Discharge without Conviction

Over the past week or so there has been a lot of debate, well not much debate, more just public outcry about the Maori King's son, Korotangi Paki, getting discharged without conviction.  If you've been living under a rock and don't know what this was about then Google is your friend.

What has disturbed me most is the self righteous indignation and pseudo legal arguments by many people who believe that this avenue was only made available because of some privilege afforded to him as the son of the Maori King.  Let the punishment fit the crime has been the catch cry of the week.  Unfortunately what people don't seem to comprehend is that this is exactly what the judge was doing when ordering a discharge without conviction. 

Let's look at the what seems to have fueled so much debate.  When a judge has to decide on what punishment to impose they look at legislation such as the Crimes Act 1961 and the Sentencing Act 2002.  Within in these Acts are the rules around sentencing and the minimum and/or maximum penalties for each offense.  These penalties have been determined by lawmakers (politicians) and is a guideline for the courts when deciding on a sentence, taking into account things like the age of the offender, remorse, if and when they plead guilty etc (s9 Sentencing Act 2002 outlines the possible aggravating and mitigating factors).  

Lawmakers understand that there are times when people are just stupid and do stupid things, or sometimes find themselves in unfortunate situations.  They realise that the act of receiving a conviction, even if the penalty is simply a fine, would unduly place a burden on the offenders that is disproportionate to the original offense.  For lots of people a conviction would ruin careers or negatively impact future opportunities, and in the case of Korotangi Paki, it would have affected his eligibility for succession. 

Section 106 of the Sentencing Act 2002 states:

s106 Discharge without conviction

• (1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
  (2) A discharge under this section is deemed to be an acquittal.
  (3) A court discharging an offender under this section may—

  • (a) make an order for payment of costs or the restitution of any property; or

  • (b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
    • (i) loss of, or damage to, property; or
    • (ii) emotional harm; or
    • (iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

  • (c) make any order that the court is required to make on conviction.

This means that if there is no minimum sentence that must be imposed for the crime, then the court can discharge without conviction.  Section 107 specifies that it must be because a conviction would make the punishment outweigh the crime.  

s107 Guidance for discharge without conviction

• The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

You may have heard of Diversion - which essentially has the same result and is at the discretion of the police - it doesn't even get to the courts.  

Both Diversion and Discharge without Conviction are life savers for many young adults who don't know better and older ones who should.  You may not even realise that there are people you know who have been given diversion or a discharge earlier in their life.  People you wouldn't consider hardened criminals, who made a mistake, and instead of having that conviction hanging over them for their lives, have been given a second chance.  

One Law for All 

Let's go back to Korotangi Paki.  People believe he was given the discharge because he was the Maori King's son.  Yes and no.  There was no special privilege afforded to him because he is the King's son.  It was because by being convicted he would not be able to become King someday.  There is a difference.  If Paki was his second son (with no right of succession) or if there was no restriction to succession based on his criminal record, then the argument, of the punishment being unduly severe, would not be supported.    

Let's look at this from another point of view.  I've read so many arguments and had discussions with people based on the fact that there is some special privilege for Paki because of his father.  What they fail to realise and even when they're told specifically, is that this isn't a privilege set aside for a select few.  It's available to all of us, based on the circumstances of our crime and lives.  If you commit a minor crime, because you're a dumb ass, that carries no minimum penalty, and can show that to be convicted of such you would experience undue hardship - perhaps be disbarred, be deregistered as a teacher, be kicked out of school or uni, who knows, and that this hardship is disproportionate to the crime you committed and the penalty imposed for that crime, then you too can try for a discharge without conviction.  You don't have to be the son, or daughter, of anyone special.  

Let the punishment fit the crime.  

Should he have been punished?  Yes, I believe so.  He did commit a crime and in s106 there is a provision to make an order for payment of costs, restitution of property or compensation to the victims.  Without knowing the specifics of the case, because that was not the focus of any of the 'news' articles, I don't know if there was any order made for this.  But lets look at the case.  He drove while under the influence, and while out drunk with a few mates, as stupid dumb asses do, flogged a couple of surfboards and some clothes.  No harm to person or property was reported.  While I think he should have been punished, and fair and reasonable compensation should have been ordered, stripping him of the ability to become king is too severe for the nature of his crime.  A discharge without conviction, is fair and justified, in my opinion.

What really pisses me off about this saga is that in the time since the furor over Paki's discharge, the front page of Stuff has had two articles where people have been given a discharge without conviction for assault, where neither were reported to be the son of the Maori King or anyone else of significant media worthy note.  I've tried to create discussion about them on various websites, and Facebook pages, and the only ones who dare reply have been friends who understand the law aka lawyers, and someone who genuinely didn't know that discharge without conviction was a valid thing so didn't know that it wasn't just something for the privileged few.  

But he's a role model - if he does this he shouldn't be king. 

Do people really think that he was a role model?  A role model is someone we point out to our children as being someone to look up to.  Before this happened could anyone honestly, and I mean honestly, say that they knew who Paki was, or had put him in a place where their children were to emulate him?  If you're like me, and 99% of NZ I'm willing to bet, you had no idea who the Maori King's son was let alone thought of telling your kids to follow his example.  This is just an excuse to pile more crap on the kid.

Racism in NZ 

I wasn't going to mention this but I can't ignore the fact that under the thinly veiled guise of one law for all, there has been a rather racist reaction to this case.  I'm not talking about people who genuinely had no idea that discharge was available to all.   However even when the discharge is explained there is still a large number of people who are using this to make race based comments (there's a Facebook group I know of - not the only one I suspect - that is quite blatant with this) and that really angers and saddens me.  I thought we were better than that as a nation.  Unfortunately, every now and then I'm proven wrong.  

An Open Letter

I know I often write about shitstorms and meltdowns that have occurred on the internet. I know that for some people this appears to be feeding trolls, passive aggressive whining or a sign of how messed up our society is these days. I find it indicative of how our society is changing.

This blog is to and about a young man of my acquaintance. He is a real person.

I first met you online several years ago. You made some sensible reasonable contributions to discussions in NZ Pagan Community forums. Then you vanished for a while. Then you came back, but different.

I thought you were an utter tosser. You would enter into a discussion with a rant that had little to nothing relevant to the discussion. The most memorable being a post about recognising logical fallacies in discussions, debates and arguments. You were the first comment, ranting about how logic had no place in religion. I read your comment several times to see if there was something I had missed. Had someone else commented to put those two together and then deleted it? It couldn’t have been someone who had me blocked because they wouldn’t have been able to see the post in the first place. Here you were spouting off that they didn’t belong together, but there was no one putting them together except for you in your comment about why that was wrong. Perhaps you were demonstrating what a circular argument looked like?

I shrugged and went to bed. I’d try to make sense of that tomorrow.

When I looked at it again the next day, it hadn’t improved. You’d gone on about Philosophy and stuff like that. I saw one person had made the valiant effort to try to understand where you were coming from. He was asking you where your viewpoint came from and how you came to that conclusion. You were insulting and condescending. You said things like “Imma break it down and use real small words so you get this, m’kay?” Did you not realise that this terribly patient person was currently in the midst of his PhD in Philosophy? Did you make yourself clear? Oh I think so. That discussion seemed to end when you complained that you didn’t care, you were drunk and had better things to do like saving lives and shit.

Ah. You were drunk. That makes everything okay doesn’t it?

I recalled your posts filling my feed one night about how you were drunk and someone needed to come and bring you pizza. It reached the stage where you were demanding that at least one of those insensitive bastards you called friends owed it to you. When someone pointed out that pizza companies deliver and you could order one yourself, you insulted everything that was important to her and her most special achievements.

All of a sudden, and possibly because I was looking for it, everywhere I saw your name pop up, I saw your abusive behaviour. I saw an overweening arrogance. I saw you act as though being a Mall Cop was something pretty fucking special and how the Police were so grateful for your intervention. I saw you repeatedly tell people what your IQ was as if that made you something even more special. I saw you insult and demean a lot of wonderful people that really didn’t deserve to be treated that way.

I met you in person at an event. Firstly, I was surprised at how tiny you were. All your posts had made you out to be at least average size in a guy and closer to big for a guy. I was expecting someone at least 5’10” and built like the proverbial brick shithouse. Not this skinny weedy little fellow. But I thought that explained a few things. A bit of small man syndrome, bantam rooster stuff.

About six months later, you were outed to me. It was quite by accident. This mutual acquaintance didn’t know you were active in the Pagan Community. He knew you through the transgender groups that you’re active in. He said, “hang on, do you mean X? Transgender X?” Ah, suddenly so much about you made sense. Your irrational ranty aggressive behaviour could be fueled by all the testosterone you’re having to take in your transition. Even the questionable profile pic that was a close up of your barely covered genitals now made sense - even though I still found it distasteful and unnecessary.

I saw you again at the same event the next year. This time, I had two young women with me. Both vulnerable and dealing with some pretty nasty stuff of their own. That either of them had chosen to come at all and spend a weekend with a bunch of mostly strangers was pretty huge for them.

You got drunk. We had a chat and decided to see if we could mend fences and at least try for some sort of understanding. You mentioned your big “thing” and I told you that I hadn’t known about your big “thing” until a few months earlier. You were surprised, you thought everyone knew. It’s not a secret in this ‘family’ you told me. You went on to tell me all about how hard it was for you because you’d really like to have a girlfriend and things go so far and then they find out about FRANKENSTEIN you yelled while pointing at your crotch.

It didn’t get better. You were loud, you were drunk and obnoxious for most of the weekend. You didn’t seem to participate in anything other than the drinking and some sort of competition to be the most strident voice in any conversation. You were behaving like a complete arsehole.  You went on to near strangers attending their first one of these events about all your problems with your parents.  They learned nearly all of your issues while waiting in line for something.

At different times, both of the young women that had come with me came up to me freaking out over your behaviour. You’d been too in their space, you’d yelled things about freaks and frankensteins and how you didn’t want to be M any more so often that they were becoming really frightened by you. Both would most likely have pulled pins and gone home, if it had been something they’d had more control over.

“What the fuck is the deal with that creep?”

So I told them your big secret that wasn’t a secret in this group. It allowed them both to understand you. It was the only thing that allowed you to form friendships with either of them. Actually, knowing your secret that wasn’t a secret was the only reason I was open to forming a connection or friendship with you again. I know it’s not an easy place to be in, and perhaps with some more support you’d tone down the idiocy.

You sent me a message on Friday night telling me off for outing you. I asked where this had come from and you told me it was one of these young women. I apologised. You accepted my apology and complained about how you’d finally worked up the courage to tell her and found out that she already knew and that stole your thunder. I’d told you that I’d also told the young woman closer to me. She tells me that she hadn’t let you know that she already knew, but you then blew her up for not telling you this. I thought about the situation and felt that total honesty was required. I told you that in the case of these women, I would do it again in the same situation. Even with your “If you do this again then we can’t be friends” decree.  Normally, I wouldn't have outed you, but you needed to take responsibility for your own actions, understand why I'd broken this "rule" and perhaps be able to prevent it from happening again.

I had a responsibility to keep them feeling safe and you were threatening that. Your right to privacy stopped when it threatened their safety. Safety is not just purely physical circumstances. You can call this excuses all you like, you can pass it off as I have a sad, miserable life (you clearly have no clues at all about me) but nothing you rant at me, or anyone else who is sitting in self-appointed judgment of me will change this. If there is something I know that can make a difference to the situation these two were in, not sharing it for the sake of the privacy of a clown who has just told me that it’s not a secret and has yelled it to an entire campground, well that would be negligent.  And given that you'd yet to ask who told me showed another inconsistency in your problem.

You can tell me it’s about self-preservation. Right back at you. This was about their preservation. Yours was of lesser importance to me. And your hypocrisies and inconsistencies in this make it even odder. You’re supposed to be smart aren’t you? A 140 IQ should realise that you’ve dug yourself a hole and stop before it’s too deep to get out of.

Then I learned about the way you’d been behaving to these women. I’d been somewhat concerned about the tone of your conversations with one of these women since then. You were constantly chatting with her, presenting this persona of over the top masculinity and she was still trying to be understanding with you. She has other transgender friends and has a pretty good understanding (well almost as good as it gets from the outside) of what it’s like for you.

I didn’t know that the persona you were projecting onto the other young woman was the opposite. You’d chosen a part that was somewhat pathetic. She tried to justify your most recent behaviour to me as “the poor thing, he tries to hard to measure up to the macho male thing and just can’t feel comfortable with it. He doesn’t have much contact with anyone else in the LGBTQ+ communities.”

It was at that point I told her where your outing to me had come from. Not much contact with these communities? Really?

You see, we’ve all heard the stories about the way you behaved regarding your two ex-girlfriends in the community and the stories you’d told one of my girls about one ex didn’t match the person we knew. We were not there, we weren’t going to try to make sense of any of it or take sides. But the two different personalities you were presenting to the girls suddenly looked sinister. They’re both smart girls, smarter than you (in case you hadn’t figured that out) and while they were both vulnerable, neither would have fallen for it for long. One in fact realised just how insidious and mind-gamey your interactions with her had been.

That you spent a day and a night trying to turn my own flesh and blood against me, while she was visiting and sitting in my lounge with me shows a remarkable level of stupidity.  You can talk smack and try to use your own twisted brand of logic with her, but as I said, she's smarter than you and that didn't work so well did it?

Now you’re doing a big poor me bleat about how you’ll only ever be known for that label. You talk about all the questions you get when people realise and then they switch off. Did you get a single one of those questions from me or my girls? Did we treat it as anything other than a part of who you are, like your hair colour?

Do you honestly think that we’ll remember you for that transgender label?

Nope. Not even close.

If you don’t grow up and try to be a better human, you’ll just be known for one of a number of different labels. Or possibly all of them.

Arsehole. Manipulative bully. Perpetual victim. Abusive loser.

None of those have anything to do with what’s in your pants. Stop using that as an excuse to keep justifying and reinforcing those labels.  Try to be a decent human being first and the rest should follow.

Update:

I've had a long and wonderful conversation recently with one of the folks who outed you to me.  He pointed out that one of my most outspoken critics in this publicly outed you some time ago without your knowledge or consent.

She had a big thing on her facebook about how cruel it was of our government to not allow you a passport that reflected your transgender identity.  Your comments expressed your surprise that she had posted on your behalf and your gratitude that she was going in to bat for you.  Nowhere was there any kind of issue about being outed without your consent.

I guess it's okay when it's political and can be used to whine about our government.

Researching, Writing and Learning

I am in the process of writing my second book.  I have written some chapters and I have outlined others.  I have found some sections extremely easy to write about and others I have struggled with.  There are parts that were touched on in my previous book and I don’t want to just have a reprint of those parts with perhaps the odd changed word or phrase, but I’m not sure how to restructure it without losing anything.  I have spent a lot of time up to the eyebrows in other people’s books.  Doing research, looking for validations for my opinions - something to back up a point I’m making or a slightly different way of looking at it that will enable me to make it clearer.  Even refutations of my opinions are welcomed.

It has been quite a learning process.  In my head, when I started to write this book, I knew all I needed to know.  I was sharing the wisdom I’ve accumulated over the years with those who have less experience.  I was arrogantly assuming that there was little to nothing of substance left for me to learn in this field.

I pored over several books and ancient texts.  I found what I wanted to find, I had a couple of small surprises and I didn’t find what I hadn’t really expected to find.  I remember my excitement (and smug self-satisfaction) when one scholarly work verified and validated a conclusion I’d drawn on my own.

Lately though, reading through the last couple of books and concepts I’ve come to a realisation.  That through this research and writing process I am actually learning more.  There are concepts that I’ve had a faint grasp on, a shallow intellectual understanding of that I now get at a far deeper level.  I’ve had my “aha!” moments, I have found my somethings to back up a point I’m making in a different way and different ways of looking at things that will enable me to make it clearer.  I just didn’t expect that the way they made these things clearer was for me to understand them better.  For the deeper meanings to sink in and make my surface knowledge something deeper and truer.

There are components of ritual that our group always did.  We always did them because our High Priestess had always done them in her previous group.  They were never explained to us with whys or deeper meanings and to be honest, I’m sure that if she’d known them they would have been explained as often and clearly as possible.  I could explain why we did them.  I could give you a perfectly reasonable understanding of the function and necessity of these things.  But it has been while reading the book I’m currently in the midst of that a better understanding of some of these components has occurred for me.  It’s also fascinating for me that even with my imperfect understanding, I still had made the choices to include or not these actions in various rituals I’ve led correct.

I saw a quote recently.  It says:

We Learn…

10% of what we read
20% of what we hear
30% of what we see
50% of what we see and hear
70% of what we discuss
80% of what we experience
95% of what we teach to others

- William Glasser

In writing a book, I’m teaching to others.  I’m learning more about these concepts that that I thought I understood.  I’m understanding them better by finding my own words to explain each concept.  In some ways, I feel almost as though I’m writing this book for me, not for anyone else.

Blessings


Debbie