Posts by David Tong
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Rich: I'm not sure if such a time ever existed. Certainly not in my legal experience. But there's an element of self-fulfilling prophesy in Crown sentencing submissions. The Crown's duty is to seek not the harshest sentence possible, but a fair sentence in accordance with the law. Trouble is, there's a perception (that I've heard from a few prosecutors) that some DC judges just split the difference half way between the Crown and defence submissions. So the prosecutors aim high, counting on the Court to go for something in the middle. The Court ends up imposing a sentence in the middle (which is what it should do anyway), confirming the prosecutor's impressions... (even if that's not why/how the Court chose that sentence).
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There's a lot of supposition going on here. Has anyone seen Judge McDonald's sentencing note?
Few quick points:
- Any sentence of two years imprisonment or below can be turned instead into home detention.
- As there's no parole etc for home D, the rule of thumb is to halve a prison sentence for the equivalent home D sentence.
- So someone sentenced to two years in prison (as van Gaalen was) actually got a very similar sentence to someone sentenced to 12 months home D (as Heath J gave Blaike).
- So the obvious question is why van Gaalen didn't get home D. My guess is that the Crown and pre-sentence report suggested her home address was unsuitable for home D for some reason. It's pretty standard for the Crown to oppose home D when the offending occurred at home (as in both cases), but we just don't know the factors that put one case on one side of the line and the other on the other.
- It's also interesting to ask why van Gaalen's lawyer did not apply for a discharge without conviction. Presumably, they made the call that the consequences of conviction would not be out of all proportion with the gravity of the offence.
- When it comes to the foreign nationals who were discharged, again, I'd love to read the Judge's actual decision. Discharges without conviction are rare and usually controversial.
- That said, sentencing of foreign nationals who want to leave NZ is always a tricky one. There's a reluctance to spend taxpayers' money imprisoning someone for years before deporting them - but, on the other hand, often deportation is exactly what the offenders want. A former HC judge once stood down a foreign offender's sentencing by 24 hours with the words 'You have been a very silly man. I adjourn your sentencing until 9:00 am tomorrow. If you are still in the country then, you will be going to jail, and you will be a very silly man indeed.' (or similar) -
So, wait - if I don't take statistics that claim that I must be Chinese seriously, some people here think I'm a raging Public Address lefty?
Yeah, I'm not getting that.
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Polity: House-buying patterns in Auckland, in reply to Michael Meyers,
Exactly. Apparently I'm Chinese now?