Thread: Discharge Without Conviction

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

Disagree, he shot someone end of story. If you are arguing the victim "asked for it" then I would suggest you are part of the problem we have with the whole justice system.

Originally Posted by mikee

Disagree, he shot someone end of story. If you are arguing the victim "asked for it" then I would suggest you are part of the problem we have with the whole justice system.

Agree with this principle, if someone hits or rapes a lippy woman would she have asked for it too?

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Originally Posted by Brakelie

Agree with this principle, if someone hits or rapes a lippy woman would she have asked for it too?

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No conduct of the victim - foolish or poor or otherwise - can possibly excuse rape as a reaction in the slightest. I think you (attempted rhetorical) question is not well thought out.

But hitting? Yeah, depends on the actual circumstance, see Tait.

"
[3] In response the complainant came up to the passenger side of Mr Tait’s
vehicle. The window was down. She leant into the vehicle and began shouting at
Mr Tait, disputing his accusations about her driving. As she shouted at Mr Tait, he
shouted back. He then struck her across the face with his open hand.

[15] In assessing the gravity of offending, the background circumstances are
relevant, and is of particular relevance if there are elements of provocation.
R v Taueki stands for the proposition that provocation is relevant to culpability for a
charge of grievous bodily harm when it is serious and an operative cause of the
offending. It was stated that:7
It is not enough simply to claim to have been incensed by the actions of the
victim or another: rather, the sentencing Judge will need to be satisfied that
there was serious provocation which was an operative cause of the violence
inflicted by the offender, and which remained an operative cause throughout
the commission of the offence.

[16] In the discharge without conviction context the provocation must be
operative.

[18] In response the complainant was also guilty of an act of foolishness. Rather
than ignoring Mr Tait or responding in a moderate way, she came up to his car and
put her head inside his car and shouted at him. He had a two year old child in the
back. It can be observed that the act of foolishness by Mr Tait in pursuing and
shouting at the complainant was equalled if not surpassed by the act of foolishness
on the part of the complainant in responding in kind, and in particular in putting her
head inside Mr Tait’s car and shouting at him at close range. It was this act which
seems to me to have been the operative cause of the violence inflicted by Mr Tait.

[20] I differ from the Judge in my assessment of the gravity of the offending. I
see this as a minor assault, not intended to injure. It was reactive and in part an
attempt to stop the complainant from being in his car and shouting in front of his
daughter. I do of course acknowledge that this was in itself in response to a very
foolish act on Mr Tait’s part. However, in my assessment the gravity of his
offending was of a low order. In particular, I see the slap as a reaction to provocative
action by the complainant. Needless to say, if she thought Mr Tait was unfit to drive
then she should have contacted the Police rather than taking the matter into her own
hands.
"

This judgment is by Asher J, one of the best judges we had. He was elevated to the Court of Appeal not long after this judgment and recently retried.

I am just telling you what the law is. I am not arguing that the victim "asked for it". The law is well established that the victim's poor or provocative conduct is a mitigating factor for the seriousness of the offence. This law has also been around for a very long time. I would think it was first established as a case law precedent, then adopted by the Parliament so now it is in a statute. If you do not like it, write to your local MP ask for an amendment to the law. Amendments to laws happen all the time, that is what we all pay the MP's salary for.

Originally Posted by Ultimitsu

I am just telling you what the law is. I am not arguing that the victim "asked for it". The law is well established that the victim's poor or provocative conduct is a mitigating factor for the seriousness of the offence. This law has also been around for a very long time. I would think it was first established as a case law precedent, then adopted by the Parliament so now it is in a statute. If you do not like it, write to your local MP ask for an amendment to the law. Amendments to laws happen all the time, that is what we all pay the MP's salary for.

I understand and appreciate that you have taken the time to explain how the judge came to her decision and how this particular law is applied Ultimitsu.
We have been very concerned about a name caller being shot and now forum members want to 'shoot the messenger' a strange irony indeed...

If we as forum members wish to make our position known should we contact the Minister of Justice or someone else ??

Bearing in mind Kotuku's comments above from FFS

Originally Posted by Moa Hunter

I understand and appreciate that you have taken the time to explain how the judge came to her decision and how this particular law is applied Ultimitsu.
We have been very concerned about a name caller being shot and now forum members want to 'shoot the messenger' a strange irony indeed...

If we as forum members wish to make our position known should we contact the Minister of Justice or someone else ??

you have to write to your local MP to convince him that section 9 (2) (c) of the Sentencing Act 2002 is wrong and should be repealed, the section says this:

(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:
(c) the conduct of the victim.

If you manage to convince him, he will start a member's bill asking the rest of the Parliament to agree with him. If over half of the parliament agrees with him the bill will be passed eventually and amendment to the law will be made.


Keep in mind, merely make your position known, without more, will not serve any purpose. Because in the end of the day this is democracy, you have to get over 50% support in the Parliament for a bill to pass into law, to have real change.

Provocation was in the past an actual defence. about 20 years ago following a case where a man killed a homosexual man for making an advance on him, the public had an outcry and the law was changed. Provocation defence was removed.

Originally Posted by Ultimitsu

you have to write to your local MP to convince him that section 9 (2) (c) of the Sentencing Act 2002 is wrong and should be repealed, the section says this:

(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:
(c) the conduct of the victim.

If you manage to convince him, he will start a member's bill asking the rest of the Parliament to agree with him. If over half of the parliament agrees with him the bill will be passed eventually and amendment to the law will be made.


Keep in mind, merely make your position known, without more, will not serve any purpose. Because in the end of the day this is democracy, you have to get over 50% support in the Parliament for a bill to pass into law, to have real change.

Provocation was in the past an actual defence. about 20 years ago following a case where a man killed a homosexual man for making an advance on him, the public had an outcry and the law was changed. Provocation defence was removed.

But it appears the provocation defence notions did not get eradicated, some survive and colonise the wardrobes of NZ judges. But it is nevertheless a nonsense as provocation goes out the window when someone leaves for home and returns with an offensive weapon. Your attempt to educate this forum is offensive @Ultimitsu and you should go wash your mouth.

Originally Posted by Ultimitsu

I am just telling you what the law is. I am not arguing that the victim "asked for it". The law is well established that the victim's poor or provocative conduct is a mitigating factor for the seriousness of the offence. This law has also been around for a very long time. I would think it was first established as a case law precedent, then adopted by the Parliament so now it is in a statute. If you do not like it, write to your local MP ask for an amendment to the law. Amendments to laws happen all the time, that is what we all pay the MP's salary for.

Im glad you helped me out with "why we pay the MPs salary" Ill sleep a lot better now. I was thinking most of them are just useless buggers!!

Originally Posted by Ultimitsu

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

I see how you reason ultimitsu, but need for ongoing victim care also depends on where the projectile hits. If you bring a weapon to bear on someone and discharge it, THERE you have the gravity of the offense. Even arguing that he aimed a safe place you can as well say he was a crap shot, but as they say, the benefit of doubt goes to the defendant.

Soe Bai will no doubt also benefit from being on an intelligence watch list for the rest of his life, which will go some way to mitigating any risk he poses. Forget about travel to the US or to Australia. There are always consequences even if a court lets you off. I hope he'll have the moral courage to turn his back on his violent roots, go straight for the rest of his life and prove the judge right. That would be a good outcome. Some would of course say it is not worth the risk, but it's a tricky one to deal with real refugees who are also really violent. One does not exclude the other.

Given the Police are now "investigating a tree to see why it fell on some people" I think as a country we are fucked.

I wonder if they will charge it with "assault causing injury"

Oh and the messenger often gets “shot” for want of a better word. I value our ability here and as a country to have differing views, which is becoming more and more difficult. The more your view differs from the main stream the more people will want to take your ability to even have an alternative view away from you

The only thing that I have learned from studying law, is that the sort of opinions expressed on here about the suitability or not of sentencing is almost always without any merit. It is certainly without proper understanding of either the actual incident or event (relying on the media in one breath when it suits while castigating them for not representing yours adequately about your interests in the next, is both typical and hypocritical) and shows no understanding of public policy considerations or sociological considerations.

It provides no understanding of externalities that affect the wider community or the families of those who deviate, nor the ongoing long stream effects of additional criminal creation, simply by the result of pandering to such expert public emotional response of the type that Utimitsu has valiantly tried to address on here.

It is an expert job, one that can never be done correctly because its always about tradeoffs. Your ignorant opinions don't matter, mine don't either and I know more about this than you do. I have no idea about what is the most appropriate outcome for this case, and the only thing I learn on here is that the ignorant somehow do know and somehow think that they should be contributing to making those decisions.

I must have not gotten the memo that said that ignorance was a prerequisite for the responsible role of becoming a judge.

PS if you are struggling with the meaning of any of the words in the first paragraph, you by the new measure of suitability are now even more qualified for determining the fate of any random matter that emotionally stirs you....

Originally Posted by Sidney

The only thing that I have learned from studying law, is that the sort of opinions expressed on here about the suitability or not of sentencing is almost always without any merit. It is certainly without proper understanding of either the actual incident or event (relying on the media in one breath when it suits while castigating them for not representing yours adequately about your interests in the next, is both typical and hypocritical) and shows no understanding of public policy considerations or sociological considerations.

It provides no understanding of externalities that affect the wider community or the families of those who deviate, nor the ongoing long stream effects of additional criminal creation, simply by the result of pandering to such expert public emotional response of the type that Utimitsu has valiantly tried to address on here.

It is an expert job, one that can never be done correctly because its always about tradeoffs. Your ignorant opinions don't matter, mine don't either and I know more about this than you do. I have no idea about what is the most appropriate outcome for this case, and the only thing I learn on here is that the ignorant somehow do know and somehow think that they should be contributing to making those decisions.

I must have not gotten the memo that said that ignorance was a prerequisite for the responsible role of becoming a judge.

PS if you are struggling with the meaning of any of the words in the first paragraph, you by the new measure of suitability are now even more qualified for determining the fate of any random matter that emotionally stirs you....

It's so obvious you legal types get paid by the word

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Originally Posted by Sidney

The only thing that I have learned from studying law, is that the sort of opinions expressed on here about the suitability or not of sentencing is almost always without any merit. It is certainly without proper understanding of either the actual incident or event (relying on the media in one breath when it suits while castigating them for not representing yours adequately about your interests in the next, is both typical and hypocritical) and shows no understanding of public policy considerations or sociological considerations.

It provides no understanding of externalities that affect the wider community or the families of those who deviate, nor the ongoing long stream effects of additional criminal creation, simply by the result of pandering to such expert public emotional response of the type that Utimitsu has valiantly tried to address on here.

It is an expert job, one that can never be done correctly because its always about tradeoffs. Your ignorant opinions don't matter, mine don't either and I know more about this than you do. I have no idea about what is the most appropriate outcome for this case, and the only thing I learn on here is that the ignorant somehow do know and somehow think that they should be contributing to making those decisions.

I must have not gotten the memo that said that ignorance was a prerequisite for the responsible role of becoming a judge.

PS if you are struggling with the meaning of any of the words in the first paragraph, you by the new measure of suitability are now even more qualified for determining the fate of any random matter that emotionally stirs you....

Does the first paragraph summarize a jury in a court of law?

Originally Posted by outlander

Does the first paragraph summarize a jury in a court of law?

Yep .. juries don't work because of individual competence of the 12 good men and true - they mostly work because of the group dynamic, the ability of a group to produce an outcome that exceeds an individual response, and the strict control of the court on emotional inputs and relevance of evidence that is presented to the group. The error rate is designed to favour the innocent by about 100/1 with the result that more of the guilty are presumed innocent than is accurate and that is the price we pay to have public connection with the justice system.

It is a constant question of competence but overall it sort of works...