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An insider on yesterday’s view of judicial arrogance

  • February 12th, 2016

I often get direct support from inside the criminal justice system. The authors will not comment on the blog because they can’t afford to risk the elite consensus vengeance on heretics.

Here is an example comment on yesterday’s post, edited to reduce the risk of identification:

I just read your blog post on the Kingi decision – I hope you don’t mind receiving an email direct, I can’t afford a ‘please explain’ for a public comment in my position.
I got about halfway through the judgment to the point where Justice Wylie started making excuses as to why Kingi should not receive a life sentence, then – disgust. I see no reason why the judge should take into account the effects of a life sentence on a murderer – as if death were a mere inconvenience that the victim will soon recover from. Nor why the infliction of only one blow to the victim’s head should be considered insufficiently brutal to invoke section 104(1)(e) of the Sentencing Act – one blow was sufficient to kill! I would argue that is the extreme of brutality, applied with callous efficiency.
I note that Wylie J referred to the Harrison case, in which Justice Mallon said that the threshold for the exercise of the discretion conferred by the words ‘manifestly unjust’, with regard to a sentence of life imprisonment, had been set very high, and the Turner case in which Justice Woolford said the manifestly unjust test should be a rare one. Surely it must have struck Justice Wylie as odd that all three cases met this incredibly high threshold. What odds!

Exactly. We’ve had three cases so far for application of the three strikes mandatory sentence for murder. Our judges have mysteriously found that all three involved circumstances justifying application of the “rare” and exceptional exemption. How do we get this remarkable coincidence? A court lawyer commenting on one of those previous cases, told me the judges might have decided to support each other in nullifying that part of the reform at one of their group-think conferences. Or they might simply share views without needing agreement. The organisers of these conferences invite like minded “experts” to lead them in secular ‘bible study’ sessions to know which ideas are fashionable, and which are not.

The commenter went on:

A High Court Judge recently sentenced an offender to seven years imprisonment (likely eligible for parole in less than two years) for extremely depraved and sustained sexual offending against his children. The learned judge indicated she did not consider the offender merited a sentence at the top of the band, as he had only been convicted of raping some of his children, not all of them. As if raping three children were somehow more meritorious than raping six. I take pride in not being a part of the culture of offence-taking we have developed in NZ that you have so adroitly written about, but I’m now in full-blown outrage. Relativity in sentencing is a cancer that needs cutting out of the ‘justice’ (good luck finding any) system, though I’ve no idea how to do it.

I’ve written previously about the illogic in our judiciary’s developing obsession with a spurious equality in sentencing. I’m aware of no evidence that differences cause people generally to lose confidence in justice, as long as they expect it. For example – adjacent states in federal countries often have material sentencing differences. NSW restored ‘life means life’ years ago. Other states have not. People understand campaigns – a judge in Napier who started imprisoning for graffiti was applauded. Our judges nevertheless pour resources into appeals against sentence.
I also note your point that maximum sentences are never handed down, as if whatever action parliament envisaged being worthy of a sentence of 14 or however many years of imprisonment has never come to pass. Coral Burrows, anyone?

The Government should share the blame. The Hon Chris Finlayson knows the courts are sidelining bits of the law they don’t like. He has shelved a reform (never brought part of an Act into force) that would have limited the power of the judges to do this.

When I started my career I was advised by senior colleagues to never get hung up on sentencing, as I would drive myself crazy. I took it on board as best I could because it was good advice in a band-aid solution sort of a way, but I now realise it’s a damning indictment on the whole broken system. Don’t even get me started on how long it actually takes to get things through court…
Anyway, that is my impotent rant. I realise that we don’t know each other from a bar of soap, but I hope this email finds you well.”
Thank you colleague.  Many justice insiders know their Empresses and Emperors have neither intellectual clothes nor the self knowledge to acknowledge it. So it is reassuring to hear it from you.

Just as you don’t want to dwell on the dishonesty in sentencing, I hate thinking about the disgrace my generation of lawyers has brought on the justice system. I rarely go now to law profession functions where I’ll have to hear clever barristers’ and judges’ speeches of mutual admiration. As this blog has explained previously, they should be hiding their heads  over features such as:

  • money and resources wasted without shame;
  • delays (it is scandalous that potentially innocent people can be in jail for up to 500 days awaiting trial)
  • self indulgent clinging to process rights (the so called right to silence for example) that serve lawyers’ self importance, not truth or justice
  • huge numbers of litigants trying to get through without lawyers,
  • persistent suppression of names and case details, denying freedom of speech and surrendering our inheritance of open justice.

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