Hard News by Russell Brown


Judicial caprice is no way to pursue law and order

Last week's news that Kaikohe community leader Kelly van Gaalen had been sentenced to two years prison in the Whangarei District Court for possession of cannabis from two plants, with no evidence of commercial supply, has rightly and understandably caused outrage.

Van Gaalen's lawyer had told the court of 32 character references provided to him, including those from a former mayor, a principal and a pastor. When van Gaalen was honoured with a Local Hero medal in the run-up to the New Zealander of the Year Awards last year, this was the citation:

As chair of the Kaikohe Community Arts Council, Community Board Member and Promotions Co-ordinator of the Kaikohe Business Association, Kelly has been responsible for a number of major projects beautifying Kaikohe. She has also helped develop a number of events such as Sculpture in the Vines and the creation of Santa's Grotto. Her latest project was to install planter boxes and seats around town. In her role as community board member, Kelly was instrumental in developing the Monument Hill gardens.

It would not be going too far to describe her as the soul of the town. Evidence was given that since she had resigned her roles after being charged, most of these projects had ground to a halt.

Van Gaalen was charged after her husband, home alone at the time, was the victim of a violent home invasion in July last year. After he was able to raise the alarm, police arrived – and found the pot:

However, when police arrived they discovered a bucket of dried cannabis and more in a snaplock bag. In total it weighed 684g.

Charges against Mr van Gaalen were dropped when his wife took responsibility for the cannabis and said it was hers. Her claim that it came from two plants, one of which had gone particularly well that summer, is quite plausible. It's notable that the police did not report what they found as cannabis heads. I'll go out on a limb and guess this was not groomed, commercial marijuana and that most of it was some cabbage in a bucket.

As Jack Tame notes in the Herald, the police presumably had the option to "use discretion and destroy the drugs", which might have been reasonable in the circumstances. But they laid a prosecution of possession for supply. Crown prosecutor Catherine Gisler then asked the judge to jail van Gaalen for three years, saying deterrence was important. Perhaps both parties felt it was not their place to exercise discretion.

But in our system it is certainly the place of the judge. So it was sickening to read that Judge John McDonald claimed to be powerless in the matter:

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.

"It is not for this court to comment whether that is a just law or not," he said ...

Judge McDonald gave her credit for her previous good record and "extremely worthwhile contribution", but said he had to be consistent with sentences imposed for other, similar offences.

"To say this sentencing has troubled me is an understatement," he said.

This is, simply, bullshit.

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. We can look at how another judge in the Whangarei High Court was able to exercise discretion in the case of a man who actually was busted in for commercial supply of cannabis. The Crown sought the same sentence as it did for van Gaalen, and even Doug Blaike (who also defended van Gaalen) was angling only for a lesser jail sentence. But Justice Paul Heath did not send the man, a solo father, to jail.

In the same week as van Gaalen was sentenced to jail, in Westport, Ian Alfred Cole, who was convicted of cultivating cannabis and possessing it for supply (in considerably greater quantities than van Gaalen had) was sentenced only to home detention. Cole was caught with all the trappings of commercial supply and had pleaded not guilty. He also had LSD in his possession.

In 2011, Judge McDonald himself sentenced a couple who admitted cultivation and supply (not only of cannabis, but party pills) to only six months' home detention.

Judge McDonald's claim that his hands were tied in van Gaalen's case was not only risible and untrue, it was cowardly.

This is perhaps the real problem with the law as it stands. Kelly van Gaalen's story does not make a lie of Cam Price's recent Salient story arguing that police use of discretion was becoming a de facto decriminalisation of cannabis in New Zealand. That's happening in many cases. But it highlights the chaotic situation where a woman with a very strong case for a sensible and sensitive sentence can fall prey to a judge who appears very fond of his own reputation as a tough guy.

That law needs to change. Leaving its enforcement up to discretion is simply an invitation to caprice. And caprice is no way to pursue law and order.

For now, Kelly van Gaalen is appealing her sentence, and friends and family have set up a Givealittle campaign to help fund her her defence. I will be contributing to that campaign.

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