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.

17 years for killing Moko

June 28th, 2016 at 1:00 pm by David Farrar

The Herald reports:

The man and woman who pleaded guilty to killing Taupo 3-year-old Moko Sayviah Rangitoheriri have been sentenced to 17 years each with a minimum of nine years at the High Court in Rotorua.

Tania Shailer, 26, and David William Haerewa, 43, had pleaded guilty to manslaughter and ill treating a child. They had originally been charged with murder.

Judge Sarah Katz said this was the highest sentence imposed in New Zealand for manslaughter against a child.

Good. The Attorney-General has noted:

Attorney-General Christopher Finlayson today set out the reasons for the Crown’s decision to accept the manslaughter pleas of Tania Shailer and David Haerewa in substitution of murder charges for the killing of Moko Rangitoheriri.

Ms Shailer and Mr Haerewa were today both sentenced to 17 years in prison, with a minimum non-parole period of nine years. Until that sentencing took place, the Attorney-General and Solicitor-General were unable to comment on the specifics of the case, as the sentencing was a matter for the courts.

“The Crown’s decisions in this case, including the decision to accept the manslaughter pleas, were motivated by the need to secure convictions for this horrendous killing and to avoid the significant risk that either of the defendants could escape such a conviction because of evidential issues,” Mr Finlayson said.

“The guilty pleas and admitted facts enabled the Crown to argue for a sentence which reflected the nature of the crimes committed. Without the guilty pleas, the full details of the facts set out in the Statement of Facts may not have otherwise come to light.

“The decision to accept a plea of manslaughter in substitution of a murder charge is never taken lightly. A robust process is followed which ultimately requires the approval of the Solicitor-General.

“The overarching consideration is whether the interests of justice are met in accepting the plea and in particular, whether the charge can adequately reflect the criminal nature of the conduct as well as allow sufficient scope for sentencing.

 “Based on the evidence available for trial, there was a substantial risk that one or both of the defendants would not be convicted of the legal charge of murder or manslaughter.
I guess it may have been a case of a bird in the hand being worth two in the bush. A certainty of conviction for manslaughter vs a probability for murder.

Life and 27 years no parole for Tully

May 27th, 2016 at 3:00 pm by David Farrar

The Herald reports:

Work and Income double-killer Russell John Tully has been sentenced to life imprisonment with a minimum non-parole period of 27 years.

It is the second highest non-parole period ever handed down in New Zealand history.

Tully was found guilty in March of being the masked gunman who stormed the Ashburton Winz centre on September 1, 2014 and shot dead receptionist Peggy Noble, 67, from point blank range and three times shot case manager Susan Leigh Cleveland, 55, as she pleaded for her life.

The 50-year-old was also found guilty of attempting to murder case manager Kim Adams. He was found not guilty of attempting to murder case manager Lindy Curtis who was shot in the leg and badly injured hiding under a desk.

Good – an evil manipulative man with a huge sense of entitlement who should never get to terrorise people again. He will be 77 before he is even eligible for parole, and it seems unlikely even then he would be deemed safe to release. So hopefully the families of the victims can now start to rebuild their lives.

Do we need preventive detention for the worst burglars

May 24th, 2016 at 4:00 pm by David Farrar

Stuff reports:

One of New Zealand’s most prolific burglars has died in custody.

Prison, police and judges could not stop Stacey Spinks’ life of crime.

In the end it was a suspected heart attack that stopped the man whose brazen skills led to him racking up over 300 burglary convictions. …

His offending was continual.

He had over 300 convictions for burglary alone, with many others for breaching sentences, impersonating police officers, escaping, and shoplifting.

The man obviously could not be rehabilitated. Burglary is a lesser offence than violent offending. I don’t think you should have a three strikes and you’re locked up forever for burglary. But how about 100 strikes and you’re out? By out I mean an automatic 10 year (maximum sentence) prison sentence for every burglary conviction after you reach the threshold?

No sentence seemed to deter him.

Twelve times he was caught impersonating a police officer. He even handed over a police business card at commercial premises where he asked about security measures.

There comes a point where you accept someone can not be deterred. Then the focus is on community safety. If we know beyond a slither of a doubt that the moment he is out he will carry on, why let him out?

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.

Data for Judges

May 7th, 2016 at 4:00 pm by David Farrar

Stuff reports:

Tackling health and education issues facing vulnerable Kiwi kids is the best way to keep them out of the country’s prisons, Justice Minister Amy Adams says.

A new approach to New Zealand’s justice system could also lead to judges making sentencing decisions based on data analysis of the most effective approach.

Adams launched the “investment approach to justice” on Monday morning, saying it was “quite a revolution” in the way the sector worked.

The better information we can give Judges, the better the decisions they can make.

An early “investment brief” also showed strong evidence that cognitive behaviour therapy helped to reduce crime, as one out of every five to 15 people would not reoffend after receiving treatment.

There are some criminals who won’t respond to anything. They’re simply bad or mad. And they need to be locked up. But many can be rehabilitated.

An early piece of analysis showed that people fined for offences like assault, shoplifting and drink-driving, were less likely to reoffend and access benefits than similar people sentenced to community service.

While judges were entirely independent and had ultimate discretion over sentences for criminals, Adams said they had similar motivations to reduce reoffending which the data analysis could help.

It’s a very good initiative.

Blessie Gotingco killer loses appeal

April 12th, 2016 at 4:00 pm by David Farrar

Stuff reports:

The man who ran down then stabbed and raped Blessie Gotingco has failed in his appeal against his sentence.

Tony Robertson was convicted and sentenced last year for the 2014 murder and rape of Gotingco.

​He had only just finished an eight-year sentence for sexual offending against a five-year-old girl when he killed the 56-year-old mother-of-three in May 2014.

He was still on GPS surveillance as part of his prison release conditions at the time.

For the rape he was sentenced to preventive detention and for the murder he was sentenced to life, with a minimum non-parole period of 24 years.

Good – may he never be released.

He appealed on multiple grounds – the most disgusting being he couldn’t have raped her as she was dead when he did, so it wasn’t rape!

One of interest to me is:

Suppression issues about his prior offending: The details of his sexual offending against a child was withheld from the jury, but he argued they may have found out anyway.

The Police thought he would try this line at appeal, so they worked hard to prevent any chance it could succeed.

I blogged a couple of years ago that the person arrested for the murder was well known to the Police. This was not in breach of any laws at the time it was made, or later. However the Police rang me up (given me a minor panic as I was on holiday and got a message to call back Waitakere Police) and asked if I would consider removing it, as they said he may point to it (if convicted) and use as grounds for appeal. They said I had no legal obligation to do so, but of course I was happy to comply.

Looks like they knew their man well, as he did try.

A high conviction rate is good, not bad

April 7th, 2016 at 4:00 pm by David Farrar

The Herald reports:

The rate of convictions is the highest in at least 35 years, prompting concerns from lawyers and a politician about the justice system’s soundness.

Statistics New Zealand figures reveal more than 83 per cent of adults prosecuted in court last year were convicted. The rate has risen in 10 of the past 11 years, and in the past two years has been the highest since 1980, the earliest data available.

Former New Zealand Law Society president Jonathan Temm said despite appearing to indicate a healthy justice system, the conviction rate was actually too high, with people being convicted incorrectly.

“It’s heading the wrong way. Our level should be constantly around the 75 per cent mark, and anything over 80 per cent is a reflection that people are pleading guilty to things that in the past they would not have been convicted of,” Mr Temm said.

I disagree.

In a perfect world the conviction rate of guilty would be 100% and the false conviction rate of innocents would be 0%. I don’t think one in four people charged are innocent, and that 75% is the “correct” conviction rate.

The rise in conviction rate coincides with the lowest number of people going through court nationwide since at least 1980. The figure has dropped almost 40 per cent since 2009 – from 127,000 prosecutions to fewer than 77,000 nationwide.

Labour’s police spokesman Stuart Nash said he was concerned about the sharp decrease. “It says to me that the police just haven’t got the resources to catch the bad guys.

Fewer prosecutions is a good thing if there is less crime. And the Victims of Crime survey shows a 30% drop in crime from 2008 to 2013. This is a scientific survey of 7,000 NZers, so is not influenced by Police resources, prosecution decisions, whether crime is reported etc.



No jury will convict

April 4th, 2016 at 7:00 am by David Farrar

The Herald reports:

A man who was killed after allegedly breaking into a home in Australia was an ice addict and had previously been jailed for raping a teenage girl.

I’d say the chances of the home owner (and father) being found guilty of murder by a jury are basically zero.

Marae justice panels

April 3rd, 2016 at 2:00 pm by David Farrar

The Herald reports:

An expansion of a radical pilot that allows adults to avoid court and criminal convictions for low-level offences has strong backing, including from Police Commissioner Mike Bush.

Three pilot iwi justice panels – also known as marae justice panels – have been running in Manukau, Gisborne and Lower Hutt since July 2014. A similar community justice panel operates in Christchurch.

Police steer some low-level offenders to the panels instead of court. Offenders must be adults, must intimate guilt or admit the offence, and the offence must carry a maximum penalty of six months’ imprisonment or less.

Family violence and methamphetamine offences are excluded. Common charges dealt with by the panels include driving offences, possession of stolen goods and trespassing.

Appearances aren’t limited to Maori – in South Auckland for example, about 60 per cent of participants are non-Maori.

I’d be against this if it was race based, but if they are effective, open to all, and reduce reoffending they’re a good thing.

The threshold seems appropriate – minor offences only.

If an offender is not a recividist offender or a violent or sexual offender, then the focus should be on rehabilitation and stopping reoffending.

But when the offences are serious (such as rape, GBH) or someone is a recividist (a repeat burglar) then the main focus has to be on protecting the community by having them out of circulation.

Panellists always include one police staff member and a mix of community leaders and volunteers, church leaders, kaumatua, social workers and school teachers.

Manukau Urban Maori Authority (Muma) run their marae justice panels weekly at Nga Whare Watea Marae and Papakura Marae.

Irirangi Mako, justice services manager, said agreed actions with offenders include volunteering at a local marae or food bank, a formal apology to a victim or agreement to make repayments.

“Agreements can also include working with other agencies or services that support positive change such as counselling and anger management courses.”

The Ministry of Justice has noted a “huge” level of community support for restorative justice panels, saying once people enter the court system it becomes harder to address the causes of their offending.

The key thing is to have a robust evaluation of how they work. What is the reoffending rate of those who go through these panels compared to those who do not (after adjusting for types of offences etc).

Don’t shoplift then whine about the cost

March 19th, 2016 at 12:00 pm by David Farrar

Stuff reports:

The Warehouse has been accused of illegally demanding “compensation” from shoplifters it catches stealing in its stores.

The claim was made by a lawyer for two foreign tourists in Hastings District Court on Tuesday, who admitted stealing from The Warehouse in Blenheim last month.

The store issued a “civil recovery notice” to German Laura Fischer, 21, and Dutchman Jimmy Haluani, 22, demanding $275 each in recompense. Fischer’s notice said the goods she had taken were worth $11.

Oh diddums.

Don’t shoplift and then you won’t get stung for costs. I imagine it costs a lot to deal with a shoplifter – so this may just be cost recovery.

Fischer and Haluani were accused of being part of a shoplifting gang that stole $1200 of clothing, electrical gear, outdoor equipment and groceries from six Blenheim stores, of which The Warehouse was one.

They appeared in court in Hastings because they are in Hawke’s Bay picking fruit.

Cressey asked the judge to take the $275 payments made to The Warehouse into consideration if he was going to fine the pair.

But Judge Courtney said the “brazen” nature of their offending meant it warranted more than a fine, and sentenced each to 100 hours of community work.

So it wasn’t just an $11 item nicked.

Young robbers need consequences

March 17th, 2016 at 11:00 am by David Farrar

The Herald reports:

Police in South Auckland have labelled the actions of a group of young thieves who robbed a Papakura dairy “deplorable and disgusting”.

Counties Manukau district prevention manager, Inspector Dave Glossop, said police were still investigating the incident, which saw up to 10 teenagers storm the Redhill Superette and took $2500 worth of items from the store early yesterday evening.

Two shop keepers behind the counter are shown in CCTV footage arming themselves with a hockey stick and cricket bat. The youths, however, continue loading items including cigarettes into their arms before taking off.

Mr Glossop said: “We’re experiencing a lot of youth offending at the moment, particularly where offenders are a lot younger than we’re used to.

The robbery is so brazen, with the youths being easy to identify, that they seem to think they are immune from  consequences. I suspect most have been in trouble before. This time they need to face serious consequences.

Co-owner of Redhill Superette in Papakura Indy Purewal said about 10 teenagers, who he believed were all locals, came to the store about 5pm yesterday wanting to buy cigarettes.

The store workers refused to serve them as they didn’t have identification, he said.

About half the group started yelling at the two workers and taking items, while others remained outside, Mr Purewal said.

One of the youths took a worker’s iPhone6s, while another grabbed a large handful cigarettes, he said.

Other items were also taken and another youth tried to break into the shop till, he said.

Such a sense of entitlement. They went them to buy cigarettes, but when refused, decided that gave them the right to steal what they wanted.

You can’t give gunman potential hostages

March 10th, 2016 at 9:00 am by David Farrar

Stuff reports:

The mother of a man suspected of shooting four police officers in the Bay of Plenty is pleading with police to let family bring him out of the Kawerau house where he remains holed up.

The woman says her son, who Stuff has chosen not to name, is terrified of surrendering, but he is prepared to give himself up, if his family can accompany him.

The suspected gunman has been keeping in touch with whanau and friends by text message and social media from inside the house on Onepu Springs Road.

He has shot four people already. Why risk giving him hostages? He has a simple choice – surrender and not be shot, or don’t surrender and eventually risk being shot.

She said her son wanted he to come out freely, but was terrified of being sent to prison. She was also concerned about his safety.

So actually his concern is being arrested, not safety. That is her concern. Definitely you don’t give him potential hostages. The moment others are in the house, the ability of the Police to end the stand off is greatly reduced.

And if he was terrified of being sent to prison, he shouldn’t have shot four police officers. He also should choose a better career than drug dealer also.

“It’s just heartbreaking. We’re trying to help the police to diffuse the situation and they are not even listening to the whanau.”

Sad to see them blaming the Police, not him. The best way they can help is to persuade him to surrender.

He had been in trouble with the law previously, she said, but not for some time.

This week? This month?

My thoughts are with the four wounded officers, their families, friends and colleagues. And most of all with the Police at the scene who may have to risk their lives to bring this criminal to justice.

UPDATE: He has surrendered.

Strangling recommended to become a specific criminal offence

March 9th, 2016 at 4:00 pm by David Farrar

Stuff reports:

The victim of a brutal samurai sword attack is backing a proposed law change that could see stranglers jailed for up to seven years.

At present, a gap in the law means offenders are often charged with the offence “male assaults female”, which carries only a two-year maximum jail term.

The Law Commission was asked by the justice minister last year to look into whether it should become a specific criminal offence, as it is in some other countries.

Simonne Butler, one of the victims of samurai sword attacker Antoine Dixon, said she supported the law change, because strangling was “a really common way for men to control women”.

The Law Commission’s report is very persuasive. Strangulation can come close to attempted murder but it is hard to get that level of proof. As it doesn’t leave wounds or broken bones, then the more serious assault charges are not available, so the person doing it only gets charged with a minor assault charge.

The seven year maximum sentence seems about right. The different assaults have the following maximums:

  • Wounding with intent to cause GBH- 14 years
  • Injuring with intent to cause GBH – 10 years
  • Wounding with intent – 7 years
  • Injuring with intent – 5 years
  • Injuring by unlawful act – 3 years
  • Aggravated assault – 3 years
  • Assault with intent to injure – 3 years
  • Assault on a child or male on female – 2 years
  • Common assault – 1 year


March 9th, 2016 at 9:00 am by David Farrar

Stuff reports:

Prime Minister John Key says he has been burgled three or four times in his life, including once when he “screamed” after confronting an intruder. 

Perhaps the most embarrassing was when his wife Bronagh’s birthday present – a pink Honda City – was stolen when they lived in Wellington. 

His comments came as Police have defended their efforts to solve burglaries, despite the percentage of overall crimes solved dropping below 10 per cent in some parts the country.

On the burglary resolution rate, it is worth noting that there is a difference between the resolution rate for individual burglaries, and the arrest rate for burglars.

Sadly, unless a burglar is stupid or unlucky, it is hard to prove who burgled a house. The nature of burglary is there are generally no witnesses, so it is not like many other crimes. Unless they get caught at the time, captured on camera unmasked, leave DNA/fingerprints or get found with your property, it is hard to prove they did a burglary.

However while a burglar may not get prosecuted for a specific burglary, most burglars do get caught eventually. They may have done 50 burglaries before being caught. There will be enough evidence to prove he or she did say five of them (the Police will have a fair idea they did the others in the area) so officially only five out of 50 burglaries are resolved, but the burglar has still been caught and punished.

Now ideally every burglary will get resolved. It brings peace of mind to know the actual burglar who robbed your place has been found and convicted – for your burglary. But the nature of burglary is that the resolution rate will never be particularly high. The more important indicator is the actual incidence rate.

He had been burgled three or four times, including most recently at his St Stephens Ave house in Parnell, when he was Leader of the Opposition. Those involved were caught. 

Earlier he and wife Bronagh were burgled when they lived in Johnsonville, Wellington, before he entered politics. 

“They stole Bronagh’s birthday present at the time, which was a pink Honda city. Which was of some amusement to the cops at the time – that I’d be stupid enough to buy her one.”

When he lived in Auckland’s Burwood Crescent burglars had “cleaned out” the house.

On one occasion at the Key’s Parnell house he had gone down stairs at 3am – clothed – to see what was happening when the alarm went off.

They had thought it was set off by bad weather.

“The wife sent me down to sort it out … as it turned out it was someone downstairs. I started screaming and the next thing you know the cops turned up.”

Heh, most PMs wouldn’t admit to screaming at a burglar – or buying a pink Honda City 🙂

Just taken a look at the crime stats. This is the rate of burglaries per 10,000 population from 2004 to 2014:


There was a very good decline from 2009 to 2014. The rate has been static since then. would be good to have it decline further.

Data driven sentencing

February 28th, 2016 at 2:00 pm by David Farrar

The Herald reports:

Punishments dished out by judges could soon be influenced by cutting-edge computer data modelling on offenders’ behaviour.

More than a million dollars will be spent on a system that will help indicate what could happen to criminals later in life depending on the severity of their punishment.

Judges have already been told that in certain cases a fine could be a better option than community work, after analysts found criminals getting the latter were more likely to reoffend and rely on the dole.

Justice Minister Amy Adams believes the work could radically change the way policymakers, judges and the general public think about the balance between rehabilitation and punishment.

“It’s almost amazing that, to date, it has been done more on a societal instinct, really, as to what we think is right.

“For the first time now Government is starting to use information it has across sectors, across agencies in a much more analytical way. I think this will inform not just policy, but inform a good discussion amongst judges around the sorts of options they take.”

High-level advice about the effect of long-term jailing on reoffending was already available, Ms Adams said, but the development of actuarial-type modelling would give much more detail.

Information such as an offender’s age and criminal history could be matched with possible sentencing or rehabilitative options to see the likely outcomes.

That’s a great idea. Data is not a substitute for judgment, but can play a key role is more informed decisions and probability of impact.

A key part of the data is the offender’s criminal history. A first or second time offender may react better to a fine, while more recividist offenders will not.

Gang life seems to pay well

January 22nd, 2016 at 11:55 am by David Farrar

Stuff reports:

He is a member of a notorious gang and faces serious criminal charges, but Stephen William Daly might also be in the running for father of the year.

The Head Hunters member, on electronic bail for his alleged role in armed kidnappings in the Bay of Plenty a year ago, was so frustrated at not being allowed to leave his Whangarei property and take his kids to the playground that he took extreme measures – bringing the playground to them.

The 33-year-old saw a school playground being auctioned on TradeMe with a $1 reserve and began bidding.

“I thought ‘we can do this’. We had the space for it, it seemed cool, like a mean idea.”

Competition was fierce but he won the auction – “we got it for about two grand” – and he sent a relative down to Opotiki in the Eastern Bay of Plenty to pick it up.

But it was completely dismantled, and Daly had to figure out how to put it back together in his back yard in Mahana Pl, Raumanga, a poor suburb of Whangarei.

“We had no instructions or anything, just photos off TradeMe. We’d grab one pole, look through all the photos at where the gaps were – we jigsaw puzzled it for about two weeks. Our builder was bloody awesome.”

When it was finally completed, Daly posted his delight on Facebook with the post: “It gets to ya telling ya babies you can’t take them to the park because I’m on the bracelet so I did something about it. I no longer have that problem. … school playground at home, boom.”

I think to be father of the year, you teach your kids not to do crime. But regardless, it is a nice story about a dad wanting to give his kids a good time, and an innovative solution to it. So I’m all for that.

But what interested me was this part:

Daly is slowly building his property into a paradise for his children, aged 7 and 6, whom Stuff has chosen not to name. He’s just put in a pool and is now laying large decks. Also on the property yesterday was a jetski and a four-wheel motorbike, as well as a pet turtle that had escaped its enclosure.

Previous Facebook posts show Daly driving a vintage muscle car, registration Psyko, and dining with members of reggae band UB40. 

I’m not sure what his income source is. Maybe he is really good at sharemarket investments. But on the assumption his income comes from gang related activities, it seems to be pretty profitable to be able to afford a pool, large decks, a jetski, a motorbike and a vintage car.

Maybe I’m in the wrong job?

Rugby player gets off assault

January 12th, 2016 at 1:00 pm by David Farrar

Stuff reports:

A promising young rugby star has avoided conviction after punching his ex’s date in the head.

Teariki Ben-Nicholas debuted for New Zealand’s under-20 team at the Oceania junior champs last year.

The No 8 also plays senior club rugby in Wellington and for the Hurricanes under-20 team.

Ben-Nicholas moved from Auckland to Wellington to study law and commerce.

According to court documents released to The Herald, Ben-Nicholas was out drinking in Wellington, following a “rugby success” in October 2014 when he found out his ex girlfriend was at a Wellington bar with her new boyfriend.

A “slightly intoxicated” Ben-Nicholas went to the bar, approached the other man in the toilets and punched him in the head.

The 20-year-old admitted a charge of common assault in relation to the incident and made a “full and genuine apology” during a restorative justice meeting, The Herald reported.

At sentencing in the Wellington District Court, Judge Peter Rollo granted an application for a discharge without conviction.

Judge Rollo said the consequences of a conviction would be out of proportion to the seriousness of the offence.

However, police opposed the application for a discharge, arguing the assault was serious and any effects on travel plans and work as a professional rugby player were not certain.

During last month’s sentencing Judge Rollo said: “The information which is before me suggests that you have every opportunity to pursue a professional rugby career at the top level, maybe even rising as far as the All Blacks if your development continues.”

This is pretty appalling.

It was an unprovoked assault, due to jealousy. He should get a conviction for that.

If he really is a good rugby player, he’ll be able to travel to play for a top team. It just means they’ll need to get a visa. An assault conviction is not an automatic travel ban.

The judiciary is far too happy to let criminals off without a conviction if they are a sportsperson.

Crime down 30%

October 8th, 2015 at 9:00 am by David Farrar

The Ministry of Justice has just published the latest crime and safety survey, and it has found the incidence of crime dropped 30% from 2008 to 2013, or from 2.7 million incidents to 1.9 million.

This is not based on whether crime is reported to the Police. It is a scientifically robust survey of around 7,000 New Zealanders and hence is unaffected by whether the Police target particular crimes or not.

The report is here.

Some highlights:

  • Incidents down by 787,000 over the last five years (dropped 201,000 the previous three years)
  • Household incidents down 40% and personal incidents down 25%
  • Assaults down 232,000
  • Robberies down 32,000
  • Incidence rate per 100 households dropped from 52 to 29
  • Incidence rate per 100 persons dropped from 53 to 38
  • Number of adult victims of crime dropped from 1,260,000 to 865,000

So these are great trends. As I said, this survey is far more robust than Police stats which can be affected by stuff such as policing priority decisions. The incidence rate of crime has dropped quite massively since 2008, and that is a good thing.

Also of interest is some of the data on domestic violence and sexual offending

  • 6% of women and 4% of men were victims of violence from an intimate partner during the year
  • 2% of women and 0.5% of men were victims of sexual offending from an intimate partner during the year
  • 26% of women and 14% of men have had partner violence at least once in their lifetime
  • 22% of women have had distressing sexual touching, 11% attempted rape and 11% rape

That’s distressingly high levels of rape.

Looks a lovely fellow

September 18th, 2015 at 7:00 am by David Farrar


The Herald reports:

Damian Wereta might be locked up for the next 17 years, but it could have been worse.

The Crown wanted preventive detention — an indefinite term of imprisonment — for the 35-year-old Paremoremo inmate who “shanked” two fellow prisoners.

But this morning Justice Pamela Andrews declined the application, instead jailing Wereta for another 7 years 9 months.

The term will be served on top of the 11 and a half year stint the Black Power member was sentenced to in 2013 for a Dunedin armed robbery and a vicious attack on a group of Corrections officers while on remand.

The father of seven

Remember Labour is proudly campaigning for the rights of people who can’t afford children to have as many as they like!

has an extensive history stretching back to 1997 and features 68 convictions, including an attack on a Crown prosecutor in court.

Sounds like an ideal candidate for preventive detention.

The judge agreed but because the two counts of wounding with intent to do grievous bodily harm represented Wereta’s second strike, the 93-month sentence would have to be served in full without the chance of parole.

Excellent. Remember again Labour is vowing to repeal this law.

If the law had been in place earlier he would very likely be on a third strike and that means he would have got 14 years, not seven years nine months.

Send the cops in

September 9th, 2015 at 9:57 am by David Farrar

The Herald reports:

Protesters occupying Kaitaia Airport have forced a flight carrying five specialist doctors to be cancelled this morning.

Activists moved onto land at the airport at about lunchtime yesterday, cancelling flights into and out of the Far North, in protest against a $100 million Treaty of Waitangi settlement due to be ratified today.

The latest flight cancelled was expected to land at 8.30am with five doctors on board from Whangarei – including one dentist and one pediatrician.

The Police have no choice but to remove the protesters, unless they agree to leave in the very near future.

There are some protests where the best thing is to ignore them, because all they’re doing is sitting on a roof at Parliament, or occupying a park.

But this is a protest which has closed a vital transport hub. Residents are going without specialist health care. It is the equivalent of blocking a road. It is preventing people from going about their jobs, and their travel.

The Police need to show the law applies to all.

And what are the local MPs saying or doing? Winston, Kelvin, Shane and Mark. Do you have nothing to say on the illegal occupation of a vital transport hub.

A decent sentence

August 2nd, 2015 at 4:00 pm by David Farrar

Stuff reports:

Three generations of women in a Gisborne family turned on a 12-year-old relative who claimed she had been sexually assaulted by her uncle, in a case that a judge said “made a mockery of notions of whanau”.

The case involved a mother and daughter forcing the girl to retract claims that her uncle had indecently assaulted her, after a jury had found him guilty.

The women, aged 48 and 29, and both closely related to the offender, have been jailed for three years for attempting to pervert the course of justice. They cannot be named, to protect the girl.

Three years is a decent sentence. It is in fact longer than the sentence of the original offender, whose conviction they were trying to overturn.

In mid-2013, while the offender was in custody pending sentencing, the two women made repeated visits to the girl’s home, where they would take her aside from her parents and tell her “what her responsibilities were”, the judge said.

They marched the girl to Gisborne District Court where, in front of a registrar, she signed a sworn retraction of her allegations. 

Judge Adeane said the language used in the retraction was certainly not the girl’s and, when she was spoken to privately by an independent lawyer, she reaffirmed her allegations against her uncle.

Throughout this time, the women were regularly phoning the offender in prison. The judge said these calls, which were intercepted, displayed the “energy and urgency” the women were putting in to persuade the girl to retract her allegations.

The women told the man they would assault the girl after the affidavit had been signed, and would get her to sign it “even if we have to kill the little beggar”.


Another relative, concerned at the pair’s actions, contacted police.

Well done that person.

The uncle was sentenced to two years and three months’ jail in July 2013, after a jury found him guilty of indecently assaulting the girl when she was aged 10-11. He was sentenced to a further year in jail for his part in attempting to pervert the course of justice.


Did the system fail or did Robertson fail?

July 31st, 2015 at 12:00 pm by David Farrar

There’s an article at the NZ Herald on the killing of Blessie Gotingco by Tony Robertson. It asks and answers 10 questions on the case and concludes that the system didn’t fail.

Many killings are preventable. A wrong parole decision, a lack of supervision by Corrections etc. But in this vase the sad reality might be that Robertson was always going to do something like this.

Some of the 10 points the article makes are:

  1. Robertson was not given parole and served every day of his sentence
  2. He didn’t get preventive detention at 19 because he didn’t have a long enough history of sexual offending, and the Court of Appeal had overturned a preventive detention sentence in a similar case
  3. He was constantly monitored by GPS. Once he was telephoned within two minutes of going somewhere he shouldn’t, and arrested within 45 minutes of not responding
  4. An extended supervision order had been granted to take effect when his six months of release conditions expired
  5. Probation Service checked up on him 38 times in five months – much more than average

The only good news is that it is likely he now will get preventive detention.

Mercy backfired

July 29th, 2015 at 11:00 am by David Farrar

Stuff reports:

When Tony Robertson was found guilty of abducting and molesting a 5-year-old girl a decade ago, a judge could have locked him up indefinitely.

If he had received preventive detention then, it’s likely Auckland mum Blessie Gotingco would still be alive now.

But 10 years ago, the sentencing judge opted to show mercy towards the then-teenage Robertson standing in the dock before him – in the hope he would turn his life around while behind bars and emerge a reformed man.

But it didn’t happen.

And Blessie died.

In prison, Robertson completed no courses of treatment.

He was repeatedly denied parole because of his lack of reform.

He continued to deny responsibility for his attack on the 5-year-old girl. It was all a police frame up, he insisted.

Just as he now denies raping and murdering Blessie Gotingco – her death was an accident, and evidence of rape was planted by police, he said.

At least this crime will have a life sentence, and his denial of responsibility should mean he never gets out.

Robertson’s offending began at age 16, in 2003, and included convictions for assault, aggravated robbery, possession of an offensive weapon, wilful damage, threatening to kill, burglary and receiving.

Then came the Tauranga kidnapping, when he was 18, in 2005.

The offending took place over two days, the worst of which was on December 15.

On December 14, he attempted to lure two children into his car with promises of Christmas presents, saying he knew their mothers and would take them home, court records of the case show.

And when he was caught:

And when questioned over testimony from the other children he tried to entice, who had identified him, he said: “Maybe I’ve got a twin brother that drives the same car as mine.”

Not exactly remorseful was he.

Having been found guilty, he was shown leniency by the sentencing judge.

“You are not simply to be assumed a lost cause at the age of 19,” Justice Patrick Keane told him at that time.

The judge opted not to sentence Robertson to preventive detention – which could have kept him locked up for the rest of his life.

Crown prosecutor Simon Bridges (before he became an MP) had pushed for the tougher sentence, arguing further that if preventive detention were not meted out the sentence should be at least 12 years.

But Justice Keane said that though it was possible the kidnapping and abduction was the start of what could become a pattern, Robertson had a history of violent, rather than sexual, offending.

Sadly the Judge got it wrong. I can see why at 19 he was reluctant to  give him preventive detention, but let us hope he gets it now.

Private prosecution dismissed

July 5th, 2015 at 7:00 am by David Farrar

Stuff reports:

A top principal has had assault charges against him dropped after a judge ruled he’d been the victim of efforts by his ex-wife to “destroy” him. 

Peter Clague, formerly Auckland Kristin School’s executive principal, was the subject of a private prosecution brought by his ex-wife relating to two alleged assaults in 2010. 

Jeanne Denham alleged two months after the pair married in 2010 he pushed her to the ground, causing significant bruising to her tailbone after shaking her with force, telling her to “shut the f— up”.

She didn’t lay a formal complaint until 2014 and took a private prosecution against Clague through Queens Counsel Marie Dyhrberg. 

Clague’s jury trial began in the Auckland District Court on Monday and on Friday Judge David McNaughton said he was taking the “rare” step of dismissing the charges, following an application from Clague. 

His lawyer Mike Lloyd argued there had been an abuse of the court’s process and on Friday afternoon Judge McNaughton told the jury he agreed after an “anxious” night pondering the application. 

“This whole prosecution is motivated by an intention on the part of Ms Denham to effectively destroy Mr Clague’s reputation and ruin his career, and to consequently damage Kristin School and possibly also to bring pressure to bear on him in relation to a property claim in the Family Court,” Judge McNaughton said. 

He said no properly directed jury would be able to convict Clague. 

“No useful purpose would be served to continue prosecuting that charge for what was essentially a non injury assault made five years ago, and complained about two years ago. He’s suffered enough. I’m bringing this to an end now.” 

I hadn’t followed this case closely but what I had read alarmed me. The Police are pretty good at laying charges for domestic violence, and the fact they had refused to suggested the evidence wasn’t there. Combine that with waiting for years to complain.

It is very rare for a Judge to stop a trial, but the Judge I think got it right in saying this was about utu and trying to destroy the ex.