Justice Minister Paul Goldsmith and Police Minister Mark Mitchell sounded triumphantly emphatic when they brayed about their crackdown on criminal gangs on November 20 last year.
They were drawing attention to a raft of new laws that would take effect that night.
Gang insignia would be banned in all public places, courts would be able to issue non-consorting orders, and Police would be able to stop criminal gang members from associating and communicating.
They presumably thought there were no loopholes in the legislation imposing the ban on gang patches.
A judge in Lower Hutt – not too far from Parliament – has found a loophole, however, and a gang member has been given back the patch that was taken from him.
The ministers’ joint statement from the Beehive proclaimed:
“The free ride for gangs is over when the clock strikes midnight tonight, with tough new laws officially coming into effect.“
Goldsmith said:
“Gang patches will no longer be able to be worn in public. To earn the right to wear a gang patch you have to have committed violent crime. There are a trail of tears and victims behind each one of those gang patches.
“Gangs in our country think they’re above the law and can choose which laws they comply with, and this Government does not accept that. We have a justice system that applies equally to everyone.”
And:
“Greater weight will also be given to gang membership at sentencing, enabling courts to impose more severe punishments.
“Repeat offenders continually convicted of displaying their patches in public will be subject to a new court order, prohibiting them from possessing any gang insignia either in public or private for five years.”
The message was reinforced on the Justice Ministry website:
Gang laws come into effect
The Government has passed two new laws that aim to reduce the harm caused by gangs, with both new laws taking effect from 21 November 2024.
The first new law is the Sentencing Amendment Act 2024(external link), which makes it easier for judges to consider gang membership as an aggravating factor at sentencing.
The second new law is the Gangs Act 2024(external link) which:
A judge in Lower Hutt – not too far from Parliament – has found a loophole, however, and a gang member has been given back the patch that was taken from him.
The ministers’ joint statement from the Beehive proclaimed:
“The free ride for gangs is over when the clock strikes midnight tonight, with tough new laws officially coming into effect.“
Goldsmith said:
“Gang patches will no longer be able to be worn in public. To earn the right to wear a gang patch you have to have committed violent crime. There are a trail of tears and victims behind each one of those gang patches.
“Gangs in our country think they’re above the law and can choose which laws they comply with, and this Government does not accept that. We have a justice system that applies equally to everyone.”
And:
“Greater weight will also be given to gang membership at sentencing, enabling courts to impose more severe punishments.
“Repeat offenders continually convicted of displaying their patches in public will be subject to a new court order, prohibiting them from possessing any gang insignia either in public or private for five years.”
The message was reinforced on the Justice Ministry website:
Gang laws come into effect
The Government has passed two new laws that aim to reduce the harm caused by gangs, with both new laws taking effect from 21 November 2024.
The first new law is the Sentencing Amendment Act 2024(external link), which makes it easier for judges to consider gang membership as an aggravating factor at sentencing.
The second new law is the Gangs Act 2024(external link) which:
- bans the display of gang patches and insignia in public places
- gives Police the power to stop gang members from gathering in public by issuing dispersal notices
- gives Police the power to apply for non-consorting orders to prevent specified gang offenders from associating and communicating with other specified gang offenders.
Gang insignia includes any symbol or representation commonly displayed to indicate membership of a gang and includes items to which insignia are attached (such as a jacket or a vehicle).
But this morning PoO learned that a gang member – who had fallen foul of the patch ban – will get his Mongrel Mob patch back following a ruling by a district court judge.
Syd Te Rata was wearing the patch while riding his motorcycle around 3.30am on April 19 when he was stopped by police.
In July, Te Rata, who pleaded guilty in the Lower Hutt District Court to wearing his Mongrel Mob patch in public as well as refusing blood, driving while forbidden and resisting a police officer, argued the judge had discretion to return it to him.
The Gangs Act 2024 states that when a person pleads guilty or is convicted, the gang insignia is forfeited to the Crown. It may then be destroyed or “otherwise disposed of” as the court directs.
Otherwise disposed of?
What does that mean?
According to Te Rata’s lawyer, Chris Nicholls, the phrase “otherwise disposed of” allowed judges to return the items to their owners.
“The court ultimately has a wide and unfettered discretion,” Nicholls said.
“There’s nothing in the law, and I’m certainly no legal scholar but from what I can see, that says this can’t happen.”
Police prosecutor Emily Eden reckoned that was bollocks: “otherwise disposed of” did not include returning a patch.
To return it would directly contradict the purposes of the act.
One News reports that Te Rata was convicted and discharged on the driving while forbidden, resisting a police officer and displaying gang insignia in public charges, and sentenced to community detention and supervision on the blood specimen charge.
Then comes the sob story:
He had told the court he was wearing the patch while in a period of mourning for a loved one.
Lower Hutt District Court judge Bruce Davidson was sympathetic and ordered the patch to be returned to Te Rata.
In his decision, Davidson said if all Parliament had intended was the destruction of a patch, it would have said so.
“Return to an offender is neither expressly or implicitly precluded. It is an open and available avenue of relief for the court as long as proper regard is given, in each the particular case, to the Act’s purposes and Parliament’s intent,” he wrote.
“I conclude that the words ‘otherwise dispose of’ are sufficiently wide to include return to an offender.”
Nicholls told OneNews his client was “very pleased”.
He said he had written to police to see when Te Rata could pick up his patch from a police station.
And that – unless the Crown appeals – disposed of one more case…
Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.
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