Guest Post: Appeal Court refuses to apply LWOP

August 15th, 2016 at 7:00 am by David Farrar

A guest post by David Garrett:


The Court of Appeal has released its decision in the cases of two murderers who, if “three strikes” (3S) had been applied by the High Court as the law is written, would both have been sentenced to Life Without Parole (LWOP). The two cases are of great interest for a number of reasons: they are the first two such cases to be considered by the Court of Appeal, and the fact situations in both are very dissimilar. One thing applies to both however – and indeed to every other such case yet to come before the High Court – the offenders have benefited from the “manifestly unjust” provision in section 86E of the Sentencing Act.

Far from being rare and exceptional, as parliament clearly intended, it is little short of miraculous that in the five cases of second strike murder to come before the courts thus far, in all of them the Judges have found that to apply the law as written would be “manifestly unjust” and instead imposed “life” sentences with minimum non parole periods.

The facts

Both cases – R v. Harrison and R v. Turner – involved murder as a second strike offence. Other than that, both the offences and the offenders are rather dissimilar.

In R v. Harrison, a patched Mongrel Mob member of some thirty years standing was a party to a murder committed by a gang “prospect”. The victim was probably another gang member, although that is not certain. Although Harrison did not pull the trigger, the High Court found, and the Court of Appeal agreed, that both were involved in a “common criminal purpose”, and therefore although he didn’t actually shoot the victim himself, Harrison was just as guilty as the shooter.

Harrison had a long criminal history including a manslaughter in 1987, a conviction for wounding with intent to injure in 2005, and a conviction for assault in 2007.

His first strike offence – which put him in line to receive LWOP for murder – was what the Crown conceded was a relatively low level indecent assault. Harrison had brushed his hands over the breasts and buttocks of a female cop, and had been convicted of indecent assault. It is probably fair to say that if he was not a gang member, and the victim had not been a cop, he would probably have got away with common assault, or perhaps not been charged at all.

R v. Turner was a nastier case. Turner was a man of 29 who had lived on the streets since he was 15. He had a history of drug and alcohol abuse, and had amassed 110 previous convictions, 22 of them for violence. Although the usual claims of mental illness were made on his behalf, there was no evidence that he was mentally ill, either in the medical or legal senses.

Turner’s victim was a fellow homeless man who was about twice his age. After his arrest, Turner told police that he had visited the victim twice on the night in question, and returned a second time “sober as” with the express intention of killing him. Turner repeatedly stomped on the victim’s head over a period of about 30 minutes; mercifully it appears the victim was dead after the first couple of stomps.

Turner’s first strike offence was much more serious than Harrison’s – an assault with intent to injure inflicted on a former girlfriend. After a prolonged attack, the victim suffered traumatic brain injuries and had teeth knocked out. She was put on life support, and was hospitalized for 14 days. At the time he committed murder, Turner was on parole for the assault on his girlfriend, and had been out of jail only about two months.

The cases in the High Court – reasons for not imposing LWOP

In the High Court, both Harrison and Turner were convicted of murder. In both cases two different Judges declined to impose LWOP for different reasons, although both cited the disproportionality of LWOP. Harrison was sentenced to “life” with a minimum non parole period (NPP) of thirteen years. In his case, the Judge avoided what she acknowledged was the presumptive sentence of LWOP by reference to Harrison’s first “strike” offence – the low level indecent assault.

In her judgment, the Judge opined that parliament cannot have intended LWOP to be imposed for a second strike murder where the first strike offence was “relatively minor offending of its kind.” With the greatest respect to the Judge, I am aware of nothing said in the parliamentary debates from the government benches which supports such a conclusion. On the contrary, the entire regime was based on a list of “strike” offences, all being violent offences, and all carrying a maximum sentence of seven years in prison or more. The idea – of which more later – was that repeat strike offending would attract exponentially more serious punishment. Nowhere in debates was it said that if the first strike offence was relatively low level, the presumption(s) at strike two would change.

It is unarguable that Harrison’s indecent assault was at the lower end of the scale – the type of “drunken grope” which Graeme Edgeler pointed to as being problematic when the Bill was being debated. But again with respect, in my view that is not the point – Harrison was convicted of a first strike offence, and having committed murder as a second strike, there was no good reason not to apply the law as written.

The High Court in Turner found a different set of reasons for not imposing LWOP on him. The Judge focused on the fact that at 29 years of age, LWOP could lead to Turner spending up to 50 years in prison given his life expectancy of 75-80 years. He also said that because of his relative youth, it could not be said that he was beyond rehabilitation, although even the Judge thought his prospects of same very limited.

In both Harrison and Turner the High Court judges referred to the disproportionate sentences which would be imposed because of 3S unless the “manifestly unjust” provision was applied. With the greatest of respect to both Judges – and indeed the five Judge Court of Appeal bench which heard the appeals – if their Honours had read the parliamentary debates carefully, they would have known that it was exactly this disproportionality which was the entire point of the legislation! Instead of a series of incrementally slightly longer sentences for multiple instances of violent offending, 3S quite deliberately imposes an exponential two or three step regime: first offence just as before; second offence sentence to be served without parole; third strike offence to attract the maximum penalty for the offence in question.

Disproportionality was not only quite acceptable to the Nat-ACT government of the day, but was the intention, and this is made very clear if one reads the parliamentary debates, particularly at Committee stage. I recall making this point every single time a Labour member got up to bleat about disproportionate consequences for second or third strike offenders. While it is just possible to put Labour’s bemoaning this point down to ignorance or lack of understanding, one would not naturally come to either conclusion when talking about High Court and Court of Appeal Judges.

The cases in the Court of Appeal

In the Court of Appeal the Crown argued – quite correctly in my view – that the Judge in Harrison had effectively reversed the presumption in favour of LWOP for a second strike murder, and sought to find reasons to justify that reversal. The Court of Appeal did not agree.

Again, and somewhat perplexingly for me, their Honours focused on the disproportionality of the sentence of LWOP and the “life” with a 13 year minimum NPP which would otherwise be, and in fact was, imposed. Again with the greatest of respect to them, it seems to me that their Honours simply “didn’t get it”, or more concerning, perhaps they didn’t want to. As I have already noted, disproportionate sentencing outcomes at strike two and three was the entire point and intention of the legislation. Harrison’s sentence was left undisturbed: life with a minimum NPP of 13 years.

In Turner’s case the Court of Appeal were somewhat more critical of the sentencing Judge, and while LWOP was rejected, the NPP was increased from 15 to 17 years. In Turner the Judge at first instance had taken the view that because the murder in question was not “the worst of the worst”, and the defendant was not clearly beyond rehabilitation, parliament cannot have intended LWOP to be imposed on him.

The Crown argued – quite correctly in my view – that Turner was exactly the kind of violent offender, whose offending was getting exponentially worse, that 3S and its mandatory provisions was aimed at. Preventing further harm to innocent victims by incapacitation – locking them up – was always the primary purpose of the 3S regime. Rehabilitation or deterrence, if they occurred, would be happy bonuses.

The Court of Appeal held that the trial judge had erred in concluding that the presumption of LWOP at stage two for murder only applied to the worst murders. Their Honours went further, and pointed out that at the same time 3S was put in place, another amendment to the Sentencing Act was made which provided for LWOP for “the worst murders” regardless of an offenders strike history. (See s.103 (2A) of the Sentencing Act). That particular amendment – supported by both ACT and the Nats – went unremarked at the time because all the attention was on 3S.

The Court of Appeal also found that the trial Judge had erred in considering Turner’s prospects of rehabilitation, although they found that that error was not “fundamental” to the Judge’s overall conclusion that LWOP should not be imposed. The Court of Appeal Judges focused once again on the “disproportionality” of the LWOP sentence as compared with what would otherwise have been imposed – in Turner’s case, “life” with a minimum NPP of 15 years.

Again, and with the greatest respect to the Judges, I find it hard to follow their reasoning on this point – and it is certainly not supported by anything said in parliament on the government side, even when Simon Power was in charge of the Bill. In short, the Court of Appeal have decreed that, in deciding the meaning of “manifestly unjust” in the 3S context, it is their job to “balance” what is imposed prima facie by s.86E of the Sentencing Act (the section which imposes LWOP for a second strike murder) with s.9 of the Bill of Rights Act (BORA) which precludes “disproportionately severe” punishment.

In making that finding, the Judges purported to find that the intention of parliament was not inconsistent with their reasoning:

“We assume that Parliament, in introducing the new sentencing regime for repeated serious violent offending, intended that any sentence imposed on an offender should not be grossly disproportionate to the circumstances of the offending and the offender contrary to s.9 of the Bill of Rights Act…”

Again with respect, it seems to me that the Judges are taking it upon themselves to decide whether the sentences which 3S gives rise to are in breach of BORA, rather than acknowledging the correct position – that parliament enacted 3S fully aware not only that disproportionate sentences would result, but with that express intention.

Still, the Judges’ discussions on the BORA are not all bad news for the legislators. Although they pointedly left the full discussion for another day, it seems fairly clear that when the issue is addressed fair and square, the conclusion will not be that the legislation itself breaches the BORA. Their Honours noted with approval dicta in other cases which talk of “…conduct which is so severe as to shock the national conscience” and the Canadian test on their BORA: “conduct which outrages standards of decency”

Given that at the time the legislation was passed 87% of the public were in favour of it, it would be hard to argue that any aspect of 3S would meet that extremely high threshold. Although it is of course entirely unscientific, I have found that when the 3S regime is properly explained to them, even those who are generally on the left fully support it. The usual response is in fact “why not just one strike?”

The Crown may appeal the result of either or both cases to the Supreme Court – I have no idea whether they will. My guess is that they will not, but rather save their powder for another day, and a somewhat clearer case – perhaps a Turner type offender who is 45 and not 29. In the meantime, a further four LWOP cases are awaiting hearing in the Court of Appeal. The Judges’ approach to those cases must be consistent with their findings and conclusions made in these two. Given their conclusion that such cases are “intensely factual”, we may yet see an LWOP sentence imposed. Then of course, it will inevitably be off to the Supreme Court for a final decision.

It is extraordinary that in five out of five cases the judiciary has not given life without parole but found all of them would be manifestly unjust. The manifestly unjust provision was intended to be an exception for exceptional circumstances – not used in every case.

Guest Post: David Garrett

July 8th, 2016 at 7:00 am by David Farrar

A  guest post by David Garrett:

R vs. Shailer and Haerewa – The Attorney General’s explanation raises more questions than it answers.

Last Monday, Tania Shailer and David Haerewa were sentenced in the Rotorua High Court for the “manslaughter” of three year old  Moko Rangitoheriri. The sentence of 17 years was  one of the longest – if not the longest – imposed in New Zealand for the manslaughter of a child. The two animals who killed Moko must serve at least nine years before being eligible for parole. Sadly, the sentence will almost certainly be appealed, and probably reduced.  Even if it is not, Moko’s killers will spend much less time in jail than they would have if they had been convicted of murder- as I believe they undoubtedly  would have been  if they had faced trial for the murder charges originally laid against them.

The sentence – manslaughter vs, murder

Let me clarify the issue of sentence length. The ill informed have claimed that the sentence handed down  is about the same as they would have got for murder. That is utterly wrong. Had the killers been convicted of murder, the Judge could have sent them to prison for the rest of their lives under changes to the Sentencing Act  made in 2010. It would have been a brave Judge who imposed the first ever LWOP sentence handed down in New Zealand, but last Monday Justice Katz showed herself to be not lacking in courage, and not particularly concerned about the almost inevitable appeal.

Had she not imposed LWOP, she would certainly have been persuaded that a life sentence with a minimum non parole period (NPP) of at least 17 years was appropriate – in other words an NPP of double what Shailer and her odious boyfriend received for manslaughter.

They would have been given an NPP of at least 17 years because of s.104 of the Sentencing Act, which lists 10 factors, any one of which justifies increasing the minimum NPP for murder from 10 years to at least 17.  In Moko’s case, there were  at least two such factors: that the murder was committed with a high degree of brutality, cruelty, depravity, or callousness; and that the victim  was particularly vulnerable because of his age.

So, in my view and in the view of many others with an understanding of the criminal law, Moko’s killers literally got away with murder. Why and how did that happen?

Here is what we know: 1) The Crown originally laid charges of murder against the pair; 2) at some later point, negotiations were initiated by one side or the other, and a deal was done under which Shailer and Haerewa would plead guilty to manslaughter; 3) the original murder charges were then withdrawn, and manslaughter charges were laid in their stead, to which the killers then, no doubt very gratefully, pleaded guilty.

Here is what we don’t know: 1) If there were all the claimed  myriad problems in obtaining a murder conviction against one or both, why were the murder  charges laid in the first place; 2) who initiated the negotiations which led to the substitution of charges (the Attorney General doesn’t seem to like the colloquial term “plea bargain”) which led to the charges of murder being downgraded?

In response to various media criticism of the seemingly inexplicable decision – including an op-ed piece by retired Judge Roy Wade –  Attorney General Finlayson released a sneering condescending statement a couple of weeks ago  condemning “ill informed speculation on blogs and  in rags like the Sunday papers” and saying that he would explain “in words of one syllable” after sentencing why the decision was made.

The Attorney General’s explanation

Shortly after the sentence was announced last Monday, Finlayson released his “explanation” – a statement that was markedly less imperious and insulting than his first. I have little doubt that John Key had a hand in the markedly different tone in the second statement.  The problem – as Judge Roy Wade and others quickly noted – was that the “explanation” raised more questions than it answered. In fact, the explanation was – at best – disingenuous.

For a start, Finlayson claims that the problem with the  murder charges lay in proving “murderous intent”. Proving an intention to murder is always problematic: very few killers shout “I am going to kill you” – in the presence of a surviving witness – before they shoot or stab someone. For that and other reasons, the Crimes Act provides  an alternative to murderous intent as the basis for a conviction for murder.

Section 167 (b) of the Crimes Act contains a two limbed test to found a charge of murder: firstly that an  offender “means to cause… bodily injury that is known to the offender to be likely to cause death”; and  secondly, that the offender is reckless as to whether death ensues or not.

We know from the evidence  – including the sickening pathologist’s report – what was done to Moko. His many potentially fatal injuries,  any one of which might have killed him, are now so well known that they don’t need repeating. Unlike the Kahui case – which other ill informed commentators have compared this to – there was no-one else in the frame: Shailer and Haerewa were the only two adults who could have inflicted the injuries. In addition, there was eye witness evidence of Moko’s eight year old sister – a child more than old enough to give evidence considered reliable.

While Shailer offered some doubtless spurious evidence of her supposed mental illness, neither killer claimed to be mentally sub-normal. Quite frankly, only a moron could possibly have thought that  the injuries they inflicted were not,  in the words of s.167 (b) “likely to cause death”.  It gets even worse for the killers. Harewa admitted to police that he had “killed Moko” by knowing how badly injured he was, and failing to seek medical help. (Statement of facts, page 8). And in her sentencing notes, Justice Katz found that Haerewa was the less culpable, albeit barely.

Justice Katz also found that the two killers were engaged in a “joint enterprise” – in other words the recklessness  of one was all that was required to convict both, especially if that recklessness is established as being present in the slightly less culpable of the two killers.

That technical point notwithstanding, it is simply not credible that both the killers did not  know that what they had done was life threatening. It is quite clear from what they did, and more importantly  didn’t do, that they were, at the very least,  utterly indifferent to what would happen as a result of the injuries they had inflicted. In other words, again to quote the Crimes Act, they were “reckless as to whether death ensued or not”

So why does the Attorney General  say the prosecution might have had difficulty proving “murderous intent”? They didn’t need to. They only had to prove the two limbs of s.167 (b), and there is an abundance of evidence to so prove.

The next question Finlayson’s statement fails to answer is why, if there were such problems, the charges of murder were laid in the first place? The Crown Solicitor at Rotorua is apparently a highly experienced Crown prosecutor with a number of murder trials under her belt. She evidently felt she had enough evidence to obtain convictions for murder, or surely she would not have laid the murder charges at the outset.

Nonetheless, for reasons still unknown, she changed her mind and entered into a plea bargain with the defence lawyers. Why did she do that?  We are told that certain damning  information only  came to light after  the deal was done, and that perhaps it would not have come out had the charges not been reduced. That is surely a very smelly red herring?  The decision to downgrade the charges, and accept a guilty plea to them,  was made before   the alleged further evidence came to light. It therefore cannot have been a factor in the decision to downgrade the charges.

Before turning to the final question, let us deal with the Attorney’s claim that plea bargaining doesn’t happen here. In so arguing, he is adopting a very narrow definition of “plea bargain”, one which applies in some of the states of the US but not others. In short, in some states the deal includes both the reduced charges and the sentence – we have all seen the American TV shows. In others, just the reduced charges are agreed, and the Judge is presented with a range of sentencing options. In still other states, a Judge must sign off on the deal. The fact is,  what is now happening here is plea bargaining in all but name.

Lastly, we do not know whether the defence or the Crown  initiated the negotiations which led to the plea bargain. What we do  know is that under changes made in 2013, the Crown may initiate such discussions, and not just maintain the charade that such discussions are  always initiated  by the defence.  We do not know where the initiative came from in this case, and it would seem we will now never know – or at least not until the information leaks in the gossip ridden legal fraternity, as it always does.

Last Monday thousands of people marched, some in the most inclement weather, demanding Justice for Moko. Did he receive it? Not as far as I am concerned he didn’t. It remains a shameful and shabby case which reflects little credit on many of the players involved in it. Not least the system that now allows such deals as were made to be done.

Guest Post: Why were Moko’s killers’ charges reduced to manslaughter?

June 7th, 2016 at 7:00 am by David Farrar

A guest post by David Garrett:

 Why were Moko’s killers’ charges reduced to manslaughter?

It is now almost a month since it became publicly known that the people who stomped and bashed and strangled little Moko Rangitoheriri to death over a two week period had had their murder charges reduced to manslaughter, to which they no doubt very gratefully pleaded guilty. Despite commendable media scrutiny, the public are still none the wiser as to  how this seemingly inexplicable decision came to be made.

And inexplicable it is, to a number of senior  criminal defence barristers I have consulted. The statement of facts has now been leaked. I am told it is a dreadful tale of lengthy abuse and multiple life threatening injuries, any one of which could have caused Moko’s death.  There is absolutely no doubt that all  of those injuries were inflicted by Tania Shailer and/or her boyfriend David Haerewa. Unlike the Kahui twins’ debacle, no-one else is in the frame.

One early story quoted “a family member” having been told by the Crown Solicitor in charge of the prosecution that because Moko did not die immediately, but later in hospital, a murder charge could not be pursued. The Crown Solicitor emphatically denies that any such conversation took place, and confirms that any such downgrading of murder charges  to the lesser charge of manslaughter must be approved by the Solicitor General, and that is what happened in this case. In other words, the buck stops with the person effectively in charge of all Crown prosecutions, the Solicitor General Una Jagose. But neither she nor anyone from her office are talking.

I am aware of many media enquiries being made seeking an explanation from Ms Jagose. Apparently more than one reporter now cannot speak to anyone  at the Solicitor General’s office, let alone the woman herself. When I called seeking an e-mail address for her I was grilled as to who I was, and why I wanted it.  In my view this is outrageous – it should not matter if I was the barrister from Auckland that I am, or a concerned truck driver from Timaru.

The Solicitor General is a public official, not the Queen. She is appointed to fill the highest non political legal office in the land.  It is ultimately she who provides legal advice to  the government, and oversees all serious criminal prosecutions. It is to her we entrust the prosecution of the evil persons among us who commit heinous crimes, rather than take the law into our own hands. She ought to be accountable to us,  the people on whose behalf she acts.

She is not a Judge. It is an important constitutional convention that Judges occupy an exalted status above the rest of us – both barristers from Auckland and truck drivers from Timaru. No-one writing to a Judge  seeking an explanation for a sentence will get a reply. If the writer of such a letter was a lawyer, he would probably have a complaint laid against him with the Law Society.

But there is a very important difference between the decisions of  Judge and the decisions of a Solicitor General.  Judges issue sentencing notes which explain in sometimes tedious detail how a particular sentence was arrived at – an addition for this aggravating factor,  a deduction for that supposedly mitigating factor. Here we have absolutely nothing from the Solicitor General – no explanation, not even a statement.

It is not as if this explanation will come on 27 June, the day Shailer and Haerewa receive their now unavoidably inadequate sentence. The Judge will simply see the summary of facts, and be told that the Crown has accepted a plea of guilty to manslaughter. Neither he nor any other Judge has had any involvement  with the plea bargain which has preceded the fait accompli he will be presented with. It is very unlikely he will even comment on it.

It is simply not right for the Solicitor General to maintain an imperious silence in her office in Wellington. Politicians explain the reasons for their support of  or opposition to laws being passed in parliament. Judges explain the reasons for their decisions in open court for all to hear, and in their sentencing notes. If there is  a reason or reasons  for this seemingly inexplicable decision then let’s hear it.  The people ought not to be treated with such disdain. They have a right to know.

Guest Post: David Garrett – Plea Bargaining in New Zealand – a primer

May 10th, 2016 at 2:00 pm by David Farrar

A guest post by David Garrett:


The murder – and that is undoubtedly what it was – of three year old Moko Rangitoheriri has dragged the system of state initiated plea bargaining into the light. Over a period of weeks, Tania Shailer and her boyfriend David Haerewa bashed, stomped, strangled and kicked little Moko to death. His injuries were so bad that his mother had trouble recognizing him, and the pathologist had difficulty determining which of his many life threatening injuries had actually killed the little boy.

Shailer and her scumbag boyfriend were quite rightly charged with murder under a section of the Crimes Act which deems intent to kill  to be present  where life threatening injuries have been inflicted, and the defendants are reckless as to whether death will result.  Inexplicably, a sleazy plea bargaining deal was done under which the charges against Moko’s killers were reduced from murder to manslaughter. How could that have happened?


Although it has never been publicized, plea bargaining has been a reality in New Zealand for at least the last 25 years or so.  The major change in recent times is that the initiative for the negotiations aimed at agreeing on a lesser charge a defendant will plead guilty to may now come from the Crown as well as from  the defence. Some defence barristers are of the view that the Crown now has, because of funding changes, (see below) an incentive to initiate these kinds of deals, whereas in the past,  they resisted them.

Historically,  plea bargaining negotiations were initiated by the defence. Let’s consider a fact situation from a real case which I am familiar with. Two men hired a taxi, ostensibly to take them from one town in Taranaki to another. Once the cab was out of town, the men demanded that the driver hand over his money, and give them the car. He resisted both demands. One offender then produced a hammer, and while saying “I’m gunna kill you, you cunt”, bashed the driver until the cab ran off the road. The men severely beat the driver, stole the cab, and left the driver for dead. They were quickly apprehended, and charged  inter alia with attempted murder. 

Once lawyers had been instructed, negotiations were initiated with the police and Crown Solicitor. I am told that attempted murder is a difficult charge to prove (the element of intent being the difficulty) even when, as in this case, clear threats to kill had been made by at least one offender. In the event, the attempted murder charges against the pair were withdrawn, and both pleaded guilty to  lesser charges.

It is important – and perhaps not easy – for lay people to understand that when the defence  attempts to get charges reduced, they are simply doing the job which ethics demands of them. Lawyers who do criminal defence work are committed to getting the best possible deal for their clients – both in terms of charge and sentence – and to testing the police/Crown case thoroughly. Although many may find it distasteful, it is wrong to criticize defence lawyers for initiating these discussions. They are simply doing their job.

Funding of prosecutions

Traditionally, the Crown solicitor in any particular area of the country had complete discretion whether to proceed with a prosecution of the original charge he had laid, or to negotiate with the defence, if they  proposed a lesser charge to which the defendant(s) would plead guilty. This system created an incentive for prosecutors to take cases to trial – they were paid per day  of court time. Perhaps this also partly explains why murder trials which fifty years ago would be completed in a week, now take three or four, or even longer. The Crown didn’t care how long the trial took – they got paid for every day of the trial.

As a result of the above system, having the Crown Warrant for any particular area was widely seen as a licence to print money – crime is always going to be with us, and a hard arse prosecutor could theoretically take every case to trial, even when it was likely that  the evidence would not support the charge being prosecuted. Given that most serious offenders are on legal aid, the result of the old system was an ever growing blowout in the legal aid bill.

Changes to the sytem were introduced three years ago. The main change was that rather than the Crown Solicitor – and his or her juniors – being paid for every day they spent in court, they are now “bulk funded.” In other words, every Crown Solicitor is given a sum of taxpayers money annually which they spend on the prosecutions in their district. The amount they are paid remains the same, whether 100% of cases go to trial or only 10%, with the other 90% resulting in  negotiated guilty pleas to a lesser charge or charges.

This has apparently created a reverse incentive from the old system: it is now very much in the Crown’s interest to “plead down” cases, and save the $1-5 million that a major trial may cost. That means that for those cases which do  proceed to trial, the Crown Solicitor is effectively getting a much higher hourly rate than if he or she had taken every case – or even most of them – to trial.

In addition to bulk funding, the second major change is that plea bargain negotiations may now be initiated either  by the defence or  the Crown. It appears that in Moko’s case, the negotiations were initiated by the Crown Solicitor at Rotorua, although I am unable to confirm that. As we will see, experienced defence barristers cannot understand why this case was plead down.


It is acknowledged that the old  system – under which Crown Solicitors could take any and every case to trial –  created an incentive to try more cases for longer than perhaps justice would demand. It now seems clear however, that we have created the opposite incentive – one that rewards Crown Solicitors for disposing of cases by way of plea bargain where they feel so inclined – regardless of the legal merits or the justice of the outcome.

I have spoken to two senior defence barristers about this present case. Both are bewildered by the decision to downgrade the charges – one said that if the reported facts are correct, he would not even have bothered trying to get the charges reduced for these two killers.

It is clear that the reform of the system which had led to the legal aid budget blowout has created the unintended consequence of giving Crown lawyers an incentive to avoid trials where justice demands that a trial ought to have taken place, and therefore  allow  a  jury to  decide whether the facts support a verdict of murder or manslaughter. As with my criminal barrister colleagues, I am very firmly of the view that this case is one where the defendants were properly charged with murder, and where no plea bargain ought to have been made.

That said, it is clearly not an option to simply revert to the old system which reversed the incentive, and gave Crown Solicitors a licence to print money.  One simple and effective solution would perhaps be  to require Judges to approve plea bargaining deals  which involved murder –  either all murders, or just those where children are victims. That is the arrangement in a number of American jurisdictions – if the Judge doesn’t like the deal, there is a trial on the originally laid charge.

It is important to understand that cases like this will be happening all over the country every day. It is only due to good fortune – and in fairness some good journalism – which has led to this particular case, and the system which has allowed it to happen, to be dragged into the light.

Guest Post: David Garrett on A case for immediate cessation of all Muslim immigration

December 3rd, 2015 at 3:00 pm by David Farrar

A guest post by David Garrett:

I recently found myself in an argument with the wife of an old friend over Muslim immigration. By an accident of sychronicity, I had just finished Volume I of Sir Winston Churchill’s WW II memoirs, “The Gathering Storm”, which covers his period in the political wilderness in the 1930’s. In developing my argument with my friend’s wife, I saw striking parallels with where we are now with regard to Muslim immigration, and the position of Western Europe during the latter 1930’s. [Yes, I know…Godwinning myself in the first paragraph. So be it.]

When pressed as to why she thought Muslim immigration was such a good thing, my opponent frequently used the word “diversity”, as if that in itself explained all, and  was the end of the argument. I tried in vain to get her to expand on just what she meant, and why diversity of that kind was something good.

To try and get her to think more deeply, I gave an example. I asked her to imagine that next door to their bungalow in leafy  Remuera there lived a strictly observant Muslim family, the mother in her black tent walking dutifully behind her husband, carry the groceries and anything else he required his subject wife to do.  The little girls of the family with their heads but not yet their bodies covered, and their mode of  playing tightly prescribed. The boys modelling themselves after their unsmiling bearded father, and doing none of the things my host’s children did.

Mrs Remuera was unable to say quite how the presence of that imaginary family – with their way of life so utterly different from ours – gave a richness and vibrancy to her neighbourhood, the wider community, or our country. Her husband, gallant gentleman that he is, tried to assist his wife by wanly suggesting that Arab food was “really very nice.” I think he was only partially serious. I’m sure there  are cafes in Auckland serving Arab food, but  I have not seen them. “Much wider choice of ethnic foods” is of course one of the best and most commonly cited  examples of how diversity enriches us.

Why should we worry?

It is really very simple. Every western country which has allowed its Muslim population to exceed 2% has experienced problems generated by that community – or at least arising because of their presence within those societies. The severity of the “problems” appears directly related to the proportion of Muslims in any given western society.

In Britain, France, Germany, Holland, Sweden – and now Australia – there have been civil disturbances which can be directly linked to the presence of a sizeable Muslim community. Those disturbances range from harassment of women dressed “immodestly” at the low end, to mass murder – most recently in France – at the other.

I have always thought that George Santayana’s famous dictum about those who do not learn from history being destined to repeat it is the crème de la crème of philosophical observations. I have asked the question many times – on this very blog and in my life in the real world – “why would our experience of allowing a Muslim population to develop above 2% be any different from that of all other western countries’?”  The usual response is that there is no evidence of anything bad happening here. The response to that non-argument is of  course “not yet – we  have not yet reached what appears to be  the tipping point of 2%”.

I truly believe we are, in a very real sense, in exactly the position Western Europe was in the  early 1930’s. The prevailing sentiment among both  the political elites  and the population of Britain at large was then, as ours is  now, one of tolerance, or at least wilful blindness to the dangers posed by the rising tide of fascism in Germany. It is important to be reminded that the very word “fascism” had none of the pejorative connotations in 1933 that it most definitely carried ten years later.

While some laughed at Hitler’s histrionic posturing, there was widespread support for the view that both Hitler and his model Mussolini had “made the trains run on time”, had reduced unemployment in their countries, and that those countries were handling the effects of the depression far better than the democracies. In all European countries there were fascist parties openly advocating the same type of polices. In Britain, the British Union of Fascists – led by a brilliant former cabinet Minister – had a great deal more support than those few surrounding Churchill, who was derided as a war monger, and “yesterday’s man.”

Do we not now have a very similar situation?  Our rulers and the political elites seem blandly unconcerned about Muslim immigration into our country, and deride people like me who warn of the possible consequences of it. I recently received a letter from the colourless Minister of Immigration in response to my letter expressing concern. The Hon. Minister tartly informed me that: “New Zealand does not select [immigrants] on the basis of race or religion.” How utterly un-reassuring. One can almost see the rolling eyes of the 22 year old staffer drafting a reply  to “another crack pot”. The letter did not even warrant the Minister’s signature.

Why act now?

Again it is very simple – if we don’t act now, it will be too late if doomsayers like me are right. We are endlessly lectured by the greenies about “tipping points”; that if this or that greenhouse gas emission is not reduced to some unfeasible level  by next week,  unstoppable catastrophic climate change will ensue. Once it has happened, we are told, it will be too late to reverse it.

Well, I know very little about climate change, but simple logic tells me that if I am right about the dire effects of a Muslim population above 2%, it will be impossible to do anything about it. The reason is again simple. We have 50,000 odd Muslims now, a bit more than 1% of our population. There are nowhere near enough of them to cause any significant trouble – yet.

Even if we closed our borders to all of the Muslim faith immediately  – I would go further than that, and exclude all  immigrants from predominantly Muslim countries – we could not stop the ones we already have from multiplying. Given their greater birthrate, it is a certainty that in 10 or perhaps 20 years at the most, we will have a Muslim population well above the crucial tipping point of 2%.

If I am right, and we are then seeing harassment of women dressed in ways the bearded ones do not like – or much worse – what then could we do about it? Very little. Again, if we follow overseas experience,  the harassment and terrorism will be perpetrated not by the immigrants we have so blithely let in ten or twenty years before, but by  their New Zealand born children.

 All of the atrocities that I am aware of in Western Europe have been perpetrated by young Muslims born in their host countries (although early reports suggest that some at least of the terrorists responsible for Paris have slipped in with “genuine” refugees.) If the same thing were to happen here ten years down the track, there is absolutely nothing  we could do about our local Muslim community. As we have just learned from the Australians, we are stuck with our citizens, however unsavoury they may be.

Let’s just say for arguments sake that I am wrong – not being a leftie, I am never absolutely certain of anything. What do we lose by stopping Muslim immigration right now? My argument is that we lose absolutely nothing of value. Unlike the vibrant communities which have developed from our South East Asian immigrants – which by and large have had overwhelmingly positive effects on our society – there is nothing from overseas experience which suggests there is anything of value to be gained from having communities of stern bearded men and their subjucated women among us. And that’s assuming none of them are or could be  terrorists

Except, perhaps, a few cafes serving  the cuisine of Somalia, Saudi Arabia, or the Sudan. I can do without that, thanks very much. I much prefer that my beautiful daughter is allowed to go to the beach wearing whatever she likes, and that my son isn’t influenced by people who think his wife should also be his servant. Muslim immigrants are a very real threat to our way of life. We should not take one more of them.

For the avoidance of doubt, the post is the opinion of the author, not of Kiwiblog. Kiwiblog accepts guest posts, even when I disagree with the views in them.

Guest Post: All jails are bad

July 28th, 2015 at 7:00 am by David Farrar

A guest post by David Garrett:

All New Zealand jails are bad…apparently

The headline on Monday said “Jails bad. Full stop”. The story beneath revealed that – surprise surprise –  serious incidents occur  in  all  the country’s jails, both state and privately run. Even union boss Beven Hanlon, who usually repeats a “state prisons good, private prisons bad” mantra ad nauseum, was quoted as saying state run prisons were just as bad as privately run  ones. What is the problem?

First the basics. To get sent to prison in New Zealand you generally  need to be a really bad bastard. Those sent to prison have, on average, appeared in court eleven times,  before finally being sent to jail. That is eleven court appearances, not eleven charges. At each appearance, a criminal might be facing a number of charges. By the time prison is the sentence, all the other non custodial alternatives have been tried.

Prison inmates are, by and large, there for serious or repeated violence, class A drug dealing or manufacture, or sexual offences against both  other adults and children. Although people like Kim Workman imply inmates are largely poor unfortunates who had a bad day when they committed the offence(s) for which they are arrested and  jailed, this is nonsense. Anyone  who has any experience of our prisons – particularly the members of  Mr Hanlon’s union – will tell you so.

So, a group of violent dangerous men all grouped together without much to do;  places where ongoing problems and violence are just the way it is? Well, actually, no. I have been inside prisons in both New Zealand and the United States. The atmosphere in United States  prisons  could not be more different from those  in New Zealand.

In 2007 Garth McVicar, Stephen Franks and I made a study tour of  the US to learn more about three strikes laws – especially how to avoid the well publicised injustices which the early version of three strikes gave rise to in California. We also visited prisons and spoke to both prisoner lobby groups, public defenders, and probation officers. We learned a great deal.

In Arizona we visited both ordinary prisons and the famous tent jails for which Sheriff Joe Arpaio is so well known. The very first thing we noticed was how well behaved the prisoners were. Some of the guards  were middle aged women. None of the guards were armed. Prisoners obediently and quickly complied when one no nonsense lady ordered them to “stand up straight behind the line”. When ordered to move they moved. No-one answered back. No prisoner said anything. Talking wasn’t allowed.

At the tent jail we visited it was lunchtime.  For lunch the prisoners were  all in a large airconditioned  mess hall – about 200 of them. Our group was shown through by one  unarmed guard.  The men had the kind of faces and body language one sees in jails here. But the atmosphere was entirely different.

One or two of the prisoners shouted out derogatory remarks about the food they were getting. On the spur of the moment I decided to share lunch with them – a filled roll, a pot of yogurt and a piece of fruit – rather than the lunch laid on for us. As the men moved closer to our small group – and our lone guard – I instantly regretted my decision. I asked if we had anything to fear (whether we did or not I was already frightened). Our guard said “Oh no…they’ll move back if I ask them to”. And he did, very softly. And they did.

My first thought was this behaviour must be obtained through intimidation and violence. We asked if we could speak to the prisoners one on one, and speak to whoever we wished to. Our hosts readily agreed, and so we did. I remember stifling guffaws as one tattooed middle aged female  inmate told an earnest young journalist accompanying us that this was her first time in prison.

We were not told of any  violence by the guards, although many inmates complained that the rules were “ real strict man”. They moaned about the food, and of course about the oppressive heat in the cell blocks which were not airconditioned. What is not well known is that inmates volunteer for Sheriff Joe’s famous chain gangs, and being sent to tent jail is a privilege to be earned. Five minutes inside the blocks and you understand why.

Since that visit I have become aware of various claims of wrongful death in Arizona prisons. No doubt those commenting on this piece will post links to such stories with alacrity. It goes without saying that no-one should be killed in jail.

Some years after the US trip I found myself an MP, and made it my business to visit as many New Zealand prisons as I could. The atmosphere was starkly different from those in Arizona and California. There is an air of barely suppressed violence in every one. Most notably, the prisoners are visibly contemptuous of their guards. They know  the guards can do very little to them. The prisoners can no longer be put in solitary confinement or fed bread and water  for disciplinary infractions. No extra time can be imposed. Parole Boards no longer hear evidence  from those who have been in charge of the freshly scrubbed and shaved inmate appearing before them meekly claiming to be ready for release.

One short visit to a few US jails doesn’t make me an expert on prison management.  However one would have to deaf dumb and blind not to see the glaring differences between their prisons and ours. How do they do it? Would their methods be acceptable here? Would their methods be culturally transferable? I don’t know. What I do  know is I felt a damn sight safer in the company of one guard in Arizona than I did with half a dozen prison officers tagging along in New Zealand.

When even Beven Hanlon is saying public prisons are just as bad as the private ones, it’s time to take very hard look at how we are managing our prisons and our prisoners. It’s time to take some lessons from overseas, learn from them,   and where appropriate  adopt them here. Just as we did with three strikes.

Guest Post: Three strikes about to bite hard

October 9th, 2014 at 7:00 am by David Farrar

A guest post by David Garrett, former ACT MP:

Three strikes about to bite hard

When the three strikes (3S) bill was making its way through parliament I told Clayton Cosgrove – in response to an interjection – that it might be ten to fifteen years before 3S would really start to bite. Although Cosgrove immediately tried to make capital from my answer, I was not  unhappy with that prediction – in fact I thought it a little optimistic. In my view we have taken a generation to get into the mess we are in with violent offending, and it might take a generation to reverse it. It seems I was unduly pessimistic.

Unless there are extremely good reasons which would preclude such a result, we are about to get our first  “strike” offender sentenced to Life Without Parole (LWOP) for murder as a second strike.  Justin Vance Turner, aged 28, has pleaded guilty to murder. It is his second “strike” offence, and accordingly, he should be sentenced to LWOP in accordance with s.86E (2) of the Sentencing Act. That section requires that a stage two offender guilty of murder should serve a sentence of LWOP “unless the court is satisfied that given the circumstances of the offence and the offender, it would be manifestly unjust to do so.”

The “manifestly unjust” provision was one of the conditions the Nats required in order for them to support the 3S Bill beyond first reading. It did not take long for ACT to agree to the amendment. The words “unless…manifestly unjust” have already been defined in case law. It is a very high hurdle to surmount. If for nothing else, Justice Graham Lang’s sentence notes will be pored over by everyone interested in 3S to see what he says about that phrase in the 3S context.

So what  “circumstances of the offence and the offender”  could cause Justice Lang to sentence to life imprisonment with a finite minimum Non Parole Period (NPP) instead of LWOP? As for the offence, in my respectful view there is absolutely nothing which would justify giving Turner the benefit of the “manifestly unjust” proviso. If the news report is accurate, the hapless victim – a homeless man – was kicked and punched until unconscious, and then Turner “continued stomping on him with enough force that  his head bounced off the floor.”

Given that Turner told police his intent was to kill, it would seem he had little choice but to plead guilty – although I suspect the motivation for the plea at an early stage (the trial was to begin on 1 December) was to try and avoid LWOP on the basis of an early guilty plea. Again in my respectful view, that is no reason to depart from the presumption created by s. 86E (2). Nothing in the 3S provisions of the Sentencing Act suggest early guilty pleas should be a factor in sentence.

What about the “circumstances of the offender”? Because of privacy laws we know little about him other than he has a first strike to his name  for serious  violent offending. There is a suggestion from the terms of the remand that his fitness to plead may have been an issue, but clearly that is no longer the case.

Again in my respectful view, if the court was to find that because of some psychological condition falling short of a “disease of the mind” which would be a reason for an acquittal Turner was prone to episodes of extreme violence, this ought to be even more reason to lock him up for the rest of his life. It is clear from his actions that he is a menace to society, and given his age, he will be for a long time.

One option the Judge has is to decline to impose LWOP, but to give a very lengthy NPP – say thirty or even forty years. If the Judge chose to go down that route the sentence would almost certainly be appealed. That is no bad thing, as it would give the Court of Appeal the chance to make some observation on the decision to apply the “manifestly unjust” proviso, and on the length of minimum NPP that ought to be imposed if the proviso was applied.

Finally it should be noted that LWOP as a possible sentence for murder was not  part of the original 3S Bill, although it was passed into law at the same time. At the 2008 election both ACT and the Nats campaigned on making LWOP available for our worst murderers.  From the aftermath of the  2014 election it appears both ACT and the Nats have lost the appetite  for law and order measures. In time, 2008 -10 may come to be regarded as a brief “window”  which opened and allowed our justice system to start dispensing real justice to killers – and their victims.

BSA upholds complaints against Radio NZ over three strikes coverage

November 25th, 2013 at 4:00 pm by David Farrar

David Garrett complained to Radio New Zealand and then the Broadcasting Standards Authority about a Nine to Noon item on 29 May 2013 regarding the three strikes law. The BSA has ruled that the item was both unbalanced and inaccurate. Their ruling is here.

David has provided Kiwiblog with a guest post about the ruling:

“Three Strikes”, Radio New Zealand and the Broadcasting Standards Authority

 On 29 May Radio New Zealand’s “Nine to Noon” featured what was supposedly a panel discussion about how the “three strikes” (3S) law  was working, almost three years after its passing.  The only problem – or at least the  most obvious one – was that the panel consisted only of Professor John  Pratt,  who had voiced his strident views against the law from well before it was passed, and the lawyer for one Elijah Whaanga,  a man with 20 odd convictions as an adult, two of them  “strikes” for aggravated robbery.

 And of course there was the supposedly neutral  presenter, one Lyn Freeman, filling in for Kathryn Ryan, who in all fairness would probably  have done a much better job. As the recently released Broadcasting Standards Authority (BSA) determination on my complaint about the programme makes clear, while nominally presenting the programme – and supposedly acting as devil’s advocate :

“…the presenter appeared to largely adopt the position of the interviewees without any real challenge….[her questions] were insufficient to provide balance on the topic under discussion, especially considering the broadcast involved two people strongly opposed to  the law” (at para. [25])

The programme began with a major  inaccuracy: that persons on their third strike “had no possibility of parole”, when in  fact  the “no parole at strike three” provision  will  not apply if the Judge finds it to be “manifestly unjust” in the circumstances of a particular case. The insertion of this proviso occurred after Judith Collins took over negotiation of the contents of the 3S  law from then Justice Minister Simon Power, and the Nats stopped playing games.

It is an important qualification – and gives the lie to the oft repeated claim that the law removes judicial discretion.  ACT readily agreed to this provisio being included. Radio New Zealand simply ignored its existence in Freeman’s introduction. Things got much worse from that point on.

Throughout the discussion, Elijah Whaanga, the second strike aggravated robber whose lawyer was a panelist, was referred to constantly  as “Elijah” and “a playground bully ”, presumably because his second strike aggravated robbery was of a skateboard and a hat. What wasn’t  mentioned was that the robbery occurred  in the street not a playground; that the victim was “only” robbed of a skateboard and a hat because he had no money; and that in Whaanga’s first strike – also an aggravated robbery in the street – the victim had all his money taken, and his head  kicked in.

As the BSA puts it in its decision:

“The offender on his second strike…was referred to throughout the discussion and  used as an example of the type of people  targeted by the law , without balancing comment to challenge this…Given the participants strongly held views that the law operated in a way that was unjust and unfair, and out of proportion to the crime committed, there was a clear requirement of the broadcaster to ensure the discussion was balanced” [paras. 19 -20]

The BSA concluded that the programme was one to which the “balance” standard applied,  that  RNZ “…did not include sufficient balance on the issue”, and therefore upheld the  first limb of  my complaint.


My second complaint was about the many inaccuracies the programme contained, none of them corrected or challenged by the presenter.  I identified a lengthy list of statements – mostly by Professor Pratt  – (see para. [37] of the determination)  which were inaccurate or misleading.

The BSA found that the programme was misleading in two crucial respects: firstly by its  many completely inaccurate comparisions with California’s “three strikes” law; the second  was the way “playground bully” Elijah Whaanga was “portrayed and used as an example of the type of criminals (sic.)  targeted by the law “ (See para. [43] of the BSA decision).

The first  point  is of course indeed  crucial. From the outset, opponents of 3S have attempted to use the indisputable   excesses of the law in California as it was originally enacted   as a reason not to enact  a law with the same name here.

In 2007, Garth McVicar and I went to California specifically to find out whether the “life for stealing a chocolate bar” stories were true (we never verified  that one, although there were others which were clearly unacceptable and unjust) and if so, to work out how to draft our  3S law so  injustices like them  couldn’t happen here.

California recently modified its law to make it much more like ours: no more “technical felonies”, and much more prosecutorial and  judicial discretion. Rather than make those points, Freeman talked about California “backing away” from 3S, and rhetorically asked “What does that tell you? ” Professor Pratt obliging leapt on his soapbox and gave his version of what the changes in California meant, untroubled by any dissenting voice.

The BSA was perhaps  harshest on this point, saying:

“…comparing the legislation in this manner, without any countering views, and in particular the presenter’s unequivocal statement that California had started to ‘back away’  from the legislation, would have misled listeners as to the nature of New Zealand’s ‘three strikes’ law  and any comparison with California.” (see para. [42] )

The BSA concluded its decision on the balance and accuracy complaints thus:

“The programme omitted any alternative voice to counteract the one sided statements  made by the panelists, and the presenter failed to adequately challenge those statements. Compounding this, the panelists also made statements which created a misleading impression in the absence of any balancing comment.” (See para. [49] )

As I did on the morning  I heard this travesty of journalism unfolding, I have offered to  appear as “balance” for any future programme on 3S. Somehow I don’t think I’ll be getting a call, but at least after receiving  a spanking from the BSA like this one, they might be a bit more careful next time.

Well done to David for getting a successful ruling, and hopefully Radio NZ will be more balanced in future on this topic.

Guest Post: David Garrett on full and final settlement

June 11th, 2013 at 10:00 am by David Farrar

A guest post by former ACT MP David Garrett:

Why Maori grievance settlements are not “full and final” –  and how  they could be.

From  the time of  its election in 2008 this government has done one thing consistently – pay out large sums of taxpayers’ money to supposedly achieve “full and final” settlements of a plethora of Maori grievances. Almost every week the galleries of Parliament are filled by one group of Maori or another who proceed to sing beautifully as the Bill settling “their” grievance, supposedly once and for all,   is passed into law. But that won’t in fact  be the end of it, and all the players know it.

First some history.  In the 1940’s the Labour government of the day made real and genuine efforts to settle Maori grievances which had been festering for years – and they had been, despite the claims of some on the right that “grievance” is very recent  phenomenon.  To take just one example, it is quite true that since their land was confiscated after the Land Wars of the 1860’s, Tainui had been bitterly protesting what they claimed was unjust and unlawful  confiscations of land. And they were right.

Back in 1926, the government of the day set up the Sim Commission – chaired by a [then]  Supreme Court Judge –   to investigate   claims of unjust land confiscations in the Waikato, Bay of Plenty, and Taranaki. Its report was released in 1927, and recommended  compensation of about $500,000 per annum in today’s money be made. For twenty years, nothing happened, and the grievances festered through another generation.

Then came the Waikato-Maniapoto Maori Claims Settlement Act of 1946, which gave force to an agreement reached personally between Prime Minister Peter Fraser and Princess Te Puea. In his biography “Te Puea”, Michael King describes the settlement negotiations, and in particular the final session, at which Fraser agreed to pay 5000 pounds (a million dollars today) per year for ever, and an additional 1000 pounds per year for 45 years, commencing in 1947. Similar Acts were passed around the same time “settling” the claims by Taranaki iwi and Ngai Tahu. All of those settling Acts were overturned less than 50 years later.

It is now claimed that: 1) the settlements were negotiated with the wrong people; and/or 2) they were for trifling sums; and/or  3) the sums were eroded by inflation. As to the first, it didn’t get any higher than the PM on one side, and the most respected Maori leader of her day on the other. As to the “trifling sums” claim, that is clearly nonsense.  It is certainly true that 6000 pounds in 1946 was not worth anything like the same amount thirty or forty  years later because of inflation. But anyone who retired on a fixed income before inflation became a phenomenon  had that problem. It simply wasn’t considered at the time.

Fast forward into the 90’s, and the Tainui  and other iwi convinced the government of the day  that the “settlements” of 50 years earlier weren’t settlements at all;  the whole issue was revisited, and millions of taxpayer dollars were paid. Again, the new settlements were given force in legislation – the laws passed in the 1940’s simply being repealed because they were no longer convenient.

But we did not learn the lessons of the 1940’s, and we still haven’t. Those prior settlements could simply be written out of existence because the laws which gave force to them were not entrenched; they could be repealed by any government able to muster a simple majority, as any government can.

Now, twenty years on from the settlements of the 90’s, were are still “settling” grievances, and still passing laws which can be repealed when the next generation decides to have a crack.  The Attorney General claimed on National Radio recently that the current settlements will not  be revisted,  yet again, in 40 years time. In making that claim, he is at best being disingenuous.

 Firstly neither he nor anyone else knows what will happen in 40 years – the more honest Maori leaders are now admitting that no generation can bind the next. Secondly, Finlayson is well aware that the legislation he  sponsors now  is no more legally durable than that passed 50 years ago – these most recent laws can also be repealed by any future  government with a simply majority.

 There is at least a possible solution – entrenching  the laws being passed with gay abandon so  they cannot be repealed without a “supermajority” of – say – 75% of MP’s in favour. Or if we really want to be serious,  unless there is a popular referendum with a similar majority.   While legal academic opinion is divided on just how effective such entrenchment attempts  would be, it would at least be a signal that this government was serious; that the settlements of the last 20 years were intended to be full and final, that this was accepted by the grievants, and that any attempt to reopen the can of worms would simply be a venal attempt to get more money.

 Why hasn’t this government entrenched its “settling” Bills? There are various answers, none of them complimentary.  Finlayson and his ilk simply cannot argue, when we go down this path again,   that everything was done at the time to finally close the books. Until that is done – as well as our constitutional arrangements allows – none  of the settlements now being made can be considered “full and final”.  And the Attorney General knows it.

I agree with David Garrett that you can not guarantee what people may try to do in 50 years.  You can’t pass a law banning people from advocating something. However there are a number of reasons why I think the current settlements will be durable, which I’ll do a separate post on at some stage.

Guest Post: David Garrett on crime levels

May 21st, 2013 at 12:00 pm by David Farrar

A guest post by David Garrett:

Still plenty of crime about

This weeks HoS featured a  story on falling crime. The gist of it was that crime was at its lowest since 1982;  we are all victims of manufactured anxiety about crime , and in fact we have never had it so good. The story featured a neat little graph which showed that  “recorded offences” were about the same – actually a little lower – than  they were in 1982. Sadly neither the story nor the graph tells the whole story.

For example, if the graph covered the period back to 1972, it would show a dramatic explosion in crime between then and 1982, when the reassuring line on the graph in the story  begins. If the graph went still further back, it would show violent crime – including  homicide – pretty much as a flat line from the beginning of last century until about 1972, when violent crime began to grow exponentially.

The story uses the “crimes per 10,000 of population” measure, which allows us to compare New York with New Plymouth – the rates are comparable and meaningful   whatever the populations compared. For most of the 20th century, our homicide rate was about 0.5 per 100,000 per year. It is now about three times that – substantially less than 20 years ago it is true, but still three times higher than it was fifty or sixty years ago.

The graph in Sunday’s story  showed total offences, and does indeed show an encouraging fall since 2010 – but more about that in a moment. If the graph had shown violent  crimes only, the picture would not have been anything like as rosy; violent crime has declined much less since its peak in the early 90’s than “recorded crime” generally,  a notoriously unreliable stat, since to be “recorded”, someone has to bother reporting it.

The most interesting thing about the story for me was the sharp drop in crime since 2009 – about the time the National led government moved, albeit rather timidly, away from the “criminals are victims too” policies we had been following for the past 40 years or more. 2009-10 saw  small changes in bail laws, more recalls for breaches of parole, and of course “three strikes”, the effects of which are only now really beginning to be felt.

The liberal academics – something of a tautology since with very few exceptions we have no other kind – will of course ascribe the sharp drop in crime from 2009 to something other  than the factors I have cited. Anything will do for them, so long as it’s not  more punative measures. The current theory is  that removing lead in petrol twenty years ago has caused crime to drop now.

To those who say that to aim for the kind of safe society we once had is a reactionary pipedream, I say this: read up on the precipitate drop in crime in New York since a much more dramatic policy change  in the early 90’s than we have seen began. Back then, there were about 4000 homicides in New York City every year, and the city was widely regarded as “ungovernable”.

Mayor Guiliani refused to accept that, and the New York Police Department were directed to “take back the city”, block by block.  Now, homicides in NYC number in the hundreds annually – about the same level as in the 1960’s – rather than the thousands.  The population hasn’t changed.

We can do the same. Smarter and more comprehensive policing – “broken windows” New Zealand style if you like – has caused crime to plummet in South Auckland,  long our most crime ridden district. I look forward to the day when some fresh faced reporter can show a graph extending back to 1972, or even 1952, and say we now have the same rate of violent crime as we did then. It can be done. We just need the will to continue down the path we tentatively embarked on three years ago.

The point David makes about violent crime being a better indicator than overall crime is one I have often made also.

Guest Post: David Garrett on Sterilisation

October 15th, 2012 at 9:00 am by David Farrar

A guest post by David Garrett:

Sterilize child abusers – compulsorily if necessary

It is a cliché that while one needs a licence to own a dog, no such permission from the state is required to have children. The same illogical disparity applies when owners or parents abuse their charges: an abuser  can be banned from owing an animal for a period of years or for ever, but the state has no power to prevent abusive “parents” continuing to bring innocent children into the world.

The weekend papers contain two examples of this ridiculous dichotomy. A Sunday paper reports that one of the abusers of three year old Nia Glassie – the little girl who died after being put in clothes drier and   then choked by her grandfather  until her face went purple – is pregnant.  Oriwa Kemp, aged 22, apparently lives “ a transient lifestyle”, and will probably have her latest baby removed by CYF at birth.

Meanwhile down in the western Bay of Plenty, a farmer who broke some of his cows’ tails and hit them over the legs with a steel pipe causing fractures and “weeping lesions” has been sentenced to ten months home detention. Because his victims were animal and not human, he could have been disqualified from ever again owning or exercising authority over  animals. Oriwa Kemp can go on producing children until menopause, and many of the deluded clowns on the left will vehemently defend her “human right” to do so.

One of the earlier controversies during my brief political career arose from my  supporting a guest poster on this blog who suggested that incentives be offered to abusive parents to have themselves sterilized. That night, my “outrageous” comments led the TV news, with  my face superimposed over massed ranks of marching Nazi storm troopers, and shots of Auschwitz.

While I found that astounding – I was very naïve about journos in those days – I was even more surprised at the positive reaction my comments gave rise to, or more correctly, where they came from. I got numerous e-mails agreeing with me from people I had never met, but who made it clear they were not ACT supporters. One former friend – a leftie family lawyer with whom I had fallen out – wrote that all was forgiven because I had said publicly   “what someone needs to say”.

Now we have a government “white paper” – prompted by the Glassie outrage – which recommends “strategies” to combat child abuse. I have not read it, but judging by the media reports it contains nothing particularly radical or new. We don’t need white papers, or “further study” or “consultations with stakeholders” on this issue.  Someone in government needs to stand up and actually LEAD – and if it’s not someone in this lot it surely won’t be someone in the next, which looks likely to be a ghastly amalgam of Labour, the Greens,  Hone the Racist and Winston First.

We once led the world in  the introduction of what were then utterly radical social policies: pensions for the aged; votes for women; a comprehensive welfare state; free medical care for all. Most of those ideas were considered utterly outrageous at the time. Don’t take my word for it – have a look at reports of  the reaction of the medical profession to “socialized medicine” following the election of the first Labour government in 1935.

We could lead the world in social policy again. We could stop wringing our hands about child abuse, take a big breath, and say “Actually NO, everyone doesn’t  have the inalienable right to give birth to children. If you prove you are unfit to do so, we as a society will ensure you don’t”. Cue   howls of outrage from the left, including the sophomoric navel agonizing over “who decides”.

We allow ordinary people to decide the most weighty decisions – whether someone is guilty or not guilty of murder or other serious violent crimes – every day.  Those ordinary people are called “jurors”.  One  of those who sat in judgment on Oriwa Kemp wants the baby to be removed at birth and Kemp to undergo sterilization. The first will happen, the second won’t.

I cannot improve on the words of that (female)  juror as reported in the HoS:

“I think it’s disgusting, revolting, abhorrent…there are so many people in this world who would love to have children and can’t…and for [Kemp] to be able to go and get pregnant and pop them out whenever she feels like it is just mind blowing”

Right on, as we once said.  There are thousands dozens or hundreds of Oriwa Kemps.  Why do we allow this to continue?

DPF: The Nia Glassie case is arguably our worst. Nia was: “kicked, beaten, slapped, jumped on, held over a burning fire, had wrestling moves copied from a computer game practiced on her, spit on, placed into a clothes dryer spinning at top heat for up to 30 minutes, folded into a sofa and sat on, shoved into piles of rubbish, dragged through a sandpit half-naked, flung against a wall, dropped from a height onto the floor, and whirled rapidly on an outdoor rotary clothes line until thrown off”

Her family also waited 36 hours after she went into a coma before they sought medical help. Her mother went out clubbing (so enough money for that) while Nia lay dying in hospital.

My instinct is to execute, not sterilise, all those involved. But more rationally I can’t bring myself to support compulsory sterilisation (or execution)  – even for those who deserve it. I just can’t defend the precedent it creates in terms of power of the state.

I hope that the new law changes which will allow for an order that all future children be removed at birth, will discourage people like Oriwa Kemp from getting pregnant again. But considering her first born is in CYFS care, I suspect she knows this one will end up there also – but that wasn’t enough to discourage her from getting pregnant. I just hope her son or daughter when born, never find out who their birth mother was.

Guest Post: Community care for the dangerously mentally ill is not working

September 10th, 2012 at 10:00 am by David Farrar

A guest post by David Garrett:

I recently learned that the son of a former colleague had been murdered. It was shocking news, but when I found that Dean Clark was yet another victim of a mentally ill person released to “community care”, and supposedly being monitored in the community rather than  in a secure psychiatric facility, it made me both despairing and furious.

The circumstances of Dean’s death were almost identical to those of Colin Moyle, who was  bludgeoned to death with a spade, and his body set  on fire  in 2007. The killer was a mental patient also under “community care” at the time. Mr Moyle took him in and gave him a home because he had been sleeping rough.

At the time of Moyle’s death there were the usual enquiries, and assurances that “systems” would change so that such a tragedy would not happen again. Here we are five years down the track, and clearly absolutely nothing has changed.

The man charged with Dean Clark’s murder is a 38 year old mental health patient who Dean had known for years. Dean took him in because the man had been sleeping rough and on friends’ couches,and had needed somewhere to live. Dean had a spare room and needed a flatmate. Five days later Dean was dead, stabbed to death in his bed.

A recently retired mental health worker told the media  there are “gaping holes” in the mental health system that needed  to be fixed. Dean’s mother received a visit from some person from the mental health system, which she found “utterly useless”. The mother asked  her visitor the questions you would expect: when was the man last seen by the authorities? What steps were being taken to ensure he was adequately monitored?

As usual, for “legal reasons”, a mother’s anguished questions could not be answered. This is indeed a very difficult legal area. By definition, the criminally insane – as they were once called –  confined in an institution like the Mason Clinic,  are patients and not prisoners. The doctors treating them are in a doctor-patient relationship, and are not their jailers. Such patients have rights of privacy even greater than those of ordinary prisoners.

But the community has rights too. Dean Clark and Colin Moyle had the right to live their lives without unmonitored dangerous psychiatric patients roaming around their neighbourhoods listening to voices in their heads, voices  often urging them to kill someone. Each time such a tragedy happens there is the usual hand wringing, offers of sincere condolences – and ducking for cover. But nothing changes.

The “three strikes” law which I helped to put in place,  and other changes to sentencing and parole laws, came about in large part because enough people got sick enough of violent thugs being continually released from prison to make sufficient  noise for politicians to take notice. Poll driven politicians on both sides of the left-wing divide listened, and the laws gradually changed. Five years on from Colin Moyle’s horrific death  clearly nothing has changed regarding the criminally insane, and Dean Clark paid the penalty for that political torpor.

There is an added tragedy in every such case. Two months on, in a secure forensic environment where he is compulsorily medicated, Dean’s killer is probably  as “sane” as he will ever be, and  now has to live with the horror of what he has done. Living with that will be a burden he must bear for the rest of his life, regardless of what the courts eventually do with him. That alone may make him go off medication in the future –  so he can return to a more comfortable world of the voices and delusions –  unless he is properly monitored when he is again released.

It is time the same level of public pressure that eventually resulted in “three strikes” was brought to bear on the mental health system. It is simply not acceptable for learned pointy heads to nod wisely and say “this is all a very difficult balancing exercise”, or utter similar platitudes every time such a tragedy happens.  The mental health system has a long history of covering its backside, stretching back at least to whistle blower Neil Pugmire, who warned the public in the 1990’s  about the imminent release of a dangerous sex offender, and paid a heavy price for doing so. Eventually though, as a result of public pressure, the Protected Disclosures Act was passed to protect the Neil Pugmires of the future.

Whether  changes  to the way we deal with dangerous psychiatric patients happen  now is, in the first instance, up to the public. The National government changed its plans to mine Schedule 4 of the Conservation Estate because enough people objected to the plan, and the polls reflected that level of objection. People need to wake up to the danger of inadequately monitored, dangerously ill mental patients in their midst under non existent “community care”,  and make just as much noise. Otherwise you or your son’s next flatmate may be a mental patient in the incompetent  hands of those supposed to be monitoring them. And listening to the voices.

Thanks to David for the guest post.

David Garrett on Three Strikes law

July 30th, 2012 at 3:00 pm by David Farrar

A guest post by David Garrett:

Court of Appeal rejects appeal and confirms “second strike” sentence.

When the “three strikes” law was making its way through parliament a great deal of misinformation was spread about  by those opposing it. Among the more outrageous claims was that the law would result in the prison population tripling within two years, and  that there would be a sharp rise in attacks on police by “strike” offenders desperate to avoid arrest. Two years on, seven offenders have received their second “strike”.  Far from tripling,  the prison population is falling, and there is no evidence of an increase in attacks on police.

Another claim – that the Judges would oppose the law, and find ways to avoid imposing it – has now also proven to be nonsense. The Court of Appeal has just released its decision on an appeal by Brock Robert Norton, who appealed against his conviction and sentence for a “second “strike”. The appeal was rejected, and Norton’s three year sentence for aggravated robbery was confirmed.

Norton – just like the other six second strikers – is just the kind of thug the “three strikes” law was intended to target. While still on parole from his “first strike” sentence, Norton and an accomplice invaded the victim’s home and cornered him in his bedroom, robbing him of a cellphone. The victim was injured in the fracas.  Norton first “strike” offence was very similar to his second – robbery and demanding with menaces.

These two are clearly not his only convictions. In rejecting his appeal, a three Judge bench of the Court of Appeal noted that  with his record, and the seriousness of the offending, a further prison term was inevitable despite his lawyer’s plea for a sentence of supervision. So much for “three strikes” targeting poor lads who had stolen chocolate bars from dairies – another piece of misinformation promulgated  at the time by the likes of Kim Workman.

For lawyers – and their violent criminal clients – this decision is very significant. It puts the lie to the claim that “the Judges all hate it”; we now know that at least one District Court Judge is happy to impose a three year sentence on second strike, knowing the offender will serve the whole sentence, and at least three Court of Appeal Judges are quite comfortable with such a sentence.

The real test will of course come at third strike stage – perhaps Mr Norton will be the first to test whether the Court of Appeal is happy with a 14 year sentence for aggravated robbery. That is what awaits Norton if he fails to take the rehabilitative opportunities offered to him in jail – which the Judges strongly recommended he do – and instead re-offends violently on release in three years time.

It will be interesting to hear the bleating of Kim Workman and his ilk when the inevitable happens, and someone goes away for a record holiday courtesy of Her Majesty and “three strikes”. If the first third striker isn’t Mr Norton, it will be a thug just like him.

I regard it as a good thing that Norton will have to serve his three year sentence without parole – especially as he did his second strike on parole. Hopefully the fact that if he offends again, he will get 14 years without parole will act as an disincentive. If it doesn’t, then he’ll not be doing a fourth strike for at least 14 years!

Always happy to run guest posts, including from Mr Workman.

Guest Post: Incarceration beyond sentence for habitual sex offenders – deeply problematic but necessary

April 12th, 2012 at 9:00 am by David Farrar

A guest post by David Garrett:

The case of Stuart Murray Wilson – the so called “beast of Bleheim” – has prompted the National led government to finally grasp  one of the most difficult of legal nettles. Our entire judicial system is based on “do the crime, do the time”, and no imprisonment for what one  might do in the future. But what do we do with individuals like Wilson or Lloyd MacIntosh – habitual sex offenders who everyone, including experts retained on their behalf,  agrees will – not might – inevitably reoffend on release?

The problem is not new, and unless or until medical science advances significantly, habitual sex offenders who constitute a serious risk – regardless of advanced age – will always be with us.

Stanley McKissock Reid committed sex offences including  rape in the 1920’s, and served a lengthy term of imprisonment. Despite his file being marked “Never to be released”, he was, and Reid then  raped and killed Lila Hammond in 1944. But for an accident of history – a temporary moratorium on capital punishment – Reid would have been hanged and forgotten.

During his time in jail, there were several attempts to “rehabilitate” Reid, including work placements at Burnham Army Camp near Christchurch. Whenever he was around women, Reid could not stop himself from sexually assaulting them, so he stayed in jail. By the 1980’s Reid was in his 80’s, and there was considerable agitation from well meaning do-gooders to let “poor old Stan” live the remainder of his life in the community.

Reid was released from jail in the mid 1980’s aged 83. He was sent to live with a community of nuns, where, about six weeks after his release, he tried to rape one of them. Fortunately the nun was able to overpower him. Showing considerably more insight than the do-gooders,  Reid told her that he  had “always been a bad bastard”.

The oldest prisoner in jail in New Zealand is an 85 year old paedophile held   in maximum security at Auckland prison. He is still considered to be a serious risk to children, and is unlikely to ever be released. The authorities can hold him indefinitely because he is serving a life sentence.

Lloyd McIntosh, a habitual paedophile who is described as “New Zealand’s most dangerous sex offender”,  is much more problematic. McIntosh was sentenced to ten years in 1993 for sexually assaulting a nine month old baby. He served the full sentence, and shortly after his release in 2003, sexually assaulted and raped a two year old boy.  Although he had been offending since he was a child, the authorities then finally woke up to the reality that in McIntosh, they had an offender who was almost without parallel.

In 2005, McIntosh became the first person to be subject to a ten year supervision order. Initially, by agreement, he lived in a house within the grounds of Rolleston prison, but the following year he was allowed to leave the prison grounds  subject to electronic monitoring and close supervision. Given the consensus among “the experts”  that he will never  be less than a serious risk, it is somewhat remarkable that he has not reoffended since 2006 – or at least he has not been caught. From 2015, McIntosh will be free of all constraints, and given his history, it can then only be a matter of time before he reoffends.

So what can and should we do with people like Wilson and McIntosh, or the ten or a dozen similar offenders identified by the authorities? As in most matters penal, the United States grasped this particularly difficult nettle ten or twenty years ago, with laws requiring notification of communities into which habitual sex offenders are released, and for the worst of the worst, pre-emptive incarceration.

Coalinga state prison is a unique institution designed for those designated “Sexually Violent Predators –  offenders who the state has determined are simply too dangerous to  be released after completing their prison sentences. They constitute perhaps 2% of incarcerated sex offenders. Given the very small number of offenders such as McIntosh and Wilson identified here in New Zealand, the percentage is likely to be similar in this country.

Inmates at Coalinga have considerably more freedom that at a normal prison. They are allowed to move around the prison concourse freely. There is a “mall” with shops, such as a barbershop, a grill, and a canteen. Those prisoners who wish to can participate in various psychological therapy programmes. Significantly, the majority of inmates refuse to undertake any treatment. They do not think there is anything wrong with them. Those inmates have effectively selected themselves as members of the category of prisoners who will never be released.

To be fair, neither will most of the rest, treatment or no treatment.  The Americans at least have accepted that there is a small but highly dangerous category of sex offender who will always be too much of a danger to society, no matter what “treatment” they undergo. It seems that the National led government – probably at the instigation of Justice Minister Collins – has at last woken up to the same realization.

There are of course numerous good philosophical and moral reasons not  to lock people up for what they might or –  even  definitely will  – do in the future. No doubt we will hear many of those arguments in comments on this post.  But for me, the issue is relatively straightforward. Once an offender  has been conclusively identified as a person who will never be safe around the vulnerable – particularly children –  their “rights” very much take second place to the rights of children to play,  or even  to sleep,  without a Lloyd McIntosh waiting for his chance to grab them and  commit unspeakable crimes.

Some very interesting history there from NZ’s past, and also on what happens in the US.

Andrew Geddis at Pundit has posted on the issue also, detailing some of the issues involved.

Guest Post on Three Strikes law

January 22nd, 2011 at 2:44 pm by David Farrar

A guest post by former MP David Garrett on the Three Strikes law:

This week, figures on convictions since the “three strikes” legislation came into force were released. 132 offenders were convicted of 209 “strike” offences. 151 of the convictions were for “pure violence” offences –including aggravated robbery (59), robbery(29), wounding with intent (33) and injuring with intent (20). There were also 58 convictions for indecent assault.

As some commentators at the time have noted – with some justification – indecent assault can cover a fairly broad continuum from the “drunken grope” to near rape. In my view the relative seriousness of various forms of indecent assault is a red herring – or at least a separate debate. None of the other “strike” convictions thus far can be described as “minor offences”, although others will no doubt argue otherwise.

These early results are entirely to be expected. At the time the Bill was being debated, there was all manner of ill informed – and downright dishonest – claims that “three strikes” would see people locked up for minor offences including theft. It seemed not to matter how often it was explained that the Bill was carefully drafted to target only repeat violent offenders – the misinformation campaign went on.

All of the convictions since June 2010 were first strikes, meaning the offenders who were actually sent to prison are still eligible for parole as before. The only thing that changed was those offenders now have a first warning on their file – which will have real consequences when they appear again for a violent offence – and most of them will.

A registrar of my acquaintance runs a District Court in a provinical area. She has paid particular attention to the “strike” offenders appearing for sentence in that court. She tells me that almost without exception, they are familiar faces, having appeared before – some on many occasions – often for violent offending.

She also tells me that most of those sentenced appear to pay little attention to the warning, although if their lawyers are doing their jobs, the offenders will have been told that as a result of it, a further conviction for a strike offence will have a significantly different outcome. Next time, any custodial sentence will have to be served without parole, and even in our ridiculously liberal justice system, a second conviction for a strike offence will almost certainly result in a prison sentence.

The debate about whether three strikes “works” will continue regardless of the results. I have no doubt that even if in three years time violent crime has dropped significantly, the liberal left will refuse to believe that a more punitive approach has anything to do with it. Sadly the left are like that.

The late Dr Dennis Dutton told me a few years ago of his great amusement at the disquiet in American liberal academia when homicides in New York City plummeted in the early 1990’s. Those in the ivory towers embarked upon a feverish search for “the real reason” homicide had declined from about 2500 in 1990 to about 450 per year at the end of the decade. They simply could not accept that something as “simplisitic” as more police on the street with a different attitude, and sentence enhancement measures similar to a “three strikes” approach could have been the reason.

New Yorker’s didn’t care what the reason was, they were just happy to be able to take their kids to Times Square on a Sunday afternoon without being hassled by drug dealers or robbed. Most New Zealanders will be similarly happy that 132 violent offenders now have their first strike, and that within a few years a good proportion of them will be locked up for a long time.

Like David, I’m looking forward to the legislation leading to some repeat violent offenders getting locked up for a long time, so they can’t continue to offend.

What a difference

September 23rd, 2010 at 7:13 pm by David Farrar

Garrett to resign tomorrow

September 22nd, 2010 at 12:00 pm by David Farrar

The Herald reports:

Discredited MP David Garrett will reportedly resign his seat in Parliament tomorrow, after last week quitting the Act Party over revelations he acquired a passport in 1984 using a dead child’s identity.

Mr Garrett – a list MP – in recent days has indicated that he won’t stay on as an independent MP but is yet to formally announce his decision.

However Radio New Zealand, which Mr Garrett used to announce his resignation from ACT, is reporting that he will now step down altogether.

I’ve been saying all along that I was sure David would resign from Parliament, once he quit ACT.

Garrett set to leave Parliament

September 19th, 2010 at 8:18 am by David Farrar

The HoS reports:

Disgraced MP David Garrett is ready to quit Parliament for the good of the Act Party.

Garrett said last night it was “very much more likely” he would stand down from Parliament before the next election. “I am in a very dark place right now,” he said.

To be fair to Garrett, he has done the right thing in quitting ACT – and so quickly. Unlike others who went to court to fight for their right to remain, he has put the interests of his party ahead of himself. I also give kudos for his resignation statement which said:

I can do nothing to change the past. For any number of reasons, I wish I had not done such a stupid and dreadfully hurtful thing in 1984. When my wrongdoing was revealed, the worst aspect of it all for me was reading the letters written by the mother and sister of the dead boy whose identity I used to obtain the passport.

As a result of my own actions, my political career is almost certainly over, but that is not my greatest concern. The worst aspect of all of this for me is that those who have seen fit to do so have opened the wounds of the boy’s mother and sister all over again. As the person who inflicted those wounds in the first place – however unwittingly – I must take ultimate responsibility for that.

I wrote letters of apology at the time – letters I realised were woefully inadequate, but there was nothing else I could do. I wish to reiterate my profound regret for the distress and hurt my thoughtless actions inflicted on two women, one of whom is elderly. I am simply unable to imagine how it must have felt at the time they first learned of what I had done, and I am equally unable to imagine what they must feel now.

I still well recall my horror when I read the letters from the boy’s relatives, one of them in the handwriting of a clearly elderly lady. I do not think I have ever felt worse.

There is certainly no excuse for what I did, and I make none.

His statement reeks of sincerity.

I have little doubt Garrett will resign from Parliament, and not try to stay on as an Independent MP. And this was before the extra complication the HoS reports on:

Their willingness to put the party’s interests ahead of their own came as a Howick woman, who met Garrett on an internet dating site, revealed he tried to woo her with a McDonald’s dinner and a private viewing of the film Casablanca.

A McDonald’s dinner? No wonder it didn’t work out!

Hypocritical ******

September 18th, 2010 at 1:53 pm by David Farrar

The Herald reports:

The Act Party has been “thoroughly” discredited and its ministerial positions should be removed, Labour leader Phil Goff says.

Now I have been critical, both on this blog and on radio, of Rodney’s decision not to force Garrett to make his offending known before the election. It was an error of judgement, and ACT have been damaged by it.

But I’m sorry, it is just too much to have Labour get sanctimonious on this, and declare that because of this, Rodney is unfit to be a Minister.

Need I remind people of Taito Philip Field – the MP found to have committed numerous corrupt practices while a Labour Minister and MP.

Field’s offending was not 26 years before he became an MP. It was while he was an MP. Field’s offending was not incidental to him being an MP – it was corruption in the course of his MP duties. And it was corruption aided by his Ministerial colleague who rubber stamped almost every immigration application made by Field.

And what happened when allegations were made. The Labour leadership defended Field. They said he was only guilty of working too hard.

And even after the full scale of his offending was made clear by the Ingram Report, the Labour leadership still defended him. If Rodney Hide is unfit to be a Minister, then Helen Clark and Michael Cullen were equally unfit to be Ministers.

Even worse, Labour never booted Field out for his criminal offending. He only got booted out when he talked of not standing for Labour.

And the final indignity came after he was found guilty of 11 charges of bribery and corruption (and 11 of perverting or obstructing the course of justice). Labour not only refused to apologise for the huge shame Field was, but they refused to even accept he was guilty. I’m not making this up – go check the records. The only comment they would make is they “acknowledge” the verdict.

So yes Rodney made a mistake, and yes ACT is damaged. But for fucks sake the last thing we need is a lecture in ethics from the party that gave protection and defence to a corrupt MP. If Labour ever get around to actually apologising for their defence of Field, then maybe they get to be taken seriously on ethical issues.

Way forward bleak for ACT

September 17th, 2010 at 12:18 pm by David Farrar

UPDATE 1218: David Garrett has resigned as a member of ACT. He is taking two weeks leave to decide whether or not to continue as an Independent MP.

For my 2c David can not continue as an Independent MP. He is a List MP and got there on the ACT list. He may need a few days to come to this conclusion, but it is the only viable one.

Earlier: I’ve spent a couple of days thinking about this, and I have to conclude the future is bleak for ACT. Not terminal necessarily, but their brand may be too damaged to repair.

It was a critically bad decision to keep Garrett’s offending secret. While what he did was very bad (and one can only have immense sympathy for the family of the deceased infant, who are having to cope with all of this), it could have been handled, if prior to the election it was revealed. NZers do not expect MPs who have never made mistakes.

But keeping it secret, while one rails against crime and suppression orders means that ACT is seen as hypocritical. And the nature of the offence risks them being seen as a bad taste joke.

So how do they move forward?

An absolute minimum is that David Garrett must be removed as Law & Order Spokesperson. It is impossible for him to perform that role with credibility anymore.

But I don’t think that will even be enough. So long as David remains in the ACT Caucus, this will remain an issue. Some may say it is unfair (remember Trevor Mallard remained an MP despite being convicted of assault – while an MO, of another MP, and in the lobby of the debating chamber), but this is about political survival.

Also recall that there will not be inquiries into whether Garrett should have disclosed his Tongan conviction to the courts. I am sure he will face complains to the Law Society. The Tongan doctor is alleging a different set of facts to him, and more witnesses may come out about that. ACT can’t afford to have this dominate reporting on them for weeks and months to come.

If Garrett resigns, then Hilary Calvert would become an MP. She is well regarded within ACT (not a star, but a safe steady performer insiders say) and she is loyal to the leadership. It is a myth that she would be a vote for Heather.

So in my opinion ACT need to do that. However, that still leaves them some problems.

Rodney’s standing is damaged by this, and questions will be asked about why Garrett is deemed necessary to resign now, yet Rodney was happy to have him as an MP when it was secret. Rodney will need to acknowledge that this should have been made public before the election. Now to be fair to Rodney he was not the only person who knew of this.

Another issue, is where did this stuff on Garrett came from? If it did come from people with ACT, then it signifies that they have scorpions in their ranks who are happy to kill off the entire party so long as they can poison their target. As I understand it the number of scorpions is small – four or so. But they may need to be exterminated.

But even if you get past that, you have the very difficult challenge of re-establishing a brand for ACT that can attract support and allow Rodney to retain Epsom.

I would say ACT has mainly had three brands – low taxes, hard line law & order and perk busting.

Both of the latter two brands are destroyed or seriously damaged. That laaves the low tax brand. The problem there is that a minor party’s impact on tax policy is always going to be relatively small. And anything you do achieve the bigger party can get credit for,

What else can ACT build their brand on – they can go down the “Maori Party has gained too much path”. But Winston is already there, and he will always be able to push that barrow more effectively.

They can position themselves as the anti ETS party. But now 1 July has been and gone, and the world did not end, I am not sure if it will be much of an issue next election.

Maybe to some degree, one can’t draw up a path for survival at this point. But one can take a couple of steps in the right direction. See how you are doing, and then plan the next two steps. But any mis-steps are likely to be fatal.

Do you have a copy

September 16th, 2010 at 1:44 pm by David Farrar

If anyone has a copy of the original post made at Red Alert, which they edited – could you please send it to me.

UPDATE: Thanks to the many readers who sent a copy through.  What they deleted was:

By David Parker and Phil Twyford

We understand this is a serious matter but we think ACT and National have some questions to answer.

To Rt Hon John Key Prime Minister and Minister of SIS: When the Israelis stole identities of children for false passports, did the Government force the Israeli Ambassador to resign and leave the country, and if so, has the Government considered a similar response to Government MP David Garrett?

Supplementary: Has the Minister received any intelligence reports about ACT MPs or is that an oxymoron?

Supplementary: Has the Minister received any intelligence reports about Ilich Ramírez Sanchez (aka Carlos the Jackal) having escaped prison in France and being sighted in Tonga and New Zealand?

To Hon Rodney Hide the Minister of Local Government: Does he stand by his statement that he is bringing “transparency and accountability to local government”?

Supplementary 1:  How can he expect transparency in local government when he in central government has suppressed David Garrett’s criminal record for two years and his own for even longer?

Supplementary: Will he reinstate Heather Roy who has demonstrated a strong commitment to transparency by proactively releasing documents to the media?

To Hon Maurice Williamson the Minister of Customs: Is the Minister confident the new Smartgate system is capable of picking up false passports?

Supplementary: What sort of passport would facilitate the quickest progress through Smartgate: a diplomatic passport, the new Kiwi digital passport, or a David Garrett passport, and is this just more good news for the Government?

Supplementary: What percentage of ACT politicians have convictions for drunk and disorderly behaviour in airports and would this be picked up by Smartgate?

To Hon John Boscawen, Minister of Consumer Affairs: Does misleading and deceptive conduct breach the Fair Trading Act?

Supplementary: Does he think it was misleading and deceptive conduct for Mr Garrett, in his presence, to tell journalists last week that he had no other convictions?

Supplementary: Is it now ACT party policy that conviction politicians must have criminal convictions rather than principles?

Supplementary: Will the Government be prosecuting Garth McVicar and “Sensible Sentencing Trust” under the Fair Trading Act for crimes against tautology?

That’s our first stab. We invite readers to submit their own questions below.  Especially ACT MPs or staffers who may well have more information they wish to share.

Don’t know why they deleted them. I think they’re great!

Quote of the Day

September 16th, 2010 at 12:46 pm by David Farrar

From Mike E:

MikeE_NZ is pretty happy right now that David Garrett didn’t read The Silence of the Lambs.

Hat Tip: Not PC

My thoughts on Garrett

September 15th, 2010 at 4:38 pm by David Farrar
  1. Applying for a passport in the name of a dead child is a seriously bad thing to do – even for someone in their 20s. I myself had some well known legal problems in my 20s, but was never this stupid.
  2. It was 26 years ago. By itself it does not make himself ineligible to be an MP, or even a law & order spokesperson.
  3. The decision by the court in 2005 to discharge without conviction was in my opinion correct, but the granting of name suppression was wrong. There should have been some consequences for the offending.
  4. David Garrett was right to disclose this to the ACT Party when he sought nomination.
  5. It was a incredibly bad call to not disclose it publicly prior to him entering Parliament – even more so considering his high profile on law & order issues.
  6. Thinking it would not eventually come out, reflects bad political judgement on behalf of both Hide and Garrett.
  7. As far as I know, a defendant is able to breach his own name suppression, and reveal his or her own court experiences. Using name suppression as a reason not to have revealed this earlier is a cop out.
  8. This, along with the Tongan assault conviction, seriously undermines Garrett’s ability to continue as law and order spokesperson. I’d put Heather into that portfolio, and move Garrett into other areas where he has a strong background such as industrial relations.
  9. Again, if this had been disclosed in 2008, I doubt it would have received more than a passing “Wow what a stupid thing to do when you were young”, and it would not be hurting ACT today, when they least need this.

Garrett’s conviction

September 14th, 2010 at 9:17 am by David Farrar

The Herald reports:

Act’s law and order spokesman, MP David Garrett, was convicted of assault in 2002 in Tonga, he confirmed last night.

Mr Garrett, who led the party’s “three strikes” policy on tougher sentencing for serious violent offences, has not publicly disclosed his conviction.

But Act leader Rodney Hide said Mr Garrett had disclosed it to him before he joined the Act list at No 5 for the 2008 election.

It was the right thing, to disclose it to the party. The issue is whether it should have been disclosed publicly.

Mr Garrett issued a statement giving his version of events after TV3’s Campbell Live last night revealed the conviction.

Mr Garrett, who worked as a lawyer in Tonga, said he was attacked outside a bar in Nuku’alofa by Dr Mapa Puloka, head of psychiatry at the local hospital.

Campbell Live claimed the altercation was over Dr Puloka’s former wife.

Mr Garrett said his own jaw had been broken in two places after he was attacked from behind.

He had returned to Middlemore in Auckland for treatment and then laid a complaint with the Tonga police. After Dr Puloka was charged with assault, he in turn laid a complaint of assault against Mr Garrett.

Mr Garrett denied the assault and produced two witnesses, the bar’s bouncers, at the trial but was convicted and fined $10.

He had immediately lodged an appeal and has yet to be given a reason as to why it has been delayed.

Dr Puloka was fined $100.

The fact Puloka’s fine was ten times greater than Garrett’s suggests he was the aggressor.

Many MPs have minor convictions but Mr Garrett’s non-disclosure is more relevant because crime is the primary focus of his parliamentary career.

If it was any other MP, then there would be little interest in a $10 fine. conviction. But considering the strong stand David has taken on law & order, it would have been wiser to reveal the conviction (and his side of the story) early on.

But that is the only criticism I would make. I don’t think it undermines the stance David has taken on law & order issues, and his commitment to tougher sentences.

The sterilisation debate

March 4th, 2010 at 3:24 pm by David Farrar

Bloody Jadis. I turn my back for a few hours and she does a post on sterilisiation of child abusers after listening to Michael Laws on Radio Live. David Garrett comments, and suddenly it is in the newspapers, on Morning Report and all over the blogosphere.

I suppose time to add my own 2c to the debate:

  1. Absolutely against any compulsory sterilisation. Apart from the fact no surgeon will operate on a non consenting patient, the state should not have the power to remove someone’s fertility.
  2. Not supportive of the proposal to pay child abusers to get sterilised, as it will only target poor child abusers, and may be thin end of wedge.
  3. However am open to having a debate on whether one could have it as an early release incentive for people who have been convicted of child abuse and actually gone to prison.

One of the reasons we send people to prison is to protect the community. If someone is sentenced to three years jail for child abuse, then is the community better protected by having them come out at 2.5 years and unable to have more children, or at three years and likely to have more children, whom will grow up abused, and in turn probably becomes abusers themselves.

By not having a monetary incentive, it removes the potential problems of being more attractive to poor child abusers.

Also by limiting it to people in prison, and convicted of child abuse, it means you target the worse of the worse.

I’m sure there are strong arguments against such a policy also, and I am not saying I support it without question. But unless one just wants to wring your hands about the child abuse problem, it may be a more palatable option than monetary incentives which I would not support.