Guest Post: David Garrett

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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.

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