Hard News: Judicial caprice is no way to pursue law and order
151 Responses
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Rosemary McDonald, in reply to
There is no record of this in the local papers, even though we know the date of the offence, there is nothing about the crime or the prosecution of the culprits.
Something very, very fishy about that.
Conspicuous by absence.
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Rosemary McDonald, in reply to
http://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11408241
Three Kaikohe men have since been jailed for their part in the attack.
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Katharine Moody, in reply to
Good grief, so many kinds of wtf there, picket Parliament yes, law firms do not make the law, parliament does.
Email your MP or the MP for that constituency. You have a choice of two, Kelvin Davis or Winston Peters.Yeah, but if I picket Parliament – it’s just another same old/same old public response to a social injustice. The more effective anarchistic actions in my experience are the novel approaches.
Think kauri tree in the Waitakere Ranges. Would the tree still be standing had the protest taken to the steps of Parliament?
PS. Thanks for the idea - sending those emails now.
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Thank you David Tong for taking time to make your points. It has certainly helped me understand the issue(s) better.
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Alfie, in reply to
Think kauri tree in the Waitakere Ranges. Would the tree still be standing had the protest taken to the steps of Parliament?
Actually that issue has gone a bit sour. Back in March the landowners -- John Lenihan and Jane Greensmith -- wrote an open letter to Aucklanders saying that the tree would be saved. Hallelujah! Michael Tavares, the good guy who climbed and saved the kauri, came down and pleaded guilty to trespass. Deal done.
Or maybe not. Just a few months later the property developers seem to have reneged on their offer and have applied to have environmental restrictions on their three Titirangi properties lifted. Lenihan's submission to Auckland's Proposed Unitary Plan refers to "an illegal occupation and protest."
"If occupation and protest which included councillors, local board members and council staff had not occurred, then all vegetation would be removed and there would be no argument," he said.
Sorry for the deviation from an important subject.
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Steve Barnes, in reply to
Three Kaikohe men have since been jailed for their part in the attack.
Thanks for that Rosemary. I thought I'd done a fairly comprehensive search but....
I found it disturbing that their Lawyer, Doug Blaikie and my sympathies go out to him and his family for his current health issue, felt confident enough to say "I don't have a problem with it. And when the jury hears the evidence, they won't have a problem with it either," assumptions are well known to make asses of the best of us.
It reminds me of a case I, unfortunately, found myself the subject of, criminal damage.
As a builder I quite often came across client who knew just how hard it can be to get paid for your work. In this instance I had completed a section of the job which required an interim payment. The client decided that she wasn't going to pay because she knew she could get away with it so I "undid" the work. I was arrested and had to go to court. This was back in '95, the time of the Auckland power cuts, my lawyer informed me that the court was not sitting on that friday due to power outages and that the case had been set back until Monday.
Monday I turn up at court and was immediately arrested and locked up for not appearing on the Friday. When my Lawyers Lackey eventually turned up he said, "Oh, it's just a simple drug case, nothing to worry about. The clown hadn't even read the brief.
Shit happens eh?. -
Katharine Moody, in reply to
Like it or not, the police, prosecuter, and judge would probably say the same thing regarding the bucket of dope in the house.
But not about the dozen beers.
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Steve Barnes, in reply to
But not about the dozen beers.
Oh my God....
They had BEER?
Won't somebody think of the dear sweet vulnerable children?.
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Katharine Moody, in reply to
lead to mum and dad behaving out of sorts.
And worse, it sometimes leads to:
For every 100 alcohol or drug-impaired drivers or riders killed in road crashes, 50 of their passengers and 19 non-alcohol impaired road users die with them.
In 2012, driver alcohol was a contributing factor in 73 fatal crashes, 331 serious injury crashes and 933 minor injury crashes. These crashes resulted in 93 deaths, 454 serious injuries and 1,331 minor injuries.Jest all you want.
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Katharine Moody, in reply to
Won’t somebody think of the dear sweet vulnerable children?
http://www.ahw.org.nz/resources/pdf/Violence_F_Sheet.pdf
Indeed.
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Katharine Moody, in reply to
Shit happens eh?.
Not for this guy;
http://www.stuff.co.nz/national/crime/10232597/Drunk-driver-avoids-jail
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Katharine Moody, in reply to
You might have misread me.
Sorry!
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Rosemary McDonald, in reply to
Yep, and personally, with a shitload of prejudice, believe that parents need every brain cell unimpaired to do right by their kids.
This issue is not, IMHO, about Cannabis Law.
This is about gross inconsistency in sentencing within the framework of existing law.
I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense...to me.
I am, with this case, extremely frustrated.
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Katharine Moody, in reply to
This issue is not, IMHO, about Cannabis Law.
This is about gross inconsistency in sentencing within the framework of existing law.
I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense…to me.
Unfortunately, it is looking to me, like a guilty plea can score you a "get out of jail free card' for killing someone in this country. But a not guilty plea scores you a custodial sentence for growing a prohibited weed in your backyard - a victimless crime. It says something about how the law seeks the ultimate in submission by its subjects.
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David Tong, in reply to
And prosecuting lawyers don’t like that.
It's not the lawyers' choice. It's the law as set down by the Supreme Court, upholding a long-standing chain of cases from multiple common law jurisdictions. Pleading not guilty cannot legally be an aggravating factor, but pleading guilty is a mitigating factor that justifies up to a 25% discount in end sentence.
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Rosemary McDonald, in reply to
Pleading not guilty cannot legally be an aggravating factor
Hah! another time, another place, perhaps, I would like to tell you a wee story....
But...
I'm not in jail...(luckily)
And it shouldn't come down to luck for chrissakes...
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David Tong, in reply to
This is about gross inconsistency in sentencing within the framework of existing law.
I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense…to me.
The problem is that we're trying to make comparisons between sentencing judgments on only part of the facts without seeing the sentencing decisions themselves. So we don't know what factors were or weren't taken into account. What looks to us like inconsistency is - from my experience working in criminal sentencing - often Judges applying remarkably consistent principles to eternally varied cases.
Don't get me wrong - I've seen some totally perverse sentencing outcomes in my time. But most of these come down to oddities in the statutes drafted by Parliament, and frustrate judges and lawyers too. For example, for years, if you killed someone while driving carelessly you'd get a much lower sentence if the police chose to charge you for careless driving causing death than you would if they chose to charge you for manslaughter - even though the elements of each offence were almost identical. Similarly - moral panics around joyriding led to new offences being created for stealing and abandoning cars that had higher sentences than stealing cars to keep or sell. I'm not even sure if either of those have been resolved - it's been 4-5 years since I looked at either.
But I'm very reluctant to call sentencing cases inconsistent without reading the sentencing decisions. Without doing that, we're flying blind.
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David Tong, in reply to
Yes we have the Court of Appeal, the Supreme Court, but is there any ‘higher power’ who is able to intervene in cases like this where, on the face of it, there has been a significantly disproportionate sentence?
Apart from the Royal Prerogative of Mercy, which probably wouldn't be suitable here, the only option is an appeal up to the HC.
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David Tong, in reply to
However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.
Except without reading his sentencing decision and seeing what authorities he cited, we can't see if his hands were tied. From my own experience of cannabis sentencings and appeals against sentence, what he said rings true. I'm betting that he was pretty well ring-fenced by CA and HC decisions that effectively constrained his discretion. I don't know for sure, but it does look like a pretty straight forward application of tariff cases and established law.
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David Tong, in reply to
I agree that a less strident prosecutor might have recommended a community-based sentence. However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.
Except <i>R v Terewi</i>, the tariff case governing cannabis supply, makes a community based sentence inconceivable. The only options were imprisonment or home detention. Anything less would be appealed in an instant, and would be contrary to Court of Appeal authority.
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David Tong, in reply to
And yet in writing the original post it took only minutes to find the case of Ian Cole in Westport, who was sentenced in the same week to nine months home D and 150 hours community work – despite pleading not guilty and having been caught with all the trappings of commercial supply, $2000 cash, seven kilograms of cannabis and 20 plants and some LSD. The difference, I guess, is that a jury found him guilty of possessing for supply only the heads found in his car – but that was still twice what was found in van Gaalen’s house.
I remain extremely unconvinced that McDonald’s hands were tied to the extent he said. Also, why wasn’t the option of community work explored? It would seem a very appropriate way to deal with van Gaalen.
Cole seems to have been allowed to live in his house – and so were the Havelock couple who McDonald sentenced to six months home D after they admitted commercial dealing and growing, and selling BZP:
I said these things were extremely rare. You found some of those rare cases. Without reading the sentencing decisions in each and having the full facts, we can't explain why van Gaalen fell on one side of the line and they on the other.
Under <i>Terewi</i>, community work just wouldn't be an option. I agree that it sounds very appropriate, but I'm not in Parliament...
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Rosemary McDonald, in reply to
So, the Law is an ass, and a blind one at that....
'toon, please...
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10816925
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Alfie, in reply to
But I'm very reluctant to call sentencing cases inconsistent without reading the sentencing decisions. Without doing that, we're flying blind.
We ordinary Joes have to rely on reported cases David. And there are dozens if not hundreds of examples where more serious cases have received much lighter sentences. Surely the public prosector with the meth habit represents a worse threat to society than Kelly van Gaalen? Yet he only received a minor fine and no jail time.
I've seen gang members receiving lesser sentences than this for similar breaches of the same law. What message does that send to society?
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Katharine Moody, in reply to
Sorry for the deviation from an important subject.
It's very relevant to the functioning of anarchism as a political ideology: given the tree(s) are still standing.
I haven't got any particular moral position on the merits of that action - (I'm a bit more of a red than a green anarcho-socialist) - but it was a joy to see it (as an action in and of its own right) succeed.
A healthy, active civil society is crucial for democracy in the long term.
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chris, in reply to
The more effective anarchistic actions in my experience are the novel approaches.
Totally. With regards to the kauri, at the time I kept trying to calculate the size of the forest if all those hours spent climbing, petitioning and liking on facebook were instead devoted to planting, but it's not like kauri grow on trees.
Similarly with the pohutakawa 6, when their cuzzies ask them about things the trees usually mumble something about being jammed between a road and a carpark, limited space to root, constant noise, vibration and exhaust fumes, a pretty shit quality of life truth be told but they're stoked that they're valued enough in that state to be kept until the rot sets in.
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