Legal Beagle by Graeme Edgeler

Have now remembered I should have turned comments on. I hope the withdrawal wasn’t too bad :-)

It does seem odd - the law showing its ass for sure.

Can anyone explain why the law keeps that particular ruminant rather than, say, a camel? As metaphor "the law is a camel" strikes me as far more accurate, it's all teeth and kicking that requires skilled hands to control.

From the same root thinking that gives us asinine.

http://www.phrases.org.uk/meanings/the-law-is-an-ass.html

I'm quite annoyed at the judges decision in this case; particularly the aspect that it was only a playground fight.

College kids catch school buses outside where I work and one time a group of kids were hitting another kid. I decided that I couldn't stand by and do nothing and so I went up to them and told them what they were doing was assault and if they didn't stop I'd report them. They stopped doing it but just laughed at me. However, knowing I had the law on my side meant I could go and do that. Now that the judge has virtually said playground fights don't matter, I don't feel I have any kind of lawful backing to intervene in such a case again. If I go and tell them to stop and they say bugger off than what do I do? Wait until it looks like attempted murder?

If I go and tell them to stop and they say bugger off than what do I do?

Dial 111. Assault hasn't been made legal by this decision, has it?

While I'd agree that violence and bullying by children needs to be reduced, it's hard to judge where the full force of the criminal law needs to be brought to bear. If every kid who hits another ends up going through police action, suspension from school and a criminal record, we'll just get a lot of young violent criminals.

In general, I'd say that discharge without conviction should only be used in fairly exceptional cases, where a case should really not have reached court, but it wound up there and the judge needs to correct that. I'd think that working on making the long term effects of a conviction less devastating is better than not convicting those who are clearly due a punishment, but can make a case for disproportionate effects (For instance, one could envisage imposing a community sentence but suppressing all identification details, including withholding them from foreign states).

In the case in question, there is a reasonable argument that had the assault not had tragic consequences, the culprits would have got diversion and that lead the judge to reasonably sentence to a discharge without conviction,

Poor brown kids never get this sort of magic carpet ride out of the criminal justice system that these two brothers got. I wonder if the main factor that the judge has taken into account are sport related. They seem to be dazzled by the aura of those gifted at sport every time they appear in court. Are these two brothers the offspring of some former 'great' who are headed for a great career as rugby professionals now that the pesky problem of any sort of conviction has been removed.

I kinda don't think the Crown should be able to appeal a discharge without conviction. The court has decided the offence didn't merit a conviction -- and we don't let the Crown challenge that in general. So why should this one form of decision be challengeable?

The fact you can scrounge around and use judicial review as a backdoor at the DC level just seems to indicate that the use of judicial review as a backdoor appeal system is kinda screwy, no?

https://www.courtsofnz.govt.nz/cases/r-v-m

The finding seems pretty strait forward. Because there's no causative link between the assault and the death, both crown and defence agreed that the death cannot be used in sentencing.

So it falls back on one kid finding his younger brother and another shaping up to fight, being egged on by a crowd, and he stepped in and quickly knocked the other one on his ass, then left. Assault with intent to injure.

He's seen a court shrink for a year, he's never going to hit anyone again in his life, and the court does not believe he is a danger to society in any way. He's missed his NCEA, missed his last year of school, lost his peer relationships, and was under charge of manslaughter for 3 months.

That's the only bit the judge can convict on. The issue being if that's worthy of conviction, on top of what's already happened to him, how would that conviction effect an 18 year old, as compared to the scale of the assault against everyday events. Proportion. Justice. Eh.

Winkelmann J,

But I wish to make a final remark. Nothing in these sentencing notes should be taken as an endorsement of your actions. Fights amongst school children may be common, but that does not mean we should tolerate them as a society. Every act carries with it the risk of unexpected, even grave harm. All too often the Courts deal with consequences of a single blow causing serious injury and even death. It may well be that schools should provide education as to the risks of fighting. This is especially so in a climate where so much violence, severe violence even, is portrayed in the media in drama programmes and even in sports on a daily basis. I hope that these events and other recent incidents are the necessary spur to action for that.

quoth the judge, there's more good stuff in there too. Read it.

Anyway, if kids tell you to bugger off, tell their school, their parents, their peers, the local shop owners, the local newspaper (letters to the editor and stuff), and before you know it there'll be those same kids turning up to apologise to you. Society is pretty wonderful if you let it know what's going on. P.S. some of the parents will tell you to bugger off too, that's something else you can let everyone know should it happen.

Which is to say, use your words. Like M. should have known to, in a slightly better world.

The court has decided the offence didn't merit a conviction -- and we don't let the Crown challenge that in general. So why should this one form of decision be challengeable?

To me, this seems more like a sentencing exercise than a conviction exercise. We let the Crown appeal "this offence doesn't warrant imprisonment", and I can't see that this assessment is fundamentally different from that.

I do have concerns, but thinking about it, I think they're mostly rooted in a concern about whether the Crown should be able to appeal at all.

I agree that a lot of the concerns I have are mostly based in a general distrust of (Crown) appeals in criminal cases, in my case coupled with a general dislike of the whole concept of a discharge without conviction as way of mitigating the severity of the criminal justice.

there's more good stuff in there too. Read it

I did, and this stands out:
I consider that there is a real and appreciable risk that your transition into adulthood, given your current prospects and educational ambitions.

"Current prospects" seems to translate into 'golden boy with rugby career'.

I had a person who worked for me some time back, because of his family background he hardly went to school from 12 years onwards, so his prospects wernt good, but he changed that and now in his middle twenties has a good trade and good future ahead of him.
M seems to have been very lucky that the court could only 'see' a minor assault but was dealt with by the Chief High Court judge. Im surprised this case wasnt sent back to the District Court where the judges are more used to this type of offending. But of course the Magic Carpet doesnt work this way for people from the right background.

True, Steve. AFAICT, our justice system says that a rich man losing 100% of his high-status executive job is a bigger punishment than a poor man losing 100% of his flexible hours minimum wage job. The judges probably aren't free to ignore that.

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

Having said that, how many 17 year olds do we have on community service for minimal-injury fights in school? Because I'm imagining it's zero. Someone would have to point me to some convictions first, even the police trying a case, before I'd believe this particular one stood out from the crowd. Maybe there's some male-on-female cases could compare for the age difference?

Can't really get outraged at someone not getting a penalty that no one gets anyway. Maybe I'm out of date, but most of my school would've been in court, at least one of them. Myself several times, no doubt, before the days of ubiquitous portable cameras to show my side of things.

Can anyone explain why the law keeps that particular ruminant rather than, say, a camel?

Yeah, l know, l had to say it. Although a camel is a ruminant an ass is not. Which is why the law has no stomach for recidivists.