People jumping to conclusions on Grace Millane – Give due process a chance


On 01 December 2018 a 22 year old English tourist named Grace Millane disappeared in Auckland. For a few days hope was held that Miss Millane might be found alive and that she had simply got lost or gone walkabout. These hopes were dashed on 07 December when the New Zealand Police announced that they were looking for a person of interest. Several hours later, they announced that this person was under arrest. Then yesterday, the worst fears were confirmed: the case had been upgraded to a homicide inquiry and the suspect was charged with her murder.

Right from the start on social media, especially on Facebook people hoped and prayed for her safe return which is completely understandable. When it was announced that the suspect had been charged with murder, the hopes and prayers not surprisingly turned to anger. People have every right to be horrified and angry that it happened in New Zealand, a country thought to be safe for people to visit. They have every right to want want justice for Grace Millane.

But the number of people who are trying to be the judge, the jury and the executioner before the accused is even brought to court is quite serious. The number of people who think the accused is guilty before any plea has been entered tells me that many don’t care about due process and I wonder if they even know what it is?

I have been criticized by many on Facebook for insisting on due process, but I make no apologies. I want justice done, but it is not going to be done by social media. It needs to happen under a court of law before a judge and – if this goes to trial – a jury.

So, let us look at what sections of the relevant legislation deal with due process in a legal setting.

A person detained or arrested by the Police or other arresting authority has rights under Sections 23-25 of the New Zealand Bill of Rights Act, 1990. Section 23 rights deal with the period immediately after being arrested. Section 24 deals with those who have been charged with an offence – this is where I think the Police are probably at with the suspect in the case of Miss Millane. Section 25 deals with the rights of someone being sent to trial.

As for the victim of a crime, their rights are set down in the Victims Code. The victims code is covered under the Victims Rights Act 2002. I assume that New Zealand Police are applying this to Miss Millane’s family who must be going through the most harrowing moments of their lives at the moment, sick to death at the thought that their daughter is gone.

But due process exists for good reasons and are a mark of a functional justice system in any first world country. That includes New Zealand.

So, let us put this suspect to trial. Let us find out what happened, whether he had accomplices who assisted and whether any evidence has been destroyed in an attempt to pervert justice. Let us find out about Miss Millane’s final hours, and why – just assuming for a moment it was him – he was driven to murder a tourist on holiday in New Zealand.

But above all, let us give due process a chance to run its course, because if it turns out there were other people involved, then the blame is not totally on the accused. If there were other significant circumstances involved we need to know about them. Let us do this properly so that two things happen:

  1. The perpetrator or perpetrators are tried, sentenced appropriately
  2. Miss Millane’s family get the justice that they totally deserve

Neither can happen if due process is not followed.

Time for an overhaul of New Zealand’s judiciary


I am – and I am sure many New Zealand readers are too – becoming aware of a growing frustration with the New Zealand court system and the sentences it hands down. It is something that has been growing in the last few years despite having a centre right Government that one thought might have hardened up on criminals. It is something growing despite an overwhelming referendum result in 1999 demanding tighter penalties.

Barely a month seems to go by without some new wrong happening. It might be a discharge without conviction for someone who admitted a crime. It might be another car chase gone wrong because the penalty for fleeing the cops is not high enough to make people think twice.

Over a period of years I have noticed something consistent with each complaint: the sentence handed down is too weak to do its job. The victim is left feeling like their rights and well being are less important to the judicial system than those of the perpetrator.

In the last two years several notable cases have come to light which highlight these concerns:

  1. A man with 47 child pornography charges is discharged without conviction
  2. A man with 12 drunk driving charges and 4 deaths to his name is not jailed
  3. Police chase ends in death – threat of instant jail for a short period would deter many
  4. A judge discharges without conviction a man despite him assaulting his partner, daughter and a man he believed his partner was romantically involved with

In trying to address how to fix these problems one has to keep an open mind about the potential causes. It is possible that the Sentencing Act has been so badly undermined that the Act no longer works. If that is the case then the Act needs to be overhauled or completely replaced. Certainly many sentences prescribed under the Act do not seem to be fit for purpose in a 21st Century society.

I personally think the range of sentences available needs to be overhauled. But I am aware that if that happens, so must the ability and willingness of the judges to hand them down. And here is where the strongest evidence of a major problem lies. More on that later.

Another possibility is that the training of judges has become too limp. I have no idea what is involved in the training of a judge in terms dispensing sentences, but there must surely be guidelines as to how to treat various types of sentencing scenarios, e.g for someone who committed aggravated robbery causing injury.

Whatever the case, I get the distinct feeling that much of the crime being committed is simply happening because the sentencing done by judges, irrespective of the actual regime they work under, amounts to wet bus tickets. The guilty person or people simply laugh it off, do their sentence and go on with the criminal activity as if no charges were ever brought against their name. This was backed by evidence in 2016 that many burglars caught do not get jail time and not one has been sentenced to the maximum 10 years or 14 years for aggravated burglary.

Minister of Justice Andrew Little has a difficult task ahead of him. His promise to overhaul how justice is dealt in New Zealand is laudable, especially if it reduces our incarceration rates. However this would need to address the widely held views that New Zealand judges are simply too lenient and limp wristed. Mr Little will need to work with both those who deal with prisoners and those who deal with victims in equal measure.

 

Prohibitive road toll demands decisive action


This afternoon on their Facebook Page, New Zealand Police made an unusually blunt and direct statement.

Listen up New Zealand. 

We’re losing far too many people on our roads. 12 in the past week, 336 this year.

Road safety is everybody’s responsibility and your behaviour behind the wheel could change a family forever. Could you live with that?

I am sure the Police were probably quietly itching to put up a much stronger worded statement than that. Maybe a pic or two to jolt people. I would not have blamed them.

The causes of death for these twelve people over the last week will range. Some died from careless driving. Others died from alcohol related incidents. Others died in accidents where too much speed was involved. The results were the same. Several families torn apart. Friends and family wondering how it all came to this.

Cleaning up the remains of human beings from accident sites must be a horrendous job. No ambulance crew, police officer or firefighter looks forward to such events. And each day where they have had such an experience they must surely go home wondering who the people whose lives they literally picked off the road were.

Gavin Hawthorn is a man you do not want to meet on New Zealand roads. But when a man who is on his eleventh (11th) driving charge and has ended the lives of four people across his prior convictions appears in court for his twelfth (12th), clearly not able or willing to learn from his mistakes, there is a responsibility to remove the ability of such people to drive. But not only is there a responsibility to remove their ability to drive, there is also a responsibility to remove their ability to be a threat to the public, which this man clearly is.

It is also time to address our problem with Police chases. Far too many are ending badly. And I think that the problem has a very simple answer. People think that if they can get away from the cops, they will be fine, and so they try to take off inducing a chase. But when the chase comes to an abrupt end in someones fence, crashed or simply caught the Police are going to have much less sympathy for one than if they had simply pulled over when the blue and red lights were flashed. So too will the public, especially if it endangers people or causes a crash or other adverse outcomes that would have been completely avoided had the driver stopped when signalled.

Unfortunately the courts seem to be entirely out of sync with the public, with the Police who bring cases to the courts and prosecute, with society in general. Too much political correctness is coming into decisions. Too often the judge is siding with defendants because they don’t want their careers jeopardized or the “darling little Jimmy (or Jane)” does not normally behave like this.

I don’t honestly care what darling little Jimmy’s behaviour is like. He committed an offence, he can pay the price just like you or I would have had we been in that position. I do not care if someone’s career is going to be jeopardized when they got behind the wheel pissed because when they started drinking, fully sober, they would have known full well then that if they are driving they should not be drunk.

Cut the crap. If judges are not prepared to use the full range of sentences they can hand down appropriately, maybe it is time to consider a career change.

Tackling crime in New Zealand


We have seen the news on the television often enough – a dairy being held up by touths who make off with cash and cigarettes; methamphetamine making businesses busted; someone murdered. We have had our moment of rage at the offender – and possibly the justice system for other reasons – sympathized with the family of the victims. Some of us might have gone on to social media and vented. But having released our anger and shown appropriate sympathy, what do we as New Zealanders do next to tackle crime?

For a lot of people it ends there. They change the subject, or go find something constructive to do like help their kid with homework or put the washing on the line and why not?

But not for all. I am one. For me if it is the latest in a string of incidents, it might inspire me to write a blog article such as this one about tackling crime. Or if there is public law changes open for submission on something related to reducing criminal offending, I will look at the documents available at the Parliament submissions web page and see if it is something I am interested in making a submission to.

My reasoning is simple: to make New Zealand as good as it can be I need to have an active involvement in the available processes that allow public input into policy making.

I think New Zealanders are not where either National or Labour would want to place them on justice and criminal offending.I see a number of separate groupings of people in terms of the approach New Zealand should take in dealing with crime:

  1. There is a significant portion of the population that want tighter sentencing. They look to people like National leader Simon Bridges or Sensible Sentencing Trust spokesperson Garth McVicar for leadership, expecting them to advocate for tougher sentencing laws. I am not in that group. This group would have supported the proposed large prison at Waikeria, southwest of Te Awamutu.
  2. There is another group built around Labour and the Greens, which advocate for reform. They want to see the number of prisoners decrease, which I think most New Zealanders probably do, but taking a softly-softly approach on prisoners by looking at their mental health and backgrounds. I am not in this group, though some of their ideas are good.
  3. I think I belong to a third group that wants to examine whether current “system” – prisons, justice, and Police – are working as they should. My impression is that the justice system is failing to make full use of the range of sentencing ordnance it has at its disposal; that a lot of crime would stop if we permitted medicinal cannabis and banned synthetic cannabis.

But how do we tackle crime? A lot of the existing crime in New Zealand is for a purpose – serious crimes such as stealing cigarettes to order for the black market or drug smuggling, manufacturing to pay bills and/or drug debts can be put down to filling a need. Vandalism, attacks on people might be for the thrill of attacking in a violent or destructive way.

An ambulance at the bottom of the cliff approach is only helpful in dealing with all those already in prison (9,000 plus) is the best way of describing the current mentality in terms of constructing prisons here.. It fails to deal with those who might be out of prison, are otherwise clean and are trying to deal with the next phase in life – re-establishing oneself as a person. This group are particularly vulnerable as they might have lost their social networks, will be out of a job and not be likely to have much if any money. They are also potentially the most dangerous because a failure to catch quickly means a reversion back to their criminal past might be more likely than people will admit.

Per the idea of an ambulance being best at the top of the cliff, the gains for society by identifying those with criminal pasts and seeking to address the issues that made them start committing crime in the first place is a major deal. Some might come from broken families where no respect for the law was instilled in people. Others might might have come from backgrounds involving narcotics and dabbled in it, found it too powerful to ignore and got dragged under.

Whatever the case, examining how such circumstances can lead to criminal offending and seeking to address them using research based policy is the way forward. If we stop deluding ourselves about how well the “system” works – or does not work.

Three strikes law on its third strike


Minister of Justice Andrew Little has announced his intention to scrap the notorious “Three Strikes” legislation in New Zealand that was introduced by the previous National-led Government. The law change, which is intended to address the soaring rate of incarceration in New Zealand, has been met with a guarded response with some wondering what would replace it; others bemoaning its impending demise; still more quietly welcoming it.

And almost immediately, the National Party announced that it would immediately reinstate any such laws, immediately showing a classic case of reactionary politics, whilst failing to supply an adequate explanation.

I personally support the repeal. When I first heard about it just before the 2008 election, I thought such sentencing power would make prisoners think twice for committing their offences. A decade later and I have swung 180º and concluded that it needs to go.

For example let us suppose a person was involved in a car jacking and then an armed robbery, within a short space of time. Several years later during which time no other criminal activity happens Person A is caught breaking into a car. Because of his prior offences Person A is immediately sentenced to 25 years jail. Such a case happened one time a couple of decades ago in Washington State, where

Whilst on the count of two violent crimes and a lesser crime Person A should have already gone to jail, sending Person A to jail for 25 years using the third crime as a trigger is disproportionately severe. Why? Because thousands of cars are stolen every year and many of the perpetrators are not caught. But also a relatively minor crime does not justify occupying a prison cell for 25 years – save that for a murderer, or some other serious offender. Reparation to the victim, plus paying for any damage repairs and a month in home detention should be adequate.

At the other end of the scale, one might argue that due to a well noted inability and/or unwillingness of the judges of New Zealand to send criminals to jail and having a Parole Board that often makes incorrect decisions, does not assist the course of justice. New Zealand judges are notorious for making weak judgements in cases where either a top of the range fine and/or a lengthy spell in prison was the expectation of the New Zealand public when they examine the case.

There are good reasons to replace the Three Strikes law in New Zealand.

  1. The evidence from overseas is that it does not work – assaults in some places have increased because prisoners doing mandatory life prison time for serious offences know they are going to be in jail for the rest of their lives, so what do they have to lose from attacking a police officer or prison warden?
  2. The judge is supposed to be the one exercising discretion in the court house – how is making them hand down a mandatory life sentence for a third serious offence when reasonable law might justify only 10 years jail?
  3. Why are we copying the United States? Since when did American criminal law work effectively in New Zealand – Three Strikes is a quintessential American law. What is so hard about New Zealand law written by and for New Zealanders?
  4. The cost! We cannot afford a multi-billion dollar mega prison when the way the law is currently structured the rate of jailing is at an all time high.

So, I welcome Mr Little’s announcement. However I think I fit in best with the group of New Zealanders wondering what would replace it. Simply repealing it because it is an A.C.T. Party piece of legislation  is not enough and smacks of ideology. But will Mr Little enact the necessary wider ranging reform that is needed? It remains to be seen.