Legal Beagle by Graeme Edgeler

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Legal Beagle: On Gell-Mann Amnesia; or You Suck at This

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  • Fen Tex,

    All the stuff about inaccurate reporting and thereby ill applied responses aside, with regards to this...

    The sentencing seemed utterly unremarkable.

    ...what does it seem when you weigh the sentencing in light of the true facts?

    I infer that if it seemed unremarkable for a lesser charge then it may seem remarkable in some way for a more severe charge?

    Christchurch • Since Oct 2014 • 18 posts Report Reply

  • Russell Brown,

    The charge of assaulting a police officer acting in the execution of their duty carries a maximum of six months’ imprisonment. But the words do also describe the elements of the offence of aggravated assault. Such double-ups aren’t that unusual: the elements of summary offences act common assault (max 6 months) and the elements of the charge of common assault in the Crimes Act (max 1 year) are identical. But nonetheless, it is a charge labelled as aggravated assault in the the Crimes Act that Nikolas Delegat was convicted of.

    I had to scan this twice before I understood it, but thank you for working it out.

    I was puzzled yesterday when I read the judge's ruling on the application for a discharge without conviction, which says this:

    He submits that the views of the principal victim would have been different if she had received the apology letter that had been written, that I should take into account that the Crown has seen fit to reduce the charge markedly from a charge carrying a maximum sentence of seven years’ imprisonment to one carrying a maximum of three years.

    I'd been trying to work out how aggravated assault could have been this original charge carrying seven years' imprisonment.

    I'd also been puzzled as to why community detention wasn't considered – but of course it is, rather briefly, in the sentencing notes:

    The issue is do I give you community detention? I understand (and I could have this totally wrong though) that you intend to leave Otago, which has this drinking culture, and do your studies in either Auckland or Waikato. That is a decision for you but that causes difficulties about community detention and having any ability to control or have input into how you are going with treatment programmes and plan. Somewhat against what I would normally do in the circumstances that confront me here, I am going to deal with you by the imposition of community work.

    So Delegat was able to avoid community detention by saying he'd move to Auckland (where the family home is), which would present difficulties for the Dunedin court in monitoring his detention? Is that what this means?

    And I'm a bit confused by the comment about "ability to control or have input into how you are going with treatment programmes" when the judge has just basically said "I'm not going to order supervision because you come from a good family":

    I do not need to be starting to look at issues relating to supervision. You are well able to and you come from a sufficiently disciplined background to enable the issues you have to be confronted, treated and assessed; I am not going to do that. There are people who do not have the opportunities that are available to you that need the help from the services that are stretched to the utmost trying to provide them. I am not going to put you on supervision.

    So who's going to "control or have input into" Delegat's treatment?

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Graeme Edgeler, in reply to Fen Tex,

    …what does it seem when you weigh the sentencing in light of the true facts?

    Still basically fine, to be honest. We do try to keep first-time 18 year-old defendants out of prison where possible.

    To be honest, even with the higher charge with the three year max, a discharge without conviction still wasn’t totally impossible, as the discharge Hautahi Kingi ultimately received shows (his charge was assault with intent to injure, which is also 3 years max).

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Vivid, in reply to Russell Brown,

    So who's going to "control or have input into" Delegat's treatment?

    It say's in the discharge somewhere that he's been to/at Capri Hospital

    Wairarapa • Since May 2015 • 43 posts Report Reply

  • andrew r, in reply to Russell Brown,

    You might reasonably be surprised but often a judges sentencing notes particularly in the DC do not make compete sense, and even can seem contradictory in parts. In the HC a sentencing judge has often mostly prewritten their sentencing decn based on written submissions earlier filed by both crown and defence. The judge then tweaks it slightly after hearing Counsels further oral submissions on day of sentence hearing. The decision is then delivered so much more coherent.
    In the DC invariably delivered on the hop. The judge will have end sentence very clear in his/her mind, getting there is often a slightly different story.

    auckland • Since May 2007 • 99 posts Report Reply

  • Russell Brown, in reply to Vivid,

    It say’s in the discharge somewhere that he’s been to/at Capri Hospital

    Which is in Auckland. I don't get how moving to Auckland, where his family home and treatment centre are, would make monitoring so difficult as to preclude a sentence of community detention.

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Graeme Edgeler, in reply to Russell Brown,

    I’d also been puzzled as to why community detention wasn’t considered – but of course

    I've replied via email.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Matthew Poole, in reply to Russell Brown,

    I don't get how moving to Auckland, where his family home and treatment centre are, would make monitoring so difficult as to preclude a sentence of community detention.

    Graeme will doubtless correct me, but could it be because district courts are, for reasons that I don't entirely understand, discrete entities? Move to Auckland, no longer under the jurisdiction of the Dunedin court.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Russell Brown, in reply to Graeme Edgeler,

    I’ve replied via email.

    Thanks.

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Bart Janssen, in reply to Graeme Edgeler,

    We do try to keep first-time 18 year-old defendants out of prison where possible.

    Which I agree with entirely. The question I have is do the severity if the injuries and the inferred violence of the assault play any part in the sentencing.

    Two things really concern me about this boy, first is he kept on hitting after the woman went down at that point the only intent is to cause real harm. To me that suggests psychological problems. The second is that the attack was on a woman, so not a test of strength between immature male animals but something much more horrible.

    Auckland • Since Nov 2006 • 4451 posts Report Reply

  • st ephen, in reply to Graeme Edgeler,

    Oh FFS - " ultimately received ". If Kingi had been white he never would have been charged with 'assault with intent to injure' in the first place, let alone been sentenced to five months in jail.

    dunedin • Since Jul 2008 • 254 posts Report Reply

  • Fen Tex,

    We do try to keep first-time 18 year-old defendants out of prison where possible.

    The question is whether we treat all 18 year old first-time defendants the same. What is needed is statistics to compare suspicions against.

    Has anyone compiled the facts required (incidence of imprisonment for a first time offence for aggravated assault aggregated by race / age etc)?

    Christchurch • Since Oct 2014 • 18 posts Report Reply

  • Matthew Poole, in reply to st ephen,

    If Kingi had been white he never would have been charged with ‘assault with intent to injure’ in the first place,

    O'rly? Statistically speaking, the offender in this case is highly likely to be white.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    And, of course, Delegat was it seems, originally charged with injuring with intent.

    Also, Kingi isn't really in a position to argue his assault did not intend injury, given he admitted that when he pleaded guilty.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Rich of Observationz,

    A few things:
    - while the methodology for sentencing might be designed as fair, it's much more likely that a rich, white defendant is going to meet the criteria for leniency than a poor, brown one.

    - NZ's problem is acceptance of violence, not (so much) abuse of alcohol

    - allowing a discharge with conviction for violent offences reinforces this. I'd like to see that option abolished, unless it can be shown to be manifestly unjust to convict because of the circumstances of the offence, not the circumstances of the defendant. (Maybe that should be balanced with a complete erasure of a record after some years good behaviour, including non-notification of foreign countries).

    - why are there two offences based on the same conduct?

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

  • Lucy Stewart, in reply to Bart Janssen,

    The second is that the attack was on a woman, so not a test of strength between immature male animals but something much more horrible.

    ...because it would have been materially less horrible if he'd hit a male police officer and continued to hit him after he was unconscious, putting the officer in hospital for two weeks?

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • Graeme Edgeler, in reply to Lucy Stewart,

    putting the officer in hospital for two weeks?

    That's another problem with some (although this time, not all) of the reporting. I understand the hospital stay lasted 15 hours, not 15 days.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Lucy Stewart, in reply to Graeme Edgeler,

    That’s another problem with some (although this time, not all) of the reporting. I understand the hospital stay lasted 15 hours, not 15 days.

    Ah, OK, I'd only seen the 15 days reported. Still, an overnight hospital stay is not a small thing.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • Sacha, in reply to Bart Janssen,

    he kept on hitting after the woman went down at that point the only intent is to cause real harm

    IANAL. Is that what counts as 'aggravated'? It disgusted me.

    Ak • Since May 2008 • 19683 posts Report Reply

  • Sacha, in reply to st ephen,

    If Kingi had been white he never would have been charged with 'assault with intent to injure' in the first place

    I would hope anybody who thrusts a broken bottle at a person's throat half a dozen times is charged with at least that. How can such a person reasonably claim not to expect it would likely cause severe injury or even death as in that case?

    Ak • Since May 2008 • 19683 posts Report Reply

  • Graeme Edgeler, in reply to Sacha,

    IANAL. Is that what counts as ‘aggravated’?

    The Assault is Aggravated because it was done with the intention of interfering with a police officer doing their duty.

    Aggravated assaults also include assaults for the purpose of escaping or avoiding arrest.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Kevin McCready,

    You all suck. Smiley. You've missed the chance to say: Jail is the Crime. Why? Revenge mentality is dumb. I spent 8 years of my professional life in jails in various roles. We DO NOT NEED jails. The deterrence argument is proven rubbish. For the tiny number of dangerous humans we need humane mental health facilities. Read Prof John Pratt, Contrasts in Punishment.

    Auckland • Since Jun 2013 • 119 posts Report Reply

  • Sacha, in reply to Graeme Edgeler,

    thank you

    Ak • Since May 2008 • 19683 posts Report Reply

  • Sacha,

    Duncan Garner has some reckons.

    I went searching for one final case to compare to Delegat's sentence. I found it in the case of Louanne Huingarangi Edwardson, 30 - who was jailed for 20 months in 2011 for injuring a policewoman who had tried to help her when responding to a domestic violence callout.

    Edwardson was drunk and lashed out with her feet, kicking the officer in the face and body, breaking her jaw and cracking several ribs. She was convicted of injuring with intent, resisting arrest and obstructing police. She isn't white and she didn't have a QC defending her.

    Delegat walks the streets. Edwardson did time. I rest my case. The rich white kid got off lightly - no matter what the fancy lawyers say in defence of the so-called justice system.

    Ak • Since May 2008 • 19683 posts Report Reply

  • Kevin McCready,

    The usual Duncan Garner. He just doesn't get it that jail is the crime. Pity. Someone in his position has a responsibility to inform himself about best practice in criminology.

    Auckland • Since Jun 2013 • 119 posts Report Reply

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