007 • 4585 posts Report Reply

  • Katharine Moody,

    Crown prosecutor Catherine Gisler then asked the judge to jail van Gaalen for three years, saying deterrence was important.

    The Whangarei community should boycott/picket the firm;

    http://mwis.co.nz/about-us/

    The system needs to be attacked from all sides.

    Wellington • Since Sep 2014 • 787 posts Report Reply

  • Ewan Morris, in reply to Katharine Moody,

    The Whangarei community should boycott/picket the firm

    The idea of boycotting or picketing legal firms because of the position they advocate for in a trial is a dangerous suggestion. It might sound superficially appealing in relation to this case, but think about, for example, a defence lawyer who defends an unpopular client to ensure he or she gets a fair trial - would it be OK to boycott or picket that lawyer or firm?

    Since Nov 2006 • 45 posts Report Reply

  • Rosemary McDonald, in reply to Ewan Morris,

    Ah, but wouldn't it be nice if there was some mechanism whereby mere mortals can have the behaviour of a prosecuting lawyer investigated?

    Hold them to account for pursuing the accused in a manner that is arguably morally and professionally deficient.

    So that we can avoid the scenario of mere mortals, at the end of the day, after all is said and done...asking ourselves..."Who was up who and how much was being paid?"

    Waikato, or on the road • Since Apr 2014 • 1325 posts Report Reply

  • Alfie, in reply to Katharine Moody,

    Catherine Gisler

    When you click on Ms Gisler's profile it's completely blank. That surely tells you something.

    The injustice of this sentence when compared with the police prosecutor who received a mere $450 fine for messing with meth, is mind boggling.

    This is exactly the sort of case where NORML or ALCP should be stepping up to the plate, generating public support and perhaps providing legal support. Unfortunately both organisations manage to portray themselves as nothing more than stoners who have trouble getting out of bed in the morning.

    I wonder what Peter Dunne thinks about this case?

    Dunedin • Since May 2014 • 1342 posts Report Reply

  • Alice Ronald, in reply to Alfie,

    When you click on Ms Gisler's profile it's completely blank. That surely tells you something.

    Not really - all the profiles for the Crown team solicitors are blank.

    Christchurch • Since May 2011 • 62 posts Report Reply

  • nzlemming, in reply to Rosemary McDonald,

    Ah, but wouldn't it be nice if there was some mechanism whereby mere mortals can have the behaviour of a prosecuting lawyer investigated?

    Make a complaint to the Law Society, if you want (which is the standard practice for dealing with mis-behaving lawyers), but a Crown Prosecutor for hire operates on the instructions of his/her client, the Crown. If the Crown (as in Crown Law) gave detailed instructions to Gisler and she followed them, there is no actual bad behaviour on her part. If she pushed for the harder sentence on her own initiative, that's a different matter.

    There seems to be much shit going on behind the scenes here.

    Waikanae • Since Nov 2006 • 2897 posts Report Reply

  • Rosemary McDonald, in reply to nzlemming,

    Make a complaint to the Law Society,

    Hah! That would be the Law Society that gave a child porn viewing lawyer a pass because child porn is a victimless crime?

    I know it was long ago....some some shit just persists...

    So..if Gisler was acting under instructions...that would be the police?

    Considering the crap that goes down in larger communities with dodgy police...how much worse in a smaller community.

    Waikato, or on the road • Since Apr 2014 • 1325 posts Report Reply

  • Paul Campbell,

    Crown solicitors - as independant contractors to the crown would seem to be prime targets for FOIA requests ....

    Dunedin • Since Nov 2006 • 2586 posts Report Reply

  • nzlemming, in reply to Rosemary McDonald,

    So..if Gisler was acting under instructions…that would be the police?

    No, as I said, the client would be Crown Law. Crown Law is the government's law firm. It works closely with police in terms of prosecutions, and some police officers are Crown Prosecutors. I didn't say that this approach would be effective, just that it was the route to tak if you were complaining about a lawyer's behaviour.

    Waikanae • Since Nov 2006 • 2897 posts Report Reply

  • nzlemming, in reply to Paul Campbell,

    Crown solicitors – as independant contractors to the crown would seem to be prime targets for FOIA requests ….

    Yeah, nah. Legal privilege is a valid reason for withholding info. Also, just OIA in NZ (or LGOIMA for local governmant). FOIA is US only. ;-)

    Waikanae • Since Nov 2006 • 2897 posts Report Reply

  • Fayrestorm, in reply to Russell Brown,

    I'm no legal expert, but since when does being a Foreign National with plans to leave the country, give a Judge no other option but to rule for an acquittal?

    Auckland • Since Aug 2015 • 1 posts Report Reply

  • Katharine Moody, in reply to nzlemming,

    There seems to be much shit going on behind the scenes here.

    Which is why ‘official channels’ just don’t cut the mustard.

    PS Simon Bridges was a Crown Prosecutor - more than enough proof to me that we needn't put them all up on a Mr/Ms upstanding citizen, for-the-good-of-the-community pedestal.

    Wellington • Since Sep 2014 • 787 posts Report Reply

  • Lucy Telfar Barnard,

    I don't think there's any need to put all or any crown prosecutors up on any sort of pedestal. But nor do I think it would be fair to attack this Crown prosecutor for representing her client as best she could.
    For all we know, she was as shocked and horrified as anyone else in the community when the judge announced the sentence. She was, after all, as RB notes, only asking for the same sentence as the Crown had asked for Neil Philips of Kerikeri, who the judge then sentenced to 12 months home detention. Noone was suggesting people picket the Crown prosecutor then. So it really is wrong to try to make the prosecutor responsible for the judge's decision in this case.

    Wellington • Since Nov 2006 • 580 posts Report Reply

  • Ana Simkiss, in reply to Rosemary McDonald,

    To Rosemary McDonald and Katharine Moody:
    As an admitted solicitor for 15 years and current holder of a practicing certificate I feel I ought to respond to this.
    - you clearly have not bothered to learn about what the Law Society does to discipline its members. I assure you, they are very very effective.
    - all lawyers MUST ACT ON THE INSTRUCTIONS OF THEIR CLIENT. I doubt you would enjoy a legal system where this were not true.
    - some lawyers are better than others (including Crown Prosecutors). But just because you don't like Simon Bridges performance of his current job does not mean he lacks ethics or was no good at his former job.
    - It's hardly unusual for the Crown to ask for a much higher sentence than is handed down (likewise, the defence would typically ask for a lower sentence).
    - the person with discretion on the appropriate sentence here was THE JUDGE. Not the prosecutor.
    - the ultimate responsibility here is with parliament, who WROTE THE LAW INCLUDING THE SENTENCING ACT.

    Lawyers of all kinds are the frequent butt of jokes and believe me we can take it. But by focusing on the individual here not only have you chosen the wrong person, you have taken your eye off the system.

    Freemans Bay • Since Nov 2006 • 141 posts Report Reply

  • Rich of Observationz,

    There was a time, I think, when prosecuting council simply presented the facts of the case and didn't express a view on sentencing. I guess this changed through one iteration of the usual knee-jerk moral panic over "criminals" getting off "lightly"?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • David Tong,

    There's a lot of supposition going on here. Has anyone seen Judge McDonald's sentencing note?

    Few quick points:
    - Any sentence of two years imprisonment or below can be turned instead into home detention.
    - As there's no parole etc for home D, the rule of thumb is to halve a prison sentence for the equivalent home D sentence.
    - So someone sentenced to two years in prison (as van Gaalen was) actually got a very similar sentence to someone sentenced to 12 months home D (as Heath J gave Blaike).
    - So the obvious question is why van Gaalen didn't get home D. My guess is that the Crown and pre-sentence report suggested her home address was unsuitable for home D for some reason. It's pretty standard for the Crown to oppose home D when the offending occurred at home (as in both cases), but we just don't know the factors that put one case on one side of the line and the other on the other.
    - It's also interesting to ask why van Gaalen's lawyer did not apply for a discharge without conviction. Presumably, they made the call that the consequences of conviction would not be out of all proportion with the gravity of the offence.
    - When it comes to the foreign nationals who were discharged, again, I'd love to read the Judge's actual decision. Discharges without conviction are rare and usually controversial.
    - That said, sentencing of foreign nationals who want to leave NZ is always a tricky one. There's a reluctance to spend taxpayers' money imprisoning someone for years before deporting them - but, on the other hand, often deportation is exactly what the offenders want. A former HC judge once stood down a foreign offender's sentencing by 24 hours with the words 'You have been a very silly man. I adjourn your sentencing until 9:00 am tomorrow. If you are still in the country then, you will be going to jail, and you will be a very silly man indeed.' (or similar)

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • Rosemary McDonald, in reply to Ana Simkiss,

    you clearly have not bothered to learn about what the Law Society does to discipline its members. I assure you, they are very very effective.

    so, the child porn perveing lawyer was a figment of my imagination then?

    some lawyers are better than others (including Crown Prosecutors).

    No shit, Sherlock.

    But just because you don’t like Simon Bridges performance of his current job does not mean he lacks ethics or was no good at his former job.

    Hey, I never mentioned Bridges, but since you brought him up, does a leopard ever change it's spots?

    Lawyers of all kinds are the frequent butt of jokes and believe me we can take it.

    Really?

    Your reaction, 'evidence' if you like, would suggest otherwise.

    the system.

    That takes lawyers and turns them into judges, who have discretion when it comes to sentencing....which is what this discussion is about.




    .

    Waikato, or on the road • Since Apr 2014 • 1325 posts Report Reply

  • Russell Brown, in reply to Lucy Telfar Barnard,

    She was, after all, as RB notes, only asking for the same sentence as the Crown had asked for Neil Philips of Kerikeri, who the judge then sentenced to 12 months home detention.

    To be fair, even Philips' lawyer was realistic about jail time. Van Gaalen seems a significantly different case.

    Auckland • Since Nov 2006 • 22537 posts Report Reply

  • David Tong,

    Rich: I'm not sure if such a time ever existed. Certainly not in my legal experience. But there's an element of self-fulfilling prophesy in Crown sentencing submissions. The Crown's duty is to seek not the harshest sentence possible, but a fair sentence in accordance with the law. Trouble is, there's a perception (that I've heard from a few prosecutors) that some DC judges just split the difference half way between the Crown and defence submissions. So the prosecutors aim high, counting on the Court to go for something in the middle. The Court ends up imposing a sentence in the middle (which is what it should do anyway), confirming the prosecutor's impressions... (even if that's not why/how the Court chose that sentence).

    Auckland • Since Jul 2015 • 14 posts Report Reply

  • Katharine Moody, in reply to Ana Simkiss,

    Perhaps you can explain to us the Crown Prosecutor's statement that "deterrence is important"? Deterrence from what and important why?

    Wellington • Since Sep 2014 • 787 posts Report Reply

  • David Tong,

    Katharine, the Crown prosecutor was stressing that deterrence is a purpose of sentencing. Section 7(1)(f) of the Sentencing Act 2002 states:

    7 Purposes of sentencing or otherwise dealing with offenders
    (1) The purposes for which a court may sentence or otherwise deal with an offender are—
    […]
    (f) to deter the offender or other persons from committing the same or a similar offence; or
    […]

    So, the prosecutor was talking about deterring other people from cultivating cannabis, and that’s important because Parliament has said it is important in enacting the Misuse of Drugs Act and Sentencing Act.

    To a lawyer with experience in criminal sentencing, the prosecutor’s statement is utterly mundane. It’s a completely routine game; the Crown stresses the purposes of accountability, deterrence, denunciation, and community protection, but the defence stresses the purposes of rehabilitation and reintegration (all of which are purposes of sentencing mandated by Parliament).

    Auckland • Since Jul 2015 • 14 posts Report Reply

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