Tag Archives: Justice

Differential Justice.

Posted on by
Reply

For some time now I have wondered about standards of justice in NZ. Coming from the US and Latin America it seems that all to often people convicted of serious crimes are handed fairly light sentences, including violent recidivists. I understand the importance of rehabilitation over punishment, but sometimes it seems that the Courts let very unpleasant people get away with their crimes.

I thought of this recently when I read the news about a teenager hit and run driver who killed a boy crossing a crosswalk on his bike and who not only did not show any remorse, but in fact posed for a social media photo in an orange jump suit and Halloween makeup, presumably as a joke on where she could be headed. She got 11 months home detention and 250 hours community service instead.

That seeming injustice brought home another recent court case, one in which a famous Blenheim winery was fined $400,000 for adding post-fermentation sugar to its export wine in violation of EU standards (to which much of the wine was headed). The winery owner, a general manager and a wine-maker were fined between $20,000 and $35,000 each for their role in the subterfuge, which involved 6.5 million liters of wine, 3.7 million of which was sent to the EU between mid 2013 and late 2015.

That seemed about right to me. The Crown argued for serious fines because it damaged the reputation of the entire NZ wine industry. The individual fines were high enough to send a message of warning to others so inclined to cheat for opportunistic advantage, and the company fine was presumably large enough to make a negative impression on its bottom line.

Contrast this judgement against that handed down to a Hamilton-based aerospace company that sold a utility aircraft to a Chinese aerospace company knowing that it would be on-sold to North Korea in violation of international sanctions. Because the plane had potential military as well as civilian applications (such as parachuting) and was seen at an air show in DPRK Air Force livery, the violation was of “tier one” seriousness. 

The Chinese aerospace company has in fact majority ownership of the Hamilton company and three of its executives sit on the company board of directors. The contract for the plane included post-sale parts supply and servicing by Hamilton-based mechanics, so the initial claims that the company had no idea that the plane was on-sold to the DPRK fell flat in court. In fact, the entire defence went from “we assumed it would be used in the PRC” to “we did not know where it would end up” to “we did not know about the sanctions” in a hurry. That also did not stand up to the light of prosecutorial scrutiny as the Crown demonstrated that the firm falsified export documents in order to get the plane on its way out of NZ. Selling the plane directly to the DPRK would have required a special export license and would have been prohibited by the international sanctions regime. Selling to the Chinese parent company incurred neither constraint.

In other countries similar “tier one” violations of the international sanctions regime have resulted in million dollar company fines and jail time for company executives involved in the sanction-busting. There are enough successful prosecutions of such violators in Europe, the US and the Commonwealth to provide the Courts with sentencing guidelines. So what did the rogue Hamilton company get for what is an egregious violation of international norms that potentially damaged the reputation of the entire NZ aviation industry?

A $50,000 fine and no punishment to any individual. In some circles where corruption is rife that would be considered to be the acceptable, if not normal price for conducting dodgy business dealings. But is that the way business is conducted in NZ?

In light of the very different sentences handed down in these two cases, my questions are this: which is worse, the sugared wine scandal or the sanctions-busting affair? Is deceiving commercial partners overseas worse than helping a rogue dictatorship with nuclear ambitions and an atrocious human rights record skirt measures emplaced to hinder its ability to continue unchecked? Is international sanctions-busting considered to be a lesser offence than playing sleigh of hand with a commercial export product?

Perhaps the laws on the books limit the types of punishment available to the Crown when it comes to sanctions busting by NZ firms but give wider and heavier range to the penalties for instances of corporate malfeasance that do not involve sanction violations. If so, then the laws needed to be amended because if anything violating international sanctions regimes is a worse reflection on a country’s governance than is cheating within private commercial networks . If not, then the justice meted out in these cases appears at odds with international precedent and compound the reputation damage done by the Hamilton aviation firm because it gives the impression that “tier one” international sanctions violators will be treated more leniently in NZ courts than unethical commodity exporters.

If one egregious Kiwi-based sanction-busting firm can get away with a financial slap on the wrist when caught, so too may others decide that is an acceptable price to pay in the pursuit of profit over principle. That is another area where the application of differential and universal justice comes into play.

Have some impunity with your privilege.

Posted on by
5

Extending the theme of short posts about current events, here is this one:

An up and coming sportsman gets name suppression and no jail time for filming a sex act with a women and posting it on the internet. In his sentencing the judge said that naming him and serving jail time would interfere with his athletic career even though the victim suffered significant emotional harm. The athlete/secret taper is ordered to pay a $2000 reparation to the victim–a day after he paid her that sum.

A case of domestic violence against a doctor in Auckland is thrown out of court and he walks free after his father-in-law pays Crown witnesses (the exact reasons are not specified in media reports but one could expect that whatever the reason this is a pretty straight forward example of pervasion of justice given that the couple had reconciled and wanted to “put things behind them”). The police say that they are “aware” of the payments but refuse to say anything else.

The Minister of Health attends a Vegas themed fundraiser for Northcote Primary School in which parents partied with fake cocaine. He says revelations in the media are a “beat up” because the event raised $30,000 for the school. He claims that he did not see the faux coke and did not ingest. Apparently none of the parents involved thought anything was wrong with simulating drug use at a school function, and the Health Minister (of all people!) thinks it is all good because much money was raised. As a friend of mine mentioned, they would have made a lot more money if they had used real coke instead.

All of these episodes were made public in one day. What do they have in common?

Well, they follow a long history of instances in NZ where people of privilege, be it via sports, money, political clout or social connection, engage in and are later absolved of full consequence for behaviour that otherwise would be considered worth severe sanction. I am sure that readers will remember many such instances. What does this say about the supposedly egalitarian and honest nature of Kiwi society?

Or look at it this way: if the clandestine sex taper was mediocre at sports, if the doctor and his wife were recent immigrants, if the Northcote Primary parents were from South Auckland, and if the politician was an opposition backbencher, would the media coverage and outcomes be the same?

The Crown Gets Its Pound of Flesh.

Posted on by
42

I am surprised by the jail sentences handed down to Tame Iti and Te Rangikaiwhiria Kemara in the Urewera 4 case. I had expected substantial fines and at most community service sentences for all of the defendants. The same day the Urewera 4 were sentenced a doctor was fined $1000 for firing a crossbow at a tree 3 meters from a tent of sleeping children at a DOC camp site, so it seemed reasonable to me that people who discharged firearms in the vicinity of no one other than themselves would receive sentences in line with the good doctor’s. But, as it turns out, the Judge in the Urewera 4 case had a different line of reasoning, and it is worrisome.

Even though the Urewera 4 were not found guilty on criminal conspiracy charges, the judge who sentenced them, Rodney Hansen, repeatedly referred to them as if they had been. He spoke of an armed militia with leaders and followers, and he mentioned molotov cocktails–the possession and use of which they were not convicted of–as proof of something sinister going on the outskirts of Ruatoki. But the sentences were supposed to be for violations of the Firearms Act alone–six in the case of Iti, Kemara and Emily Bailey and five in the case of Urs Singer. So why did the judge bring in a line of reasoning at sentencing that is more appropriate to a guilty verdict of criminal conspiracy, and why the relatively harsh penalties for violations that, quite frankly, are fairly routine in some sectors of New Zealand society? In fact, the sentences do not distinguish between the types of firearms used by different individuals, so that those who handled a sawn off shotgun were treated the same as those who handled a bolt action .22. Bringing up the subject of molotovs, militias, purported bombing (but not bus-flinging) plans at sentences for Firearms Act violations is irrelevant and prejudicial.

Lew and I have written previously at some length about the discrepancy between this prosecution and the seemingly blind eye the Police and Courts cast on very similar bush antics by right-wing extremists who make no secret of their hatred for assorted ethnic and religious groups and who have proven histories of violence against those they hate. I shall therefore not repeat what we have said. But what I can say is that these sentences confirm to me that this Crown prosecution was about punishment and deterrence, not justice. One way or another the Crown was going to extract its pound of flesh from at least some of the original defendants, a process that not only involved lengthy delays in providing the defendants with their day in court (by over four years) and the admission of illegally obtained evidence,  but which also is designed to serve as a warning to others who might be of similar ideological persuasion and direct action mindset. As I have said before, the process was the punishment for the original 18, and these sentences are the final act in that process. It has not been fair, it has not been just, and other than assuage the primordial fears of conservative Pakeha such as Louis Crimp, the National Front and the closet Klansmen that inhabit the right-wing blogosphere, it does nothing to advance respect for the law and the concept of equal treatment for all.

Given that the sentences for Iti and Kemara appear to be disproportionate to the crimes committed, and that the judge’s reasoning was at least in part based upon tangentials that should not have been admitted at the sentencing phase, I would hope that they will be appealed and eventually reversed. Otherwise the conclusion to Operation 8 looks like another case of Pakeha utu on people who dare speak truth to power in unconventional, theatrical and ultimately silly ways.

 

HÄ«naki

Posted on by
3

HÄ«nakiI agree with Kelvin Davis’ criticism of the eagerness of certain Māori groups to be involved in owning and operating the new private prison, and I think it’s a strong and principled argument.

My clear preference is for no private prisons. But if there are going to be private prisons (and it looks like a certainty), then all else being equal, wouldn’t it be better if they were (part-)run by Māori, with a kaupapa Māori focus (on rehabilitation, restorative justice, etc)? As I remarked, and as Eddie C sketched in slightly more detail in comments to my last post on the topic, the incentives are screwy for private prisons and rehabilitation, it’s hard to measure and hard to manage and as a consequence rehabilitation is even less effective than usual. But I can’t help but think that attaching a cultural incentive — the knowledge that one’s whanaunga are actually or potentially involved — might change that picture and take a few of the harsh edges off the “business of punishment” model employed by mainstram private corrections agencies.

L

Torpedoes?

Posted on by
6

Paula Bennett’s damn-the-torpedoes attitude toward the Attorney-General’s advice regarding the Bill of Rights Act — and Idiot/Savant’s observation that this is just the latest bit of policy in breach of that act — has me wondering. What happens if there are torpedoes?

What happens when a widower has his benefit cut by WINZ, having refused a work test which a woman in identical circumstances would not be required to undergo? Surely he has recourse to sue WINZ for that breach. If that’s so, and it seems like in a civil society governed by the rule of law it should be so, the government will surely open themselves up to considerable legal liability by implementing and enforcing this sort of policy (quite apart from the symbolic side of such cases getting hauled through the courts, and so on).

Can some of you lawyerin’ types out there in the internets give me a pub-argument explanation of the issues in this situation?

L

Political Idealism trumps the Law.

Posted on by
45

The “Waihopai 3” have been acquitted. Their act of civil disobedience, which resulted in damage to one of the domes covering eavesdropping equipment at the Echelon Signals Intelligence (SIGINT) gathering station near Blenheim, was deemed by a jury of their peers to be justified because of their sincerely held beliefs that the listening post contributed to human suffering on a world scale.

This is a remarkable verdict. The Plowshares group clearly trespassed and clearly did damage to the dome (they cut through both a perimeter fence and then the dome in order to access its interior). But their motives clearly outweighed, at least in the minds of the jury, the criminality of their actions (the charge of burglary against them was a grave mistake on the part of the Crown). The defendants pleaded not guilty to the charges of trespass, burglary and criminal damage and left the court as free men and as an inspiration to other direct action activists discontented with the status quo. One wonders if this  decision will establish not only a legal precedent but also encourage others to follow suit in pursuit of anti-status quo objectives.

I must confess to being at a loss for an explanation. As I wrote in “A Brief Comment on Spy Bases and Civil Disobedience” over at Scoop, (http://www.scoop.co.nz/stories/HL0805/S00039.htm), active acts of civil disobedience involving direct action (as opposed to the passive act school of civil disobedience exemplified by Ghandi and followed by his adherents after he was murdered) are most often premised on the perpetrators willingly understanding that their actions are in violation of conventional law, and that their actions will be punished accordingly. More often than not they plead guilty in order to make their political case at sentencing, something that spares the taxpayer the court costs of defending the charges while at the same time providing a courtroom soapbox for dissemination of their claims. Seriously committed activists often/sometimes (depending who is talking) never reach trial because they die trying. None of that occurred in this case.

I am sympathetic to the Plowshares cause although I seriously disagree with their view of the Echelon network. I applaud their willingness to stand up for their beliefs, and their use of unconventional, yet basically peaceful means to make their case. But for the life of me I cannot understand why they were acquitted, and I fear that the verdict has opened a Pandoras Box of unintended and perhaps dangerous consequences. But then again, we are talking about activities that occurred in New Zealand, although to be honest, if this action merited acquittal, what does that say about the case against the Urewera 18, who did not trespass, damage or burglarise anything?

Imagine what the outcome would have been had the Plowshares engaged their direct action in the US, UK or Australia. I reckon the verdict would have been different, and the sentences severe.

A walking, talking, living advertisement

Posted on by
12

… for why civilised societies which hope to remain civilised don’t lock violent children up with hardened criminals in the hope that they’ll magically reform into model citizens.

I’m talking about Bailey Junior Kurariki, whose latest offences, according to criminologist John Pratt, are a sign he has become institutionalised. Of course, his victim’s mother doesn’t think so, and neither do the usual reactionaries. The other lot aren’t all that much better. But perhaps that’s to be expected: when the only tool your populist justice positioning allows you to wield is a hammer, even a screwed-up 12 year-old kid looks like a nail to be smacked down as hard as possible.

L

The role of the judiciary is to judge

Posted on by
11

There has been much wailing and gnashing of teeth over Dame Sian Elias’ remarks about the prison muster. Nevertheless, this is what Chief Justices (and their equivalents elsewhere) do from time to time – make pronouncements about the law and the state of the justice system, which carry no policy mandate but tend to get people talking.

I would note that the speech was much broader and more considered than ‘let the prisoners go free’ as it has been dramatised. But that Dame Sian has made a pronouncement so far out of step with government policy and public consciousness demonstrates either a remarkable sense of personal responsibility for the justice system or a desire to legislate from the bench.

There are three ways to slice it:

  1. The judiciary is right to involve itself in this sort of thing and you agree with the position taken
  2. The judiciary is right to involve itself in this sort of thing and you disagree with the position taken
  3. The judiciary is wrong to involve itself in this sort of thing, and should stay the hell out of wider matters of justice regardless

I’m the first, with Toad and most commenters on Eddie’s post on The Standard. Labour Justice spokesperson Lianne Dalziel is too. In another case I might be the second. Danyl Mclauchlan seems to be either in the first or the second; Idiot/Savant and Bomber are clearly the first; Madeleine Flannagan, herself a lawyer, seems somewhat grudgingly to be in the second camp. Peter Cresswell definitely is.

But it’s tricky; the third is a cover for the second. I think Simon Power and Garth McVicar (along with DPF and some stalwarts of the KBR hang’em-flog’em brigade) are taking the third position for rhetorical purposes when, if they were honest, they’d be defending the right of the judiciary to participate in NZ’s discourse of criminal justice but disagreeing with Dame Sian’s argument in this case – the second position. Dean Knight points out that, when it suits, the government does actually consider the judiciary’s views as integral to justice policy.

If the particulars of the Chief Justice’s speech had been different, I reckon they’d be singing from a songsheet other than the one which reads ‘butt out, you lily-livered liberal panty-waist’. Perhaps the one which reads ‘I disagree with your position but, as the head of NZ’s judiciary, you are entitled to take it’.

The flipside, I suppose, is whether those of us who agree with Dame Sian’s general position today would be supportive of her right to take it if we disagreed. We should be; all of us.

Edit: Andrew Geddis is in the first position; Stephen Franks is in the second.

L

Crime and punishment

Posted on by
27

Somewhere in all the tough-on-crime rhetoric we seem to have missed out the step where we talk about what prisons are actually for. Do we have prisons to keep us safe, to rehabilitate, to deter, or to punish?

In theory we have them to keep us safe, no more no less. In practice some victims of crime and some onlookers want vengeance. I believe they have no right to vengeance, they have a right to have things put as right as possible (recognising that many things cannot be put right), and they have a right to be safe; but there is no right to punish, no right to inflict pain for that selfish purpose.

So why should prisons be any different? They should serve the purpose only of protecting us and only as a last resort because simply by incarcerating someone we do huge damage to them and those around them.

If we used prisons only when absolutely necessary to to keep us safe

  1. Far fewer people would be locked up – only those that we had no other way of keeping us safe from.
  2. There would be minimal restrictions on those people – if the community will be safe if the person has a TV, they should be able to have a TV, if the community will be safe if they see their children in a friendly inviting environment with toys three afternoons a week, then they should be able to do that. The restrictions we place should be only those that are needed to keep us safe.

Yet we have many prisons full to bursting with people who would do no damage is set free, or who we could be kept safe from in other ways. The people in those prisons (and their families) suffer restrictions which are totally unnecessary.

We have a prison system based on vengeance and punishment, is that who we want to be?

[I have struggled with this post and rewritten it several times, the word “prison” bothers me. I believe that what we should have, for the handful of people who we can’t be safe from without some kind of restraint, is so unlike our current prisons that I don’t know what to call them. 

I thoroughly recommend Maia’s posts about prisons at Capitalism Bad; Tree Pretty, she says it so much better than me. All I know how to say is that we have no right to seek revenge]