Plunket on call for Maori sentences to be shorter

November 25th, 2013 at 9:00 am by David Farrar

writes:

According to his online CV, lawyer James Rapley specialises in criminal defence litigation and has appeared as counsel in the District and High Courts on numerous high-profile trials involving serious fraud, drug, murder, sexual crimes and other crimes of violence. In May 2004, he began practice as a barrister after working as a senior prosecutor for the Serious Fraud Office and Crown Solicitor’s Office for nearly 10 years. …

He reckons Mika should get a 10 per cent reduction in his manslaughter sentence because he is a .

Most New Zealanders, including most Maori, probably think that is complete bullshit.

I am sure most Maori would.

The High Court judge who sentenced Mika appeared to do so, for while he acknowledged Mika’s personal circumstances, he rejected Mr Rapley’s plea for leniency with these words: “in my view, however, the law in this country is clear that no special discount for race, culture, or ethnicity matters alone is appropriate”.

Sometimes judges can be really sensible.

But the Court of Appeal, which in legal terms is more important than, and senior to the High Court, was convinced by Mr Rapley to rehear his argument for a reduction in Mika’s sentence.

Three Court of Appeal judges considered that appeal this week and rather than reject it as bullshit as most people would, they have reserved their decision.

This may not be significant. I think almost all their decisions are reserved. My worry would be if it goes to the Supreme Court and what Dame Sian might try and convince her peers to find!

I am fairly certain that Mika wasn’t thinking about post-colonial oppression when he boosted a car and left his fatally injured passenger to die on the side of the road back in February and I’m pretty sure he was unaware of the disproportionate number of Maori in prison when he admitted his crimes in the High Court.

We can also safely assume that a 10 per cent reduction in his sentence will do nothing to reduce his chance of reoffending or encourage him to live a less antisocial life.

A 10% reduction in his sentence will I am sure be a 10% reduction in the time taken until he reoffends!

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39 Responses to “Plunket on call for Maori sentences to be shorter”

  1. jakejakejake (145 comments) says:

    Everyone knows it is bullshit so why give him attention?

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  2. skyblue (206 comments) says:

    Make it a shorter sentence at the end of a rope.

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  3. Manolo (13,517 comments) says:

    I suggest nine instead of ten shooters making up the firing squad.
    That Mika is the vilest animal you can ever imagine.

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  4. dime (9,668 comments) says:

    Jesus, I misread the title. Thought it said “plunket call for…” as in plunket, the chicks who come around and check out babies.

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  5. liarbors a joke (1,069 comments) says:

    Rapley’s obviously an attention seeker… give him no publicity..eventually he will crawl back under the rock he came from.

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  6. RRM (9,667 comments) says:

    Hollow out the point on the bullet, for a 10% reduction in the amount of lead used in the sentence.

    Splat!

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  7. Rich Prick (1,635 comments) says:

    Hopefully the matter doesn’t reach the threshold for a Supreme Court appeal, he would be in with an odds on chance there. But just remember, Mika’s victim didn’t get a race-based discount, so nor should he.

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  8. david (2,554 comments) says:

    The day that Mika’s victim is proven to be 10% less dead is the day this suggestion should even get airtime.

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  9. Jaffa (84 comments) says:

    Maoris should have a lower sentence, but only if their offense is against other maoris!

    Otherwise it should be double!

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  10. F E Smith (3,315 comments) says:

    This just shows that Plunket (and some commenters here) is commenting on something that he knows nothing about and has not taken the time to educate himself on.

    Firstly, Rapley is not advancing his own opinion.  When Plunket says that

    He reckons

    he should be saying that Mika reckons.  That would not only be more accurate, it would be correct. A lawyer does not and must not advance his or her own opinion in court  

    Secondly, this sentence

    Three Court of Appeal judges considered that appeal this week and rather than reject it as bullshit as most people would, they have reserved their decision.

    also shows an ignorance of the NZ Court of Appeal.  Unlike the UK Court of Appeal, where you will often get decisions handed down ex tempore, the NZ Court of Appeal does that only very rarely.  The fact that they reserved their decision means nothing.

    And with regards this from DPF

    My worry would be if it goes to the Supreme Court and what Dame Sian might try and convince her peers to find!

    well, that is just silly.  There are five very strongly opinioned judges on that Court and to suggest that the CJ might be able to influence them other than through good reasoning is wrong.  I don’t know why so many people think that Dame Sian is solely responsible for recent decisions from the SC that they don’t like, but it is a misguided opinion to hold.

    What is worse is the creeping authoritarianism that is beginning to infect the right as well as the left.  Apparently living in a police state is ok with many people…

    Anyway, the whole story is a beat up, and Plunket is commenting (wrongly) on a beat up.

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  11. Nigel Kearney (919 comments) says:

    There is a right to one appeal to the next higher court, so it means nothing that the CA chose to hear the case. They get hundreds of these silly appeals that they have to go through and write an opinion saying why the appeal is groundless. In their position I would be tempted to increase sentences often enough to create a disincentive for people to bring such appeals.

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  12. wikiriwhis business (3,883 comments) says:

    I do believe in capital punishment on the evidence of eye witnesses.

    Life imprisonment for no eye witnesses

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  13. Left Right and Centre (2,883 comments) says:

    I miss Michael Laws on Radiolive. Plunket fella – yeah, nah.

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  14. wikiriwhis business (3,883 comments) says:

    ‘I miss Michael Laws on Radiolive. ‘

    I miss Mark Bennett. Can’t find any sign of him online either.

    Just dissappeared into the ether

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  15. Nick R (500 comments) says:

    I’m not sure what Plunket meant when he said that the Court of Appeal was convinced to rehear the sentencing. The Court of Appeal hears appeals. If Mika was convicted in the High Court, he gets to appeal to the Court of Appeal. The appeal might have no merit at all but the Court still has to hear it and give a decision. But until such time as the Court gives a decision it has not been “convinced” of anything.

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  16. Yoza (1,678 comments) says:

    Sean Plunket

    The High Court judge who sentenced Mika appeared to do so, for while he acknowledged Mika’s personal circumstances, he rejected Mr Rapley’s plea for leniency with these words: “in my view, however, the law in this country is clear that no special discount for race, culture, or ethnicity matters alone is appropriate”.
    …Encouragingly, one of the justices did note that the idea of discounting a criminal’s conviction on the grounds of race would be “radical”.

    It is easy to understand why a white reactionary would elicit support on Kiwiblog with this dog whistling diatribe.
    How is it ok for Maori to receive lengthier and more regular custodial sentences than their Pakeha contemporaries;

    Officially published research asserts that, once apprehended, Maori offenders fare less well in the judicial process than their Pakeha counterparts, being more likely to be prosecuted, to be convicted, and to receive more severe sentences. (C.McDonald,1986, Department of Justice, cited in Justice Statistics 1990.)

    , yet when one of those Maori apply for a paltry reduction of their sentence the judicial process is called into question?

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  17. wikiriwhis business (3,883 comments) says:

    Should there be a CIR for the return of capital punishment ?

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  18. fernglas (121 comments) says:

    While FE Smith is technically correct about lawyers carrying out their clients’ instructions, I would be surprised if this idea sprang wholly from the client. My view is that lawyers are entitled to and should raise potential lines of argument with their clients. They are not merely mouthpieces but are there to advise on an area in which they are supposedly expert. That doesn’t mean that some of the advice isn’t ill-conceived.
    FES is also right about Dame Sian not exerting undue influence over other members of the Supreme Court; look at how many times she has been the sole dissenting voice.

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  19. David Garrett (6,785 comments) says:

    Yoza: You are quoting from 25 year old stats…unfortunately, the same could probably (mostly) be repeated today…Maori ARE disproportionately represented in crime stats, from arrest and prosecution to sentence. The big question is “WHY is that?”

    I don’t know the answer to that anymore than anyone else does…But I am pretty damn sure it is NOT “colonization”, or institutional racism, either on the part of the police or the courts. And I dont believe many Maori would offer those excuses either.

    My good friend Northland Wahine has raised two boys to adulthood and is raising a much younger one now. I am sure she would not mind me referring to her. She highly values education, and her home contains many books. She puts her young son first before anything else, just as she did her older boys. She deals with Maori bullshit every day, and recognises it for what it is.

    Her older sons have never been in any trouble with the law, and I would be astounded if either they or the young one ever were. To her sadness, Northland Wahine is not typical. Perhaps there is the answer right there.

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  20. rg (200 comments) says:

    The Governmnet encourages this attitude because it has 22 acts of legislation which confer different legal status to a Maori person than others. We live in apartheid NZ so this is just another step along the way to further inequality before the law.

    If he wins does that set a precedent which will allow prosecuters to ask for tougher sentences for all maori people because statistically they break the law more and so need harsher deterrents. People generally like racism when it works in their favour, but oppose it when it doesn’t. It is only the ACT Party that opposes racism in law, and only 1% of people support them.

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  21. peterwn (3,215 comments) says:

    So if a Pakeha has James Rapley representing him, the poor guy will probably get 10% extra.

    Nigel – The Court of Appeal will only increase a sentence if it finds the sentence imposed to be manifestly inadequate. Even then it will increase it to the bottom end of the sentencing range it considers appropriate.

    Contrast to British courts who will uplift sentences to sanction vexatious and frivolous appeals. Lords Goddard and Parker (successive Lord Chief Justices) were well known for upping sentences when hearing appeals. Despite all the horrid things said about him, Lord Goddard IMO was a good judge.

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  22. Yoza (1,678 comments) says:

    peterwn (2,583) Says:
    November 25th, 2013 at 11:48 am

    So if a Pakeha has James Rapley representing him, the poor guy will probably get 10% extra.

    As David Garrett pointed out the research to which I linked is 25 years old, but the justice system has not undergone any seismic shifts since that time. Statistically speaking, if Mika had been a Pakeha in similar circumstances the sentence would not have as long as if he were Maori, so odds are a ‘Pakeha Mika’ would have received a greater reduction of his sentence than the 10% the ‘Maori Mika’ was attempting.

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  23. David Garrett (6,785 comments) says:

    peterwn: …can I add Sir Gordon Ward, former Chief Justice of Tonga…he always had a very short answer to those palangi defendents who argued they should get lesser sentences because prison time in Tonga would be much harder for them than for the locals…his answer was “do the crime in Tonga, do the time as the Tongans do”….well, he put it considerably more eloquently than that…

    Just saw your last comment…apparently the CA doesnt increase sentences any more because the Crown now has the right to appeal them…

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  24. slightlyrighty (2,499 comments) says:

    When too many people drink and drive, we lower the legal limit, effectively raising the punishment because the message is not getting through. The same goes for speeding and speeding tolerances. In cases where the penalties do not deter the crime, the response is often to raise the punishment.

    Given the level of Maori offending, surely the response is tougher scentences for Maori.

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  25. wikiriwhis business (3,883 comments) says:

    ‘When too many people drink and drive, we lower the legal limit, effectively raising the punishment because the message is not getting through. ‘

    The real reason the drink driving level was lowered is because drivers are too educated now and revenuing has become harder. Follow the money trail

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  26. F E Smith (3,315 comments) says:

    Contrast to British courts who will uplift sentences to sanction vexatious and frivolous appeals. Lords Goddard and Parker (successive Lord Chief Justices) were well known for upping sentences when hearing appeals. Despite all the horrid things said about him, Lord Goddard IMO was a good judge.

    That is an old argument that doesn’t stack up.  It was tried by (I think) both Jack Straw and the Daily Mail, but was found to be factually false.   From memory, the number of reductions by the UK Court of Appeal far outweighs the numbers of uplifts. 

    Plus, if the judges uplifted sentences simply because they thought the appeal was without merit then they were acting unethically and contrary to law.  The correct response to an appeal that does not have merit is to dismiss it.

    Anyway, if we criticise judges who give sentences that are considered too light, why don’t we do the same when they are found to have sentenced too heavily?

    Getting a sentence appeal allowed by the NZ Court of Appeal is not easy, and doesn’t happen very often.  Happens more often in the High Court, however.

    fernglas,

    of course we can raise potential avenues for our clients to consider, we would not be doing our job if we did not.  But even if it was Rapley’s suggestion, once he is on his feet arguing the point he is speaking on behalf of his client, not himself, and the submissions are made in his client’s name and on his client’s instructions.

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  27. F E Smith (3,315 comments) says:

    Given the level of Maori offending, surely the response is tougher scentences for Maori.

    Quite frankly, that is an appalling statement.

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  28. lilman (931 comments) says:

    Mr Smith whats appalling is the response of Maori leadership with regard to offending and responsibility.
    In short ,your full of guilt.

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  29. Nigel Kearney (919 comments) says:
    Given the level of Maori offending, surely the response is tougher scentences for Maori.

    Quite frankly, that is an appalling statement

    That’s not what you said about Rapley arguing for tougher sentences for non-Maori.

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  30. Steve (North Shore) (4,524 comments) says:

    Go to jail, do not pass Go, do not collect $200 – and take your lawyer with you

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  31. F E Smith (3,315 comments) says:

    Mr Smith whats appalling is the response of Maori leadership with regard to offending and responsibility.

    In short ,your full of guilt.

    I dont’ get that last bit.  Can you explain it, please?

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  32. dad4justice (7,979 comments) says:

    Mr Smith brotown is jail.

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  33. Paul Marsden (990 comments) says:

    Is Mr Rapley conducting this appeal pro bono and will the appellant pay Court costs if ordered?

    Almost certainly, the taxpayer will be funding this entire charade.

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  34. F E Smith (3,315 comments) says:

    Hey dad, haven’t heard from you in a while! How’s things?

    Anyway, I get the first part of what lilman said, although I only partially agree with it (everybody is responsible for their own actions, so using society as an excuse doesn’t fly with me), but I still don’t get the last bit about ‘your full of guilt’.

    I like Rapley’s submission. It probably won’t work, but defence lawyers have always made submissions that require the law to be defined by the Court (by the way, that is what we call the Common Law, Mr Truth) and often they have been considered outrageous or novel at the time but eventually become accepted law. A good example (in tort law) is the famous case of Donoghue v Stevenson…

    I am not saying that I would accept Rapley’s submission (I wouldn’t) but it does mean that we will (hopefully) get a decision detailing why. Hopefully the CoA gives us a good exposition based upon principles, rather than finding an out that means they don’t have to address the issue!

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  35. F E Smith (3,315 comments) says:

    Is Mr Rapley conducting this appeal pro bono and will the appellant pay Court costs if ordered?

    On the first point, why should he?  And on the second, the answer is no because the appellant has a right of appeal.  Until you require the prosecution to start paying costs on failed prosecutions, don’t try to require defendants and appellants to pay costs when they lose.

    Almost certainly, the taxpayer will be funding this entire charade.

    So?  Do you think the prosecution was privately funded?

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  36. Paul Marsden (990 comments) says:

    I would assume the taxpayer has already funded the defendant’s case to date, and I don’t necessarily have an issue with that.

    Mr. Ripley must know that this appeal is an absurdity and I can only assume he is short of client’s, and he’s wants to put food on his table for Christmas dinner, gratis the taxpayer.

    Mr Smith, would you care to extrapolate on your comment “submissions that require the law to be defined by the Court”? What “law”?? Under the same circumstances, could you seriously advocate (for example) some blonde bimbo appealing to the COA because she is blonde or, (more seriously), perhaps somebody with an IQ slightly below average? And so it goes on for infinity.…

    As a lawyer Mr Smith, just where does one draw the line where matters need to be defined by the Court and particlulary when it comes to ethnicticity ….??

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  37. slightlyrighty (2,499 comments) says:

    Dear F E Smith.

    When I said “Given the level of Maori offending, surely the response is tougher scentences for Maori,” you rightly called it an appalling statement. My toungue was a bit in cheek when I said it, but you highlight an important point.

    The notion that a persons ethnicity should in any way be a factor in how they are treated by the law is abhorrent. The flip side of lower sentences for Maori is higher sentences for non Maori. Would you be happy with a sentence 10% higher for every non Maori appearing before the courts.

    My comment was designed to highlight the stupidity of the notion and those who would support it.

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  38. F E Smith (3,315 comments) says:

    slightlyrighty,

    my apologies, I didn’t get the sarcasm. I admit that I was surprised at that one coming from you! I agree with the rest of your 7.35am comment, but would point out that Rapley is simply making a submission based upon something that the politicians have put into the Sentencing Act. Surely it is something that therefore needs to be tested, to determine what the but about culture actually means? If it shouldn’t be tested, then why have it there in the first place?

    As I have said previously on KB, much of the bad stuff that the legal profession gets criticised for is actually a result of politicians passing poorly worded laws, not because of anything we have actually done.

    Paul Marsden,

    Mr. Ripley must know that this appeal is an absurdity and I can only assume he is short of client’s, and he’s wants to put food on his table for Christmas dinner, gratis the taxpayer.

    As I have just said, the politicians put this in the Act, so the submission is a valid one, at least until that subsection is fully defined.  Moreover, I can assure you that Mr Rapley is in no need of clients.  He is a very busy man and has no shortage of work, both private and legally aided, nor would I think he is in need of food for his Christmas dinner.

    Don’t forget that the legal aid belongs to the client, not the lawyer.  We accept a signifcantly lower charge out rate in order to assist people who cannot afford our services privately. 

    Mr Smith, would you care to extrapolate on your comment “submissions that require the law to be defined by the Court”? What “law”?? Under the same circumstances, could you seriously advocate (for example) some blonde bimbo appealing to the COA because she is blonde or, (more seriously), perhaps somebody with an IQ slightly below average? And so it goes on for infinity.…

    Ssection 8(i) of the Sentencing Act 2002 is the relevant section of the law, I think.  And, no, the blonde would not qualify because hair colour is not mentioned in the Act.  Do you think we make these things up and then argue it?  We don’t, politicians put dumb stuff in laws and then we have to work out how far it goes.

    As a lawyer Mr Smith, just where does one draw the line where matters need to be defined by the Court and particlulary when it comes to ethnicticity ….??

    Well, when Parliament says that it is relevant, then it must be considered.  Your problem appears to be more with the parliamentarians, as Rapley’s submission is a logical progression from what they enacted.

    If the concepts are not in the law, then we don’t generally advance them, so there is a limit and it is set by the Politicians, not the lawyers.

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  39. Shazzadude (522 comments) says:

    Why we’re taking the attention seeking of a killer seriously enough to have a national debate I don’t know.

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