Thursday, 10 July 2014

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.  

1 comment:

  1. I do find the whole "role model" thing a bit boggling. Who the hell is so desperate for a role model that a 19 year old lad looks good?

    This may be an oldest child thing, but expecting anyone without some level of real life experience to be a role model is unrealistic and unfair to that person.

    I also believe that someone with the future role that this kid has needs to do the young and dumb shit in order to be effective and in touch when he's older. I believe that in order to be old and wise, you must first be young and stupid.