Hard News: Judicial caprice is no way to pursue law and order
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From what has been reported Kelly Van Gallen is an active visible community leader. She also by her own admission distributes cannabis albeit for free. As a role model for her community the judge may have seen it as his job to severely punish her for promoting a sanctioned substance from a position of respect and influence.
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While in no way attempting to excuse the Judges decision (and his try hard - tough on crime stance) this is noteworthy: 'Parole decisions are made by judges in some countries, such as Israel, where researchers investigated how those decisions are influenced by the critical human issue of lunch. Over the course of a day, the judges approve about 35% of prisoners’ applications for parole. But the approval rate declines steadily in the two hours before lunch, almost to zero just before the lunch break. Immediately after lunch, it spikes to 65% and then again declines steadily. If you’re a prisoner, the number of years you spend behind bars could be affected significantly by whether your parole application happens to be the last one on the judge’s stack before lunch or the first one after. [ http://fortune.com/2015/07/23/humans-are-underrated/ ]
'The fracas started after Judge John McDonald finished sentencing a man to a month in jail on a charge of possessing a pipe used for smoking drugs.The man, facing other drugs charges, appeared for a callover and as he was being escorted back down to the building by First Security officers, the judge called him back. Judge McDonald opted to sentence him before lunch...' [ http://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11131314 ]
A month in jail for a pipe?! If that was the sentence on the 'lesser charge' I hate to think how the more serious one went. If I was that guy, in light of the research, I would be politely requesting a review of that trigger happy pre-lunch hunger driven vindictive decision
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Rosemary McDonald, in reply to
Over the course of a day, the judges approve about 35% of prisoners’ applications for parole. But the approval rate declines steadily in the two hours before lunch, almost to zero just before the lunch break. Immediately after lunch, it spikes to 65% and then again declines steadily. If you’re a prisoner, the number of years you spend behind bars could be affected significantly by whether your parole application happens to be the last one on the judge’s stack before lunch or the first one after.
I was told that a similar effect is noticed if the judge was trying to ignore the call of nature...
Surely not?
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Campbell Larsen, in reply to
No idea - but it seems like a good reason to give Judges more loo and snack breaks at the very least. Here are some stats on untensil possession sentencing - it's pretty clear that the penalties are out of wack: PUNISHING DRUG USE
How New Zealand has treated minor drug offenders over the past six years:
CANNABIS POSSESSION
Charges: 17,931
Convicted: 13,131
Imprisoned: 890
Maximum penalty: 3 months in prison and/or a $500 fineCANNABIS UTENSIL
(SUCH AS A PIPE)
Charges: 11,057
Convicted: 7,563
Imprisoned: 737
Maximum penalty: A year in prison and/or $500 fineMETHAMPHETAMINE POSSESSION
Charges: 2185
Convicted: 1523
Imprisoned: 341
Maximum penalty: 6 months in prison and/or $1000 fineMETHAMPHETAMINE UTENSI(SUCH AS A PIPE)
Charges: 3899
Convicted: 2765
Imprisoned: 548
Maximum penalty: A year in prison and/or a $500 fine- The Dominion Post via http://www.stuff.co.nz/national/crime/8151844/Petty-drug-users-fill-New-Zealand-jails
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So, convicted of cannabis possession you have 1 in 14 chance of jail
Pipe, 1 in 10
Meth, 1 in 4
Meth pipe, 1 in 5
So the pipe is worse than the weed?.
What the whatever?. -
For some light relief on the matter...
Man accused of driving stoned takes selfie with arresting officer -
Campbell Larsen, in reply to
Great illustration of how Police mug shots are never intended to show anything other than a 'threat to society' - probably the reason he opted for the more natural selfie
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Brian Rudman has a piece on this case in the Herald today: NZ should take a leaf out of liberal cannabis law.
He points out the absurd inconsistency of McDonald's decision in comparison to a recent case in June in Ashburton where an Israeli couple, caught red-handed with 6kg (= 9 times as much as Kelly van Gaalen had) of dried cannabis, were discharged without conviction! (Though, in return for a $2000 donation to the Salvation Army.)
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BenWilson, in reply to
Yeah, it's pretty fucked up, since possession of a utensil is really an indication of personal use. Maybe if you had 2 pipes....
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Steve Barnes, in reply to
possession of a utensil is really an indication of personal use.
But there is the rub. Cannabis is usually shared, it is the people that don't share that tend to be the problem smokers, a joint for breakfast etc.
Sharing a joint with a couple of friends is the norm as far as I can tell so supply on that level could, technically, get you busted for supply. -
Deputy Public Defender in Christchurch
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chris, in reply to
I think the harshness is due to the “crime” being something that many people don’t see as illegal (or they have the cognitive dissonance thing going on where they smoke weed themselves but still think it should be banned. This is surprisingly common).
I honestly believe that the quickest way we’d see positive change in this country would be if the cannabis supply to those in positions of influence were to suddenly dry up.
The police have real power here to make a change that would make their jobs more interesting, if they chose to put their feet down on the right targets.
In the past Russell has been fairly critical of members of ALC and NORML members over their shortcomings, and while I understand the frustration, all things considered, they are for the most part simply activists, they are not the invisible difference. It’s the media and politicians who hold the reigns on this, and in all fairness, Russell is – bar none – the most visible pro drug reform media personality out there. Sniff hard enough and be greeted by the aromatic scent of 100s of prominent New Zealanders, prepared to toke the toke but not talk the talk, languishing in his shadow. If they were all suddenly unable to source, who knows what could happen.
There were a lot of myths put about in the eighties about cannabis; that it makes your lazy, that it destroys motivation etc. I never found these to be that accurate, on the contrary I’ve found cannabis makes you more focused, more engrossed in whatever it is that you’re doing, but also that users tend to shy away from confrontation. It’s a comfort zone magnet. As someone who has not partaken of anything (legal or otherwise) for quite some time I’m hounded by a nagging suspicion that ironically the biggest impediment to the decriminalisation of cannabis in New Zealand is the pervasiveness of cannabis in our society.
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Tudor Clee, in reply to
Hi Nick. Actually yes supply of class C needs to be commercial - unless it is to someone under 18. That makes it distinct from Class A and B which do not require commerciality to be supply. This is the precise point which makes this matter so fishy - if the Judge accepted there was no commerciality the verdict has no basis. But need to see the full decision.
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Tudor Clee, in reply to
Hi Steve, I've just replied to someone else on this point - Class C is not supply without commerciality unless to someone under 18 - that distinction was made precisely to avoid turning people passing around a joint into suppliers.
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Well, hey...
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11533512
After questioning Mr Anson on how quickly home detention could be arranged, the three justices had a brief adjournment and stated the issue could be dealt with within 15 minutes upon re-entering the court.
Crown prosecutor Aaron Perkins said he understood where the case was going.
"I sense that there might be a slight headwind moving into [home detention]," he said.
"The Crown's position remains that there is no error by the judge. He's not fallen into [a] trap.
"Having said that, I do allow it's a stern sentence that has been imposed."
The decision was reserved, but Justice Harrison said the determination could be expected "very promptly".
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Katharine Moody, in reply to
Great news.
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Russell Brown, in reply to
“Having said that, I do allow it’s a stern sentence that has been imposed.”
Well, quite. All that guff from McDonald J about being "troubled" by the sentence he supposedly had to impose was tosh. Good grief.
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Sofie Bribiesca, in reply to
This can no longer be found, it seems the article you linked to which I read yesterday, has been removed from the Herald . Even a capture of some of what you show quoted returns no article in the Herald although I selected some of it and the article said it existed, as soon as I select that ,it still shows no such thing in the Herald. Definitely gone and nothing to follow up on it either. Nada.
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Alfie, in reply to
This can no longer be found, it seems the article you linked to which I read yesterday, has been removed from the Herald .
Luckily, Google remembers everything.
Original article published: Thursday, 22 October 2015 -
Sofie Bribiesca, in reply to
Thanks Alfie, I was really trying to see what the outcome was as home detention was supposed to be considered "promptly". Well, if this is promptly, I'll eat my hat.
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To add to this discussion....Kelly should have wrangled her hearing to the Whangarei District Court.
This gentleman was pinged with a nice growing set up....with over 700 seeds concealed behind a skirting board for future planting.
Sentence... 40 hours' community work.
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Alfie, in reply to
Here’s another example of inequity in sentencing.
While Kelly van Gaalen is spending two years in jail for growing a few plants, this character has a history of drugs and violence including a nine year stretch for kidnapping someone and conducting a serious and prolonged assault over drug debts.
Police raided his home looking for a stolen vehicle, which they found, along with a meth lab and a loaded pistol under the bed. A child living in the house tested positive for meth residue.
Sentence… one year on home D and 100 hours of community work.
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Another perfect example of sentencing unfairness.
A Nelson father and son were caught with 562 plants over two houses. That's a substantial operation in anyone's book. However the judge decided that there was "no evidence of a financial motive for either defendant" and sentenced them to home detention. The story doesn't mention the length of the sentence.
Meanwhile Kelly van Gaalen languishes in prison.
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While our sentencing is pretty bad, it could be so, so much worse.
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Judge McDonald said there was no evidence of commercial dealing, such as text messages on her phone, but Parliament had set the upper limit for personal use at 28g. Van Gaalen had 24 times that and knew it was against the law.
These numbers are given more context when compared with the case of Rebecca Reider legally bringing cannabis into the country.
she travelled through Customs at Auckland Airport on Friday with an ounce of medicinal cannabis that had been prescribed to her during a visit to Hawaii.
So can see that our legal threshold before cultivation/possession is deemed to be for supply…
Northland Crown prosecutor Mike Smith was surprised at the charge, saying while it was not his office that prosecuted Moodie, the law made it clear that anybody found to have more than 28g of cannabis was presumed to have it for supply.
…is equal to what a Hawaiian Doctor might prescribe for one month’s use – that’s just the raw cannabis.
New Zealand law allows anyone who is prescribed a medicine overseas to bring one month’s supply into the country for their own use – including cannabis products.
So Van Gellen was in possession of the equivalent of 2 years worth of monthly prescriptions, split that with a smoking partner and that’s about even.
As an agricultural country, it is expected that there may be some among our legislature who are aware what is meant by the term ’annual crop’. Following a summer of endless pruning, an outdoor cannabis grower may stockpile their annual 28g harvest (equiv: 2.3g p/month) for personal use without great concern about being prosecuted for supply. Obviously this is insufficient for many and quite unrealistic but it is basically free.
Indoor growing, reliant on precious electrical energy enables growers to manipulate this annual cycle. Even still, the possibility of growing with the added complication of maintaining a stockpile/ flowering plant weight of 28g or less at all times requires creditable skill – placing the onus on growers to destroy stockpiled harvest in order to remain below that threshold. Users are not encouraged to grow cannabis themselves, the fairly obvious interpretation is that it is preferable to lawmakers that most cannabis users should purchase less than 28g of cannabis at any one time by feeding NZD into the black market to those prepared to face greater criminal liability for greater financial reward.
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