Shoot ’em and throw away the key

By   /   April 23, 2015  /   7 Comments

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The confused, disembodied head of the client slumped forward on the screen so that only his pale scalp showed.

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The confused, disembodied head of the client slumped forward on the screen so that only his pale scalp showed.

Having told him my name, I’d explained that this stranger in an ancient leather motorbike jacket – me – had some news. The sacred relationship between him and his old lawyer had ended. He’d stared, slack-jawed in disbelief when I’d told him I was his newly-appointed legal aid lawyer, there to assist him with an argument the next day over whether he could grow two million dollars worth of dak in his shed in a year.

The man was clearly intelligent. The file revealed that. He was just trying to make his way in the Far North, doing what people do to make ends meet or, for those still with hope, daring to try to get ahead with an operation like his.

He looked up, his sun-deprived face now grey with hopeless resignation. Looking hard at the screen, he quietly asked the perennial question, “What’s going to happen to me?”

That is what everyone wants to know when they go to court in the morning. It’s what I want to know. It’s what the defendant wants to know. It’s what the victim wants to know as well as everyone else involved in the process. Consistency is one of the qualities urged upon judges. If they’re inconsistent, they’re quickly pulled up on appeal. Only with consistency can there be predictability.

I told him that he might feel very concerned about what he’d heard and seen in the last five minutes on the TV from the instruction suite at Mt Eden Corrections Facility. I assured him I would wear a suit the next day. His worried face cracked a weak smile. I told him the lack of time to prepare would mean we should be able to get an adjournment. His eyes shone as a small flow of tears entered them. He blinked and one fell from each eye. He’d been on remand 13 months. “I just want it to be over,” he said, almost to himself.

I gave him my take on the case and explained, that given the meal that had been made of the file by Police and previous counsel, the judge sitting the next day wouldn’t be happy. The first lawyer to speak would be shut down midway through her first sentence. The judge wouldn’t want to hear from experts. This was Northland where the local judges’ bread and butter is dealing with the Police harvest of dope growers.

They’ve nearly heard it all when it comes to growth cycles, cultivation methods and, most importantly potential yields. Towards the end of last century the Court of Appeal asked Police to provide evidence of potential yields when it came to drug cultivation or manufacture. In an adversarial system, Police can’t be criticised for leading expert evidence about the huge potential yields under perfect conditions in the lab.

Most judges take such ambitious evidence with a grain of salt, in much the same way that the growers’ tales of plagues, locusts, failed crops and a kilo-a-month habit are discounted. Inevitably, I told him, there was intersection between the higher estimates of the Defence experts and the lower estimates of the Police. This, unsurprisingly, would coincide with where the judge saw it. Anyone who wanted to say otherwise would be cut off at the knees.

He looked intently at the screen in front of him, warming, I hoped, to his new scruffy lawyer. I told him we could expect the judge to say he wasn’t the slightest bit interest in the experts who had travelled from afar. He didn’t have to hear evidence which wasn’t substantially helpful. He would likely be sentenced on what he had done, not what he could have done in the future. We said two ounces a plant. The Police said six. Dollars to donuts said the Judge would say three. The amount of cannabis growing would have yielded about 14kg. He’d get around four years, given that he’d pleaded guilty at the outset.

He looked away from the screen where he’d been studying my face and down the barrel of the camera so I could fully appreciate his. “This is a hospital pass,” he said. “Nah,” I replied, just a bit of hot potato that with quick hands would end up on the judge’s bench or searing the lap of the Crown prosecutor. He laughed. He was happy, as was I when it panned-out as predicted the following day

During the course of the sentencing, a well know tariff case of Queen v Te Rewi was cited. This sets out categories of offending and the appropriate prison terms for those who fall within them. During the course of the hearing, another Court of Appeal decision became the topic of conversation – Queen v Kennedy where a man had received home detention for 10 kilos of cannabis. The Court of Appeal had said that in sentencing, District Court Judge Geoffrey Rea had got it wrong and that three and a half years was more like it. However, it dismissed the appeal, leaving the sentence intact because of the overall justice of the matter.

This is an example of a dynamic judge stretching the boundaries in a way which may reflect the community’s softening attitude to cannabis, but more likely demonstrates an increasing desire to see addicted dealers treated. While participation in the cannabis trade is still seen as serious offending warranting jail, there’s no doubt judges don’t like doing it and, where rehabilitation is being pursued by the client, can often avoid imposing it. But, of course, there is a limit to their discretion and I imagine no judge likes being reminded of that by a successful appeal against her decision.

An example of colouring just within the lines came in a recent decision of Judge Rea in Napier where a teen paedophile was sentenced to four and half years. At 17, the paedophile had repeatedly raped a five year old. He had approached the police, confessed and pleaded guilty.

No doubt following the Court of Appeal tariff case for rape – Queen v AM – he arrived at a starting point of 12 years’ prison. Having appeared in front of this judge countless times, I have no doubt that he carefully examined the mitigating features laid out in the Sentencing Act and arrived at an end sentence that did not satisfy the Defence’s plea for Home Detention, but which will withstand appellate scrutiny.

The Dominion Post story which did the rounds.

on Facebook attracted howls of indignation as people bayed for blood – the judge’s as well as that of the defendant and his lawyer. The uninformed comments were saddening to read. The abuse was exactly the same kind of stuff that defence lawyers have to endure as they go about their often unattractive work.

Any efforts to point out the rules were immediately met with accusations of being complicit in paedophilia. As far as the mob was concerned, the DomPost news story told them everything they needed to know.

The purported rights of the victim were their soapbox and no matter how much it was explained that victims are best served by defendants pleading guilty, the call for vengeance continued, even extending to talking about possible rape of the judge’s daughter.

At that point I gave up arguing with those who want to pillory the judge, rape his daughters and burn the castrated defendant at the stake.

In a sentencing exercise like this, criteria are followed not only from Queen v AM, but also from the Sentencing Act. The list of factors – which include guilty plea, remorse, youth, previous record, rehabilitative steps and cooperation with the court process are just some of the factors. The probation report, psychologists and psychiatric reports, victim impact statements, submissions from the Crown, submissions from the defence, character references and the like all form part of the court file. Only when the judge is familiar with all the documents can she make an informed decision. Anything less would be to prejudge. And that’s exactly what the shoot ‘em and throw away the key brigade are bringing to the table. Ignorance of these documents and making judgment in the absence of considering them is simply prejudice.

Ignorant prejudiced people don’t need to know the facts. They spit their hate regardless, for they are not after justice, but blood and revenge. They do not care about the benefits of victims not being subject to court proceedings. They do not care about exposing children to lawyers. They do not care about a young child crying in a windowless room as her misery is replayed on six television screens for strangers to see.

They do not care about the treatment of paedophiles which dramatically reduces reoffending rates. They do not care about the children who untreated paedophiles go on to rape.

As I lurched from my cannabis cultivating case into my next matter, for a paedophile, I paused to reflect on how good it was to do cases where everyone was a consenting adult. I gently cross-examined the now young woman. She was adamant and spontaneous, fiery and indignant. It gave me pleasure to see that her spirit wasn’t as crushed as it is with so many in her situation.

In contrast, my evasive client wasn’t believed by the judge as he assured him that he stopped having sex with the girl when he discovered her age. He was jailed in short order.

The trauma experienced by victims in court shouldn’t be underestimated. It makes a big difference to them when their attacker pleads guilty. It’s a brave thing, too, for a paedophile to plead guilty, for it condemns them to a lifetime stigma. It’s hard to argue there’s been a miscarriage of justice when you’ve pleaded guilty and confessed to the crime.

So, despite the cries that I’m somehow complicit, I say good on the young man who went to the Police, identified and admitted his crimes and then went to court and pleaded guilty. And went to jail. I say he’s brave and that by doing this he has shown a glimmer of hope for his rehabilitation. And to Judge Rea who recognised this, I say more power to your arm.

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About the author

Kelly Ellis

Contributor

A staunch human rights advocate and barrister, she ran on the Labour ticket in that electorate in 2014. When not working or politicking she plays with old cars and motorbikes, sails, fishes, cooks or hides out on her boat.

7 Comments

  1. e-clectic says:

    Another fine piece – thanks for shedding light into a world most of us don’t see.

  2. Liberty Bell says:

    the justice system that I experienced is racist and is filled with a lot of deviant lawyers and prosecutors and the Judges are not that shit hot themselves and police are always telling half truths or just down right lies and during a trial its not about the truth its about who the most convincing bullshetter is that determines incarceration or liberty.

  3. Kathy says:

    Spectacular piece, thoughtful, intelligent, powerful. Empathy is in short supply these days, brought a tear to my eye to read it here.

  4. OnceIwas6 says:

    It is easy to have these opinions when you are not on the receiving end of the behaviour of a paedophile. I am almost 50 years old, and when I was 6 and in state care I was, like the 5 year old in this case, raped by an older child.

    This young man will do 4.5 years, his victim will do a lifetime. What it will do to her is beyond the ability of anyone who hasn’t lived it to comprehend.

    Because of the abuse I received at such a young age I normalised this behaviour – and so became a walking target. If the roastbusters had been around in my youth then I would have been one of their victims – but I wouldn’t have lost my virginity to them, that was taken when I was six.

    And what tears my heart apart is that nothing has changed in more than 40 years. We are still a country where children are abused by those who should know better, and where lawyers and police justify the injustice.

    May God have mercy on all of us.

  5. Mickomarvel says:

    I, too, carry the scars of childhood sexual assault – in my case a headmaster. I agree that it is a life sentence.
    I don’t see this lawyer as justifying the injustice.
    The case she speaks of is exceptional. A young man who realises the enormity of what he has done and who handed himself in. Dare I venture a guess that he may well be a survivor of his own abuse?

    Sexual exploitation of children is as old as humanity. What has changed over fourty years is that more children are aware of their rights in relation to adults, and there is a far greater chance that they will be listened to.

    Simply “throwing the key away” is not the answer, particularly when you are dealing with a paedophile who is actively seeking help.