Stuff
Reject the blood money, change the law
by Pat Booth
Suburban Newspapers consulting editor Pat Booth appoints you, Justice Citizen, to rule on
two similar court cases.
OK, so you don't get the big salary and the retirement goodies, but just for a
few minutes you can be a judge, Justice Citizen, sitting on appeal hearings on
two similar judgements.
The key issue in these two hypothetical cases seems to me very simple. How
about you?
Two young men crash their cars at high speed and kill innocent road-users in
identical circumstances. One was driving his mother's run-down Ford Escort, the
other his mother's new BMW convertible. Neither had a
licence.
Both plead guilty to dangerous driving.
The Escort driver, the 19-year-old unemployed son of a solo mother from south
The driver in the BMW, also 19, from Remuera has his
case pleaded by a Queen's Counsel who was in his father's class at Kings, or
was it collegiate ? Included in the plea is the offer
of $40,000 as a mark of the young man (and his
family's) deep regret.
This is taken into due account and he is sentenced to one year, with an
immediate application that it be served as home detention to allow him to
continue his studies. The hope is that the conviction won't block his entry
into law school.
By comparison, the solo mother's only asset and transport was the old Escort,
terminally damaged in the crash, still owing money and uninsured.
She and her son, plus her three other younger children, are also deeply
regretful but they have no family trust to call on. She has no cash to offer.
Her son is worried that he'll never get a job when the jail gates finally open.
What is the justice in such a bizarre range of penalties?
If that could happen under present legislation, and that seems possible, then
it's bad law and should be changed.
Public disbelief that such is the law and anger at its most recent precedent are obvious, expressed in ugly but powerful words, like
"bribes" and "cheque book justice". None more powerful than
the justifiably bitter "blood money" label from the mother of a dead
child.
That is a majority community reaction to the halving of the sentence on Ding Yan Zhao, at least in part because of the offer of $40,000
"reparation" from his parents to her mourning mother and then, when
she refused it, to the little victim's kindergarten.
Judicial reasoning says the money wasn't a prime issue. Really?
As you read the judgement the relevance becomes less clear.
Whatever part the offer played, the 19-year-old Mainland Chinese student, who
killed a four-year-old at Rangiriri while driving at
high speed and unlicensed, now faces a 12-month rather than the original
two-year jail term.
The cutting of his sentence on appeal alone would probably have aroused a high
level of public concern. The involvement of the big money offer from his
parents as reparation has understandably lifted the reaction from surprise to
real resentment.
They may not have intended it, but the offer and the official response could
have seemed like a bribe offered and accepted.
Of course, at both the original sentencing Judge Robert Wolff and then the High
Court's Justice Tony Randerson, who later altered the
penalty, tried to head off criticism with statements that people could not buy
their way out of prison with an offer of reparation.
Absolutely not.
But, the public will be amazed and disturbed to find that such a provision
exists in law, that how much and in what circumstances can be a consideration
for a sentencing judge.
Justice Randerson says that, as the law stands, Judge
Wolff "did not make sufficient allowance for the reparation ordered (a total
of $16,100 including vehicle damage and medical costs) and the offer of amends
(that $40,000 cheque)."
He was apparently "obliged (by law) to take appropriate account of any
such offer".
The original sentencing judge had taken into account the $40,000 offer. He also
talked sympathetically of "a term of imprisonment is going to be doubly
difficult because of the cultural and language problems that you will
have".
He also presumably weighed up the years of sorrow involved for the parents of a
much-loved little girl, the woman who has spoken movingly of the hurt
collecting up her little one's treasures in a cardboard box.
The fact is that the Randerson decision, correct as
it may well be in a strange process of law, cuts
across obvious community views on crime and punishment.
Particularly since the weird system of parole will probably mean a release well
within the 12 months.
I am far from having a "jail them, flog them, throw away the key"
attitude towards jail, but I understand the anguish of a public which sees what
they believe to be finite sentences slashed by the mechanics of the justice
system which follow conviction.
"Good behaviour", for instance, to create a good impression in jail
after shocking, anti-social offending doesn't impress me, nor
the majority of the public.
If you argue that public attitudes have no place in the matter of the law and
sentencing, then a powerful and respected figure in British law disagrees with
you.
The late and great Lord Denning once said:
"In order to maintain respect for the law, it is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion
felt by the great majority of citizens."
The bad law, which was the basis for Justice Randerson's
decision, is totally unacceptable for Lord Denning's great majority of citizens
and should be changed. Polite lectures on the statute from brother judges, law
professors and ministers don't alter the facts nor soften the
"revulsion".
Talking about bad law, just how sensible are those home detention provisions
that keep cropping up?
So, you lose some of your freedoms, but not all. You stay in your own bed, with
your sound system on the far wall, all the comforts of home, unlimited conjugal
rights, 24-hour visiting and the rest.
While the Minister of Justice Phil Goff weighs up the real public anguish over
the Ding Yan Zhao disaster, and apparently finds
strange difficulty in seeing the problems over the Peter Ellis case, he should
also look at the home detention system, well-intentioned and all as it might
be.
It has real potential during bail for the accused, whose guilt or innocence has
yet to be proved and who is unlikely to do a runner
But by my book, as punishment it's a soft option and
doesn't in any way match the alternative time in a cell.
Why not a formula something like this: A year inside or two years' home
detention?
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