Island Life by David Slack

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Island Life: The Guilt of Clayton Weatherston

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  • Steve Parks,

    That's a fairly narrow definition of insanity, and many people over the years have criticised here. In the Weatherston case a lot of people (well, me, anyway) would agree that the defendant is mad as a snake, but the legal defence of insanity was not available (google up M'Naghten rules).

    Neither should it have been. I understand the view, as others have also said, that someone can't really be considered "sane" when they do something like this - but that's a "day to day" sense of the word. Legally, someone being considered insane means that they are held not to be criminally responsible.

    I've seen nothing in this case that suggests that Weatherston should not be held responsible for his actions.

    Between this trail, and the recent case involving "gay provocation" I'm tending to agree with those wanting the provocation partial defense removed (other than as a mitigating factor at sentencing).

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Matthew Poole,

    What's the maximum sentence that can be imposed for murder? What's the maximum non-parole time? I did a quick google but couldn't find the answer.

    As others have said, the statutory maximum for murder is life, and the presumption is that life will be the sentence unless there are extenuating circumstances. Wasn't there a mercy killing recently where the judge passed a sentence of less than life?

    There's no maximum non-parole, but William Bell's 33 year non-parole from the sentencing judge was knocked down to 30 years on appeal. That has the effect of putting 30 years as the upper bound on pretty much any murder that occurs in NZ on even a semi-regular basis. On the more mundane level the Lundy sentence of 21(?) years is the really effective upper bound. Bell and Burton are both so far removed from the "average" murderer in NZ that their sentences are outliers.

    I think that the Weatherston sentence, once it's been appealed, will become the next effective sentencing boundary for very violent murders. His, and the guys who shot Sgt Wilkinson last year.

    Also, to clarify a point that I know confuses people, even my fourth-year law-student flatmate so I'm assuming it's fairly widespread, preventative detention is not an option for Weatherston and wouldn't produce a different outcome even if it were. PD is for certain crimes of violence where the maximum sentence is finite. Where the maximum sentence is life, PD is not available because life is indefinite in its own right.
    Burton got PD for aggravated assault (aggravated wounding?), and life for murder. Either will see him serving a very lengthy period of time at the Government's expense, but the murder alone would've achieved the same result.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Craig Ranapia,

    and the recent case involving "gay provocation" I'm tending to agree with those wanting the provocation partial defense removed (other than as a mitigating factor at sentencing).

    I'm not terribly comfortable with provocation full stop, even as a "mitigating factor" at sentencing, but accept that there are far from simple arguments on both sides. Open to being convinced otherwise.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Alan Perrott,

    '' I'm sure we'll see one in this weekend's Herald on Sunday.

    That would require an element of self-knowledge that I doubt you can have as an employee of the Herald without dying of shame. :) ''

    hang on Craig, I had a witty rejoinder stuffed in my sock somewhere...if I can just reach it...ah, there it is.

    fuck you.

    oh, and with a :) just to take the curse off it.

    Auckland • Since Nov 2006 • 438 posts Report Reply

  • Craig Ranapia,

    hang on Craig, I had a witty rejoinder stuffed in my sock somewhere...if I can just reach it...ah, there it is.

    fuck you.

    Are you sure you could afford me on expenses? And if I call you 'Viggo', don't get too freaked out. :)

    But seriously, Alan, I'd be really pleased if the media did some serious self-examination about their complicity in a dead woman's character being assassinated by the man who stabbed and cut her 216 times. Or the distasteful canonisation of David Bain. But you will give me a long slow deep dicking before that happens, I suspect.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Alan Perrott,

    oh, you charmer.

    Auckland • Since Nov 2006 • 438 posts Report Reply

  • Craig Ranapia,

    oh, you charmer.

    And that's before the flowers, dinner and dancing. I'd even put on a clean shirt...

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Kyle Matthews,

    I'd even put on a clean shirt...

    Alan apparently has at least one sock, so it's practically a match made in heaven.

    Since Nov 2006 • 6243 posts Report Reply

  • Michael Holt,

    Does anyone know what the legal aid bill for this was? What is Kerr's hourly rate? And her teams? Would the defence team have been influenced by the amount they could charge to legal aid for running it in the way they did?

    Auckland • Since Jan 2009 • 16 posts Report Reply

  • Alan Perrott,

    I think the line is 'mate, did you lose a sock?'

    'nah, found one.'

    Auckland • Since Nov 2006 • 438 posts Report Reply

  • Carol Stewart,

    Meanwhile, could the papers (and the rest of the media) stop posturing about the appealing trauma Sophie Elliot's family went through

    I'm hoping you meant 'appalling' there, Craig.

    while you've got her parents performing like dancing grief monkeys, and you still can't stop yourself publishing every salacious titbit you can dig up?

    No fair. I don't think anyone else should judge how other people handle grief.

    But I completely agree with you about the media's complicity in character assassination. Interesting to see the Herald today have gone all out to cover Ms Elliot's talents, accomplishments and potential. It seems a bit craven to me that they waited until after the verdict.

    Wellington • Since Jul 2008 • 828 posts Report Reply

  • Matthew Poole,

    It seems a bit craven to me that they waited until after the verdict.

    Yes, possibly, but they may also have been trying to avoid raising Justice Potter's ire by publishing material that could, conceivably, have had the appearance of trying to influence the jury. Reporting Weatherston's bile-tainted utterances from the stand, no matter how distasteful their coverage may have been, was at least not potentially putting material before the jury that wasn't evidence.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Kyle Matthews,

    Does anyone know what the legal aid bill for this was? What is Kerr's hourly rate? And her teams? Would the defence team have been influenced by the amount they could charge to legal aid for running it in the way they did?

    She and King represented some friends of mine who were arrested by police for 'rioting' during the protests here on campus on September 28th 1993. I know that the defendants and the students association couldn't afford to pay her proper rate and she didn't bill for anything near the total number of hours. She's also done a lot of voluntary work for the Law Society over the years.

    It's a tremendously long bow to draw from 'wow this defendant was a complete asshole on the stand' to 'it's their lawyer's fault' to 'the lawyer did it for the money'. If you're a criminal lawyer then you are going to represent some really bad sorts. You can advise them, but in the end you have to follow their instructions as to their defence, which might be what happened in this case.

    Ablett-Kerr has also represented Peter Ellis remember.

    Since Nov 2006 • 6243 posts Report Reply

  • Tim Michie,

    As it seems clear to me Weatherston thought himself well smart enough to introduce what the jury might conceive as reasonable doubt could his sentence also reflect his contemptuous attitude to the court?

    Auckward • Since Nov 2006 • 614 posts Report Reply

  • Justin H,

    I entirely agree that Weatherston's defence was repugnant, however I also think the judge bears some of the blame as it was in her discretion not to allow Weatherston to run provocation as a defence, especially where there was a weak evidential basis for it, (even more so after reading comments by her ex BF). The judge has a history of pretty bad decisions and she has cast provocation in an unecessarily bad light. It is an important acknowledgemnt that in some circumstances, ordinary people lose self control. I add that this case is not one of them.

    However, by way of hypothetical example, without provocation, if Sophie’s mum went into the room during the attack and knocked Weatherston out with a baseball bat, that would be self-defence. However, once Weatherston was clearly incapacitated (and thus no longer a threat), if she hit him again on the head to intentionally kill him after what he had done to Sophie (an ordinary human response to such evil), that would be murder requiring (under present caselaw) a life sentence. If she could rely on provocation, it would certainly succeed and the judge could sentence her to anything they saw fit from a discharge without conviction through to a fine, community service, or jail for any period up to and including life, if the circumstances required.

    Provocation must stay, albeit perhaps not in its present form.

    Since Jul 2009 • 3 posts Report Reply

  • ScottY,

    Justin H, murder no longer has a mandatory life sentence. If the scenario outlined by you had occurred I think it highly likely the judge would have given the mother a lighter sentence, or none at all.

    Remember also that a judge can impose life for manslaughter. So the label we put on the offence does not have to reflect the length of the sentence.

    That's why there's no reason to retain provocation. The current law allows for mitigating circumstances to be taken into account.

    West • Since Feb 2009 • 794 posts Report Reply

  • Matthew Poole,

    However, by way of hypothetical example, without provocation, if Sophie’s mum went into the room during the attack and knocked Weatherston out with a baseball bat, that would be self-defence. However, once Weatherston was clearly incapacitated (and thus no longer a threat), if she hit him again on the head to intentionally kill him after what he had done to Sophie (an ordinary human response to such evil), that would be murder requiring (under present caselaw) a life sentence

    First, in that situation it would be defence of another, not self-defence.
    Second, the case law on giving less-than-life sentences for murder is almost non-existent. The change to the statute is so recent, and cases that qualify so infrequent, that there's been no real opportunity for such law to develop. In that situation the judge would very likely give a greatly reduced sentence, especially if the defence did a halfway-competent job and the defendant were found guilty of manslaughter - highly likely, in those circumstances, regardless of her actual intent when striking the second blow.

    In reality, though, the police would be very unlikely to bring charges unless they had her on tape saying "I hit him again because I wanted to kill the bastard." Use of lethal force to meet lethal force is legal in this country, the protestations of Insensible Sentencing notwithstanding.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Kyle Matthews,

    Use of lethal force to meet lethal force is legal in this country, the protestations of Insensible Sentencing notwithstanding.

    I believe they're still focused on lethal force to meet nonlethal tagging.

    Since Nov 2006 • 6243 posts Report Reply

  • Joe Wylie,

    This gloating piece of prison gossip is really the pits.

    flat earth • Since Jan 2007 • 4593 posts Report Reply

  • David Slack,

    You have to admire the efficiency and productivity of the journalism, though. A headline that ends with a question mark will surely shave many hours off the time it will take you to get a story written.

    Devonport • Since Nov 2006 • 599 posts Report Reply

  • Justin H,

    Less than life sentences for murder, on the present case law, only applies to suicide pact killings. It has never been extended any further and does not look likely to be judging by English and Canadian experiences.

    Since Jul 2009 • 3 posts Report Reply

  • Sofie Bribiesca,

    This gloating piece of prison gossip is really the pits.

    Just quietly, exactly what I expected. Prison and inmates operate in the world unto themselves. There is an entire justice system within the walls and the wardens are well aware of that. The inmates will have their own sentence for Weatherston. Noone likes a smart arse, so I imagine that will be put into perspective now that he is there. It may take time now that he is segregated but time is what they have and it will not be forgotten.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • ScottY,

    The Sentencing Act has only been around since 2002, and as far as I know the NZ courts have not had to deal with provocation as a matter reducing a sentence from life, because the provocation partial defene has been available during trial.

    The UK has a mandatory life sentence for murder, and I think Canada does too, whereas NZ does not. The UK and Canadian experiences have arguably limited relevance, because their sentencing laws are different.

    I think it likely that if the partial defence is aboilished the NZ courts will take that as a signal from Parliament that provocation is a matter to be addressed at sentencing, and will entitle a sentence other than life in the right circumstances.

    Incidentially the UK's law commission has recommended its provocation laws should be repealed, provided the mandatory life sentence for murder is also repealed.

    Canada's commission made recommendations similar to our own Commission's 25 years ago. They're yet to be implemented.

    West • Since Feb 2009 • 794 posts Report Reply

  • Kyle Matthews,

    Just quietly, exactly what I expected.

    Aye. That's hardly even news. He'll have been through the communal living unit so fast that his feet will have hardly touched the ground on the way to segregation.

    Since Nov 2006 • 6243 posts Report Reply

  • Craig Ranapia,

    No fair. I don't think anyone else should judge how other people handle grief.

    Um, I think its entirely fair to gag a little at The Herald running headlines like 'Weatherston ignored a nation's horror' (while being quite happy to print every excruciating titbit of death porn) while the Elliot family have been paraded through the media without pause over the last day. I just get a little pissed at the way media folks act is if they're detached spectators, rather than active (and often less than savoury) participants.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

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