Posts by David Tong
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Hard News: Judicial caprice is no way to…, in reply to Russell Brown,
And yet in writing the original post it took only minutes to find the case of Ian Cole in Westport, who was sentenced in the same week to nine months home D and 150 hours community work – despite pleading not guilty and having been caught with all the trappings of commercial supply, $2000 cash, seven kilograms of cannabis and 20 plants and some LSD. The difference, I guess, is that a jury found him guilty of possessing for supply only the heads found in his car – but that was still twice what was found in van Gaalen’s house.
I remain extremely unconvinced that McDonald’s hands were tied to the extent he said. Also, why wasn’t the option of community work explored? It would seem a very appropriate way to deal with van Gaalen.
Cole seems to have been allowed to live in his house – and so were the Havelock couple who McDonald sentenced to six months home D after they admitted commercial dealing and growing, and selling BZP:
I said these things were extremely rare. You found some of those rare cases. Without reading the sentencing decisions in each and having the full facts, we can't explain why van Gaalen fell on one side of the line and they on the other.
Under <i>Terewi</i>, community work just wouldn't be an option. I agree that it sounds very appropriate, but I'm not in Parliament...
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Hard News: Judicial caprice is no way to…, in reply to Alfie,
I agree that a less strident prosecutor might have recommended a community-based sentence. However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.
Except <i>R v Terewi</i>, the tariff case governing cannabis supply, makes a community based sentence inconceivable. The only options were imprisonment or home detention. Anything less would be appealed in an instant, and would be contrary to Court of Appeal authority.
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Hard News: Judicial caprice is no way to…, in reply to Alfie,
However our collective disgust is better directed towards judge John McDonald in the first instance – of course his hands weren’t tied – he needs to be called out on that fallacy.
Except without reading his sentencing decision and seeing what authorities he cited, we can't see if his hands were tied. From my own experience of cannabis sentencings and appeals against sentence, what he said rings true. I'm betting that he was pretty well ring-fenced by CA and HC decisions that effectively constrained his discretion. I don't know for sure, but it does look like a pretty straight forward application of tariff cases and established law.
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Hard News: Judicial caprice is no way to…, in reply to Rosemary McDonald,
Yes we have the Court of Appeal, the Supreme Court, but is there any ‘higher power’ who is able to intervene in cases like this where, on the face of it, there has been a significantly disproportionate sentence?
Apart from the Royal Prerogative of Mercy, which probably wouldn't be suitable here, the only option is an appeal up to the HC.
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Hard News: Judicial caprice is no way to…, in reply to Rosemary McDonald,
This is about gross inconsistency in sentencing within the framework of existing law.
I admit to an almost obsessive compulsion to find enough information that would lead me to better understand something that makes no sense…to me.
The problem is that we're trying to make comparisons between sentencing judgments on only part of the facts without seeing the sentencing decisions themselves. So we don't know what factors were or weren't taken into account. What looks to us like inconsistency is - from my experience working in criminal sentencing - often Judges applying remarkably consistent principles to eternally varied cases.
Don't get me wrong - I've seen some totally perverse sentencing outcomes in my time. But most of these come down to oddities in the statutes drafted by Parliament, and frustrate judges and lawyers too. For example, for years, if you killed someone while driving carelessly you'd get a much lower sentence if the police chose to charge you for careless driving causing death than you would if they chose to charge you for manslaughter - even though the elements of each offence were almost identical. Similarly - moral panics around joyriding led to new offences being created for stealing and abandoning cars that had higher sentences than stealing cars to keep or sell. I'm not even sure if either of those have been resolved - it's been 4-5 years since I looked at either.
But I'm very reluctant to call sentencing cases inconsistent without reading the sentencing decisions. Without doing that, we're flying blind.
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Hard News: Judicial caprice is no way to…, in reply to Rosemary McDonald,
And prosecuting lawyers don’t like that.
It's not the lawyers' choice. It's the law as set down by the Supreme Court, upholding a long-standing chain of cases from multiple common law jurisdictions. Pleading not guilty cannot legally be an aggravating factor, but pleading guilty is a mitigating factor that justifies up to a 25% discount in end sentence.
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Hard News: Judicial caprice is no way to…, in reply to Russell Brown,
The post says the opposite. It was the judge who claimed to have no discretion – the examples I provided were intended to demonstrate that was plainly untrue.
Fair - though the headline about judicial caprice seems to tilt on the opposite direction.
I'm not convinced that it is 'plainly untrue' that the Judge didn't have discretion though. The starting point for van Gaalen's sentencing would be above two years imprisonment under the tariff case, <i>Terewi</i>, which a DC judge would have to follow or face an inevitable solicitor-general's appeal against sentence (and so possible a higher sentence again in the HC). From that, the balancing of personal aggravating and mitigating factors has very important elements of discretion, but is guided by precedent. At a guess, I'd say that the Judge would have deducted 10-20% from the starting point to get to the end sentence of two years.
Importantly - and totally not considered in any of the comparisons done - van Gaalen pled not guilty and went to trial. Under <i>Mako</i>, an early guilty plea would get an offender a discount from their sentence of up to 25%.
For a cannabis supplier to get a two year end sentence - so in the range where home detention becomes possible - without a guilty plea is very unusual. That will reflect the Judge using all the discretion he could to discount van Gaalen's sentence.
The final question in sentencing would have been home detention. Again, there, the Judge has a discretion that is very constrained by case law. It is supposition to guess why a 12 month home D sentence was ruled out, but I'm guessing the denial of the offending and other factors let the probation service and Crown to think recidivism was likely if van Gaalen received home D at her home address. It is, again, rare for a supplier to be allowed home detention at the address where they offended.
So, at each stage, the Judge had a limited discretion within a window confined by case law. That sentencing judges have discretion but not unlimited discretion is very, very important. We have to balance offenders' personal circumstances with fairness between offenders and predictability.
<qL>But … I think we’ve reached the point with this 40 year-old law where police, prosecutorial and judicial discretion are no longer adequate. The law itself needs to change.
The Law Commission and two Parliamentary select committee inquiries say so too.</q>
There, I agree absolutely.
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Hard News: Judicial caprice is no way to…, in reply to Katharine Moody,
It’s NOT a game for goodness sake. And until the legal profession stop referring to it as such, there really is no hope.
I didn't mean to downplay it's importance with my metaphor. But, to be honest, I cannot see any way to reform the criminal (or civil) justice system(s) that would stop the lawyers dealing with it day in, day out from becoming a bit desensitised and detached. That detachment is a personal defence mechanism.
That’s my whole point – the profession can no longer dehumanise the law – it’s why local protest of the firm sends a message, whether the prosecutor was simply "playing the game" by the rules or not. Real people, real lives.
I'm a community lawyer. I used to work at large firm, but left two years ago to do my LLM. While working on my LLM, I started doing community law work. So, yes, I see these real people every damn day. Often, they're in tears. I do my best for them, subject to my employer's contract with the Ministry of Justice.
If I decided that I was going to use a particular client's case to put the whole system on trial or do whatever inflammatory Hollywood appeal to justice you seem to think should've happened in van Gaalen's case, I'd be doing my client a huge, huge disservice and getting a worse outcome for them.
Similarly, it's my ability to be polite and courteous and even, yes, share jokes with prosecutors and other lawyers on 'the other side' that let's me be an effective negotiator. (And do I leave my phone on in Court? Well, yes - and my iPad. Many lawyers do, because we need to balance demanding caseloads and shifting court timeframes.)
You are blaming the Judge and the lawyers for enforcing the law. We need some system of rules if we are to have courts (and if we aren't to have courts, well, I haven't seen a functioning example of anything better). I want lawyers and courts to play their parts in the justice system according to the law, because - for all its many flaws - it's the best system we've yet developed for administering some kind of justice. Can that system get better? Yes, absolutely - but the way to do make that happen is not for lawyers and judges to substitute their own judgment for the law.
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Sure - and there's definitely scope for improvement in our sentencing methods. JustSpeak especially have done outstanding work around this. But it's not the individual lawyers or judges who wrote the rules of the game. They're playing their roles in a system that can only really (beyond pilots the Court of New Beginnings etc) changed by Parliament. Blaming or condemning individual actors in this system is - as Andrew says - making the same mistake as Garth McVicar.
I'd also say that the original post wrongly tilted at judicial discretion, which I think is an utterly essential component of sentencing. It is what allows judges to tailor sentences to individual offences' facts and offenders' unique backgrounds. The problem isn't judicial discretion; the problem is a statutory scheme that (a) needlessly and severely criminalises marijuana use; and (b) sets out an exhaustive, inconsistent list of purposes (if you can structure a sentence for an offender that both rehabilitates them and denounces their conduct and deters others, but doesn't punish them, you're a smarter person than me by far) based on some problematic assumptions about imprisonment.
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Katharine, the Crown prosecutor was stressing that deterrence is a purpose of sentencing. Section 7(1)(f) of the Sentencing Act 2002 states:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
[…]
(f) to deter the offender or other persons from committing the same or a similar offence; or
[…]So, the prosecutor was talking about deterring other people from cultivating cannabis, and that’s important because Parliament has said it is important in enacting the Misuse of Drugs Act and Sentencing Act.
To a lawyer with experience in criminal sentencing, the prosecutor’s statement is utterly mundane. It’s a completely routine game; the Crown stresses the purposes of accountability, deterrence, denunciation, and community protection, but the defence stresses the purposes of rehabilitation and reintegration (all of which are purposes of sentencing mandated by Parliament).