The legislation states:
If a person pleads guilty to, or is convicted of, an offence against subsection (1), the gang insignia concerned—
(a) is forfeited to the Crown; and
(b) may be destroyed or otherwise disposed of as the court, either at the time of the conviction for the offence or on a subsequent application, directs.
In what appears to be a first, District court judge Lance Rowe has decided to return a patch to its convicted wearer.
He came to the decision using the concept of tikanga or kinship. The court reporter detailing this decision says it "may yet be appealed by the police."
I don't want to argue either way for the ban on gang patches in public places. But yet again, we are seeing a court thwart the government's position.
Police Minister Mark Mitchell is emphatic: “Our message to the gangs is clear - the days of behaving like you are above the law are over.”
Are they?
About submissions from the gang member in question, the judge wrote they "could be recognisable in tikanga terms as consistent with expressions of mana and whanaungatanga."
As we know, these concepts can be quite elastic. Whatever they mean - or are purported to mean - in this case they put the rights of the offender first. In this case they have been used as devices to allow an offender to thumb his nose and avoid the consequences. His patch is very precious to him apparently but on at least two occasions (another caught on CCTV camera) he transgressed the legal ban and risked losing it. He thought he'd get away with it. And he has.
In this judge's application of the law, the very clear message the ban is meant to send, has been muddied and weakened.
The gang patch ban aside, there are two big issues here: the increasing admittance of Maori concepts in New Zealand's system of law, and secondly, their utilisation to counter government intent.
The message that sends is to expect more ambiguity and confusion, and less transparency and certainty for anyone involved in the justice system. And if you don't like it, don't expect your vote to make any difference.
Lindsay Mitchell is a welfare commentator who blogs HERE - where this article was sourced.
3 comments:
This is an illustration of what happens when "tikanga" is allowed to be followed. If a judge refuses to follow the clear meaning of Parliament because that would be inconsistent with a criminal's mana, then isn’t sending criminals to prison also inconsistent with their mana, as is making people repay debts, pay tax, or be told what to do by the road code. We already know that tikanga allows people to abuse their children so maybe the horse has already bolted.
Judges can be dismissed. From Google:
"A New Zealand judge can be removed from office for misbehaviour or incapacity by the Governor-General acting on the advice of the Attorney-General, following an address by the House of Representatives. This process begins with a complaint to the Judicial Conduct Commissioner, who may establish a Judicial Conduct Panel to investigate. If the Panel's recommendation for removal is accepted by the Attorney-General, Parliament must then formally recommend to the Governor-General that the judge be removed."
"Misbehaviour" would include "refus[ing] to follow the clear meaning of Parliament."
DO IT.
A THOUSAND up ticks to Barend.
I hope Mark Mitchell reads Breaking Views!
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