More than a month ago, in a piece entitled "You Don't Have To Apologize - You Do Have To Understand", this column sought to use a case then-prominent in the media to illustrate how race and privilege influence the administration of our criminal justice system. Its conclusion, perhaps unsurprisingly, was that it was pretty much impossible to deny that despite what you might have been told about New Zealand being an egalitarian paradise, even here "race" has a bearing upon what sort of outcome you might get if you were to find yourself thrown before the courts.
The trouble with complex ideas, of course, is that they're often reduced to simple ideas. And the trouble with simple ideas is that they are either wrong - or so lacking in nuance upon a surface reading of same that they might as very well be.
And so it is with recent commentating from a number of quarters about a specific pair of outcomes which have been delivered up unto us by our criminal justice system.
Last week there was a minor furor over the sentences handed down to a quadrangle of teenage boys up in Northland for their respective parts in a serious string of adrenaline-fueled law-breaking. Between them, they racked up 34 charges of burglary, eight charges of theft, and three charges of receiving - with a sum total for the value of goods they stole clocking in at around eighty thousand dollars.
The sentences for this spate of offending? Up to ten months' home detention for each offender, three hundred hours' community service apiece, and between ten and twenty thousand dollars worth of reparations each.
This was seen as a comparatively light sentence by some observers, and it wasn't long before people started drawing the obvious conclusion - that these kids got off easy because they were white. And that if they'd been brown (although presumably not a son of the Maori King), the outcome would have been incredibly different.
The emergence, a little less than a week later, of a case wherein a 37 year old Maori man, David Leef, was sentenced to a four month term of imprisonment for several charges relating to his poaching of fish from a protected rainbow trout spawning stream, appeared to confirm this.
Here were four reasonably well-off young white guys who'd been 'let off' with Home-D - while a poorer, browner defendant guilty of an arguably lesser crime (which incidentally carries a maximum of 2 years' imprisonment in comparison to burglary's ten) found himself thrown in the slammer.
My newsfeed started filling up with progressive-minded people making a direct comparison between the two cases.
Finally, manifest proof of the festering racial iniquity within our justice system!
Except that's not what we have here. Not exactly, anyway.
A little amateur sleuthing with the Google-daemon revealed there was a bit more to this case than the simplistic narrative deployed across social media which sought to explain the disparity between Leef's sentencing and those of others as being largely the result of Leef's race.
For starters, there's the fact that Leef was originally supposed to be sentenced, along with his co-accused, back in April 2015. The reason why it's taken more than a year for him to finally appear in front of a sentencing judge, is that he breached his bail conditions and went on the run for twelve and a half months. This will, obviously, not have helped him in court - and will have directly counted against his prospects for securing a sentence of home detention instead of a term of imprisonment. There may also have been other factors raised by Probations in accordance with the requirements of the Sentencing Act which might have rendered home detention a non-viable option.
Further counting against Mr Leef will have been his curious decision to refuse counsel for his case (despite being offered legal aid, and assistance from the duty solicitors); and his somewhat ballsy attempt to avoid entering any plea at all (whether guilty or otherwise) on the basis that the New Zealand judicial system had, in his mind, "no jurisdiction" over him for this offending due to it having allegedly taken place on Maori land. Now it has in the past been somewhat possible for skilled defence lawyers to argue what you might term a 'cultural defence' to otherwise criminal conduct with some success. R v Minhinnick (also a case from Rotorua) stands as an obvious example of this. But these are defences, not pleas - and are probably going to be rather difficult for the average layperson to even articulate in a court-room setting, let alone win upon.
Leef's courtroom conduct is relevant here for two reasons. First, and most importantly, because "no jurisdiction" was eventually recorded as a de facto "not guilty" plea on the instructions of the judge. Leef therefore lost his shot at a potential sentence reduction of up to 20% as a result of entering a guilty plea at first instance. And second, for some reason judges often tend to take an instant dislike to defendants who are perceived to be 'thumbing their nose' at the system - whether by refusing to turn up to sentencing while a representative shouts at a judge that they ought to stand down for lack of jurisdiction (as happened in Leef's case); or by refusing to have a lawyer represent you. This last point, in particular, tends to draw the ire of judges (all of whom were lawyers at some point beforehand); and it is relatively well-known about in professional criminal circles that those bold or foolish enough to attempt defending themselves risk more severe penalties for doing so.
I make no claim as to whether any of the above *should* be the case. Merely that it is. And thus that Mr Leef's sentencing is not entirely incomprehensible, even if some might find it objectionable.
Now contrast all of the above with the judicial conduct of the four teens from Northland. They entered early guilty pleas (resulting in substantial sentencing discounts). They were competently represented by professional lawyers. They expressed remorse pre-sentencing, went through restorative justice programs with their victims, made financial restitutions, and pledged to pay everything back out of their incomes.
In other words, they did pretty much everything you could expect a 'model' defendant to do to avoid jail, and invoked pretty much every avenue offered in the Sentencing Act in order to secure a reduced sentence.
They were also able to call upon their youth as a mitigating factor in the offending - as the law tends to look more kindly upon those who are not 'older and wiser' by virtue of their brains not having fully matured yet, while also wanting to give young people caught on the wrong side of the law a better shot at eventual rehabilitation through lighter penalties. A younger person will therefore almost invariably get a lighter sentence than an older man convicted of the same crime.
Interestingly, the Sentencing Act mandates that the court "must" take into consideration all of the above factors. As soon as your lawyer raises it, it pretty much required by law for it to be converted into a a reduction in sentence - although this is subject to a certain degree of judicial discretion.
So in other words, there are fairly logical reasons for the differences in sentencing between these two cases which do not exactly afford a huge degree of scope for race as the main reason for the disparity here.
It is, of course, inarguable that a criminal from a more privileged background is going to be far better equipped to deal with a courtroom setting than one who isn't. But a simplistic focus upon race which eschews an analysis of the other factors at play (such as economic status) doesn't exactly help us to understand this situation - still much less change it.
That is not to say that our judicial system doesn't have a racial problem,. Far from it. Even the New Zealand Police acknowledge their own issues with "unconscious bias" in this area. And from a critical legal studies perspective, it additionally occurs that many a minority offender is going to have far greater struggles to scrub themselves up into the mold of being a 'model defendant' than someone more well off and from the dominant culture.
But while there are some great cases out there with which to prove racial bias in sentencing - and, importantly, we must remember that no victim is perfect - Mr Leef's circumstances would not necessarily appear to be one of them.
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