Brown slams van Gaalen prison sentence

Russell Brown at Public Address has slammed the two year prison sentence imposed on Kelly van Gaalen, and pointed out that Judge McDonald’s claim that “he had to be consistent with sentences imposed for other, similar offences” is highly disputable – it looks to be quite inconsistent.

Judicial caprice is no way to pursue law and order

Last week’s news that Kaikohe community leader Kelly van Gaalen had been sentenced to two years prison in the Whangarei District Court for possession of cannabis from two plants, with no evidence of commercial supply, has rightly and understandably caused outrage.

(Caprice: an impulsive change of mind, a sudden or unpredictable change of attitude, behaviour etc, etch; whim).

Some of that outrage was expressed here: More than just a troubling sentence.

Van Gaalen was charged after her husband, home alone at the time, was the victim of a violent home invasion in July last year. After he was able to raise the alarm, police arrived – and found the pot.

Charges against Mr van Gaalen were dropped when his wife took responsibility for the cannabis and said it was hers. Her claim that it came from two plants, one of which had gone particularly well that summer, is quite plausible. It’s notable that the police did not report what they found as cannabis heads. I’ll go out on a limb and guess this was not groomed, commercial marijuana and that most of it was some cabbage in a bucket.

Careless to leave something like that around but no evidence it was a commercial stash.

As Jack Tame notes in the Herald, the police presumably had the option to ”use discretion and destroy the drugs”, which might have been reasonable in the circumstances. But they laid a prosecution of possession for supply. Crown prosecutor Catherine Gisler then asked the judge to jail van Gaalen for three years, saying deterrence was important. Perhaps both parties felt it was not their place to exercise discretion.

But in our system it is certainly the place of the judge.

Brown quotes from the herald:

Judge McDonald said there was no evidence of commercial dealing, such as text messages on her phone, but Parliament had set the upper limit for personal use at 28g. Van Gaalen had 24 times that and knew it was against the law.

“It is not for this court to comment whether that is a just law or not,” he said …

Judge McDonald gave her credit for her previous good record and “extremely worthwhile contribution”, but said he had to be consistent with sentences imposed for other, similar offences.

“To say this sentencing has troubled me is an understatement,” he said.

And Brown slams that.

This is, simply, bullshit.

We don’t even need to search for convictions for violent and anti-social offences which have attracted lesser sentences, although there are too many of those to count. We can look at how another judge in the Whangarei High Court was able to exercise discretion in the case of a man who actually was busted in for commercial supply of cannabis.

From the Herald on that case:

Phillips, 49, appeared for sentencing in the High Court at Whangarei before Justice Paul Heath after earlier pleading guilty to six charges of selling cannabis and six of possessing cannabis for supply.

Crown prosecutor Catherine Anderson asked for a starting point of three years’ jail with six months added for Phillips’ previous drug convictions, which went back over 20 years.

“When you came into court your two boys went over spontaneously to greet you. It was very clear to me the nature of your relationship with them,” Justice Heath said.

“It’s clear you did a very good job raising your children. But on the other hand you behave like this, in a manner that shows you lack control of yourself.”

He said the reaction of Phillips’ sons and Mr Blaikie’s submissions had persuaded him by the narrowest of margins to give Phillips another opportunity to turn his life around.

So he got home detention despite previous convictions and despite pleading guilty to selling cannabis.

Brown cites two more cases:

In the same week as van Gaalen was sentenced to jail, in Westport, Ian Alfred Cole, who was convicted of cultivating cannabis and possessing it for supply (in considerably greater quantities than van Gaalen had) was sentenced only to home detention. Cole was caught with all the trappings of commercial supply and had pleaded not guilty. He also had LSD in his possession.

In 2011, Judge McDonald himself sentenced a couple who admitted cultivation and supply (not only of cannabis, but party pills) to only six months’ home detention.

Brown’s criticism is unusually strong for him:

Judge McDonald’s claim that his hands were tied in van Gaalen’s case was not only risible and untrue, it was cowardly.

‘Cowardly’ seems like an odd term, but McDonald’s sentence and reasoning in the van Gaalen case is certainly highly questionable.

And how the Police and the Courts deal with cannabis law and offending is highly questionable. At the least it seems very inconsistent, and at the worst it is simply not working.

While van Gaalen has borne the brunt of Judge McDonald’s heavy handedness (for now) the Judge has put the spotlight on the stupidity of our drug laws. Was this inadvertent or deliberate?

Leave a comment

31 Comments

  1. A former colleague of mine got cought by the police ,he had 3 growing rooms, 10-12 mature plants , a growing room for baby plants around 30, a drying room , an ounce of dry cannibas ,countless 50 bags (empty) ,lights ,air condition system, his sentence was 18 months suspended sentence, didn’t spend one second in jail.

    Reply
  2. Budgieboy

     /  11th August 2015

    Cannot disagree with the known facts which clearly suggests this was well out of proportion and over the top.

    But I’m curious about the home invasion aspect of this story. Home invasions are not all that common and there appears to be no motive disclosed. Home invasions can often be about drugs and money or in some cases money and drugs. Do the Police know more than we do about this situation and would this explain why they were after such a harsh sentence?

    Don’t get me wrong, the courts can (and must) only act on the facts presented and in this case I think they’ve got it wrong but there could be more to this than we currently know.

    Reply
    • Budgie, was thinking along similar lines i.e. what has not been revealed. However I would have thought that any aggravating factors should have been disclosed in the sentencing to explain the judges thinking at arriving sat the handed down sentence…..

      On the face this all seems very inconsistent with similar or even worse offending that has been before the courts….

      Reply
  3. I agree, there could be ‘more to this than meets the eye’ :
    1) was it a FIRST offence ?
    2) was the 24 ounces.. all top Buds or just leaf/bud (aka ‘cabbage’)?
    3) did the judge know that she has 3 children, who are probably also suffering now ?
    4) did the judge realise it was CANNABIS (class C drug) ????

    etc. etc. it all sounds a bit ‘ODD’ to me :/

    Reply
    • Mike C

       /  11th August 2015

      @Zedd

      I think that it was the Van Gaalens who forgot they had children. LOL.

      Reply
      • @MC
        point taken, BUT many who use cannabis don’t see it as an ‘evil insidious narcotic’ but as an alternative to Alcohol or tobacco.
        I grew up in a house where Alcohol was guzzled & chain smoking was the norm. by my parents (1960s) is that really any better ? :/
        Anger/drunkeness & second-hand smoke were the main legacy

        Reply
        • Mike C

           /  11th August 2015

          @Zedd

          I too grew up in the 60’s and 70’s in a household with chain smoking parents and an alcoholic mother … so I totally get what you are saying 🙂

          But my parents would never have had anything illegal on our property that might attract the attention of seedy bad people.

          Whilst I do not smoke cannabis myself, I know plenty of people who do, and I really hope that the laws around marijuana use are overhauled, so that the gangs no longer have a strangle hold on it.

          I still can’t help but think the circumstances surrounding the Van Gaalens seem shrouded in a bit of mystery and there are a few bits of the puzzle missing.

          Reply
  4. Your sentence very biased.hope your going to appeal.

    Reply
  5. Rob

     /  11th August 2015

    That moment when you harvest your two plants and you realise that you now possess 24 times the limit that could see you do serious jail time.

    This is the utter paranoia that goes through every users mind that decides they want to avoid the black market by growing their own. That and the always present danger of a ripoff, a nightmare that in this case has multiplied beyond what most of us would consider to be possible. Violence from the community added to by violence from the state, that is now the reality for Kelly. Loss of her job, her freedom, embarrassment and what will probably be a life long stigma of having done jail time.

    The scenario which Kelly now faces would be unlikely for the hardened criminals or gangsters that she is being compared to. Gangsters protect their interests through violence which Kelly wouldn’t even think of. Gangsters would never take the rap honestly like Kelly did. Gangsters if faced with this kind of charge would lay the blame on a younger acquaintance or lie to protect their innocence. From what I can see from past cases even a gangster would have got a lesser sentence, it seems by fighting her case through a jury trail the courts got heavy.

    The info that Kelly had managed to grow a giant plant spread to a nephew of one of the home invaders through a young family member of Kelly’s. Kaikohe is a small town and it is hard to keep it secret that you are a smoker or how you are acquiring it. Kelly is not a dealer, she wanted to avoid the blackmarket and look after herself with devastating consequences for herself, her partner and children.

    Reply
    • Mike C

       /  11th August 2015

      @Rob

      Kelly and Jasper were clearly not terribly paranoid about being caught for growing the dope, because they made no attempt to hide the two plants down the back of their garden, and they planted them right outside their back door. LOL.

      Reply
      • Rob

         /  11th August 2015

        Hard to hide a plant that needs light. The home invaders didn’t manage to torture the info out of Jasper or find them. The police were obviously a bit more canny. Probably used the dogs. Anyway back to you Mike so you can blame them for it all. The rest of us realise that it was the judge and the law that need to be changed.

        Reply
    • Alan Wilkinson

       /  11th August 2015

      Pretty much what I had guessed, Rob. Ludicrous but typical that the law forces users to make gangsters rich by buying from them. Law enforcement and criminals have a symbiotic relationship. Ordinary folk get destroyed in the middle of it.

      Reply
  6. Mike C

     /  11th August 2015

    @Rob

    You have got me all wrong 🙂

    I don’t have a problem with people using marijuana and I want to see it legalized.

    The only issue I have with this case is the fact that the Police Prosecutor wanted her to serve 3 years, and a Jury of her Peers found her guilty, and the Judge gave a very pretty hefty sentence, in spite of the fact that he could easily made the choice to go much lighter on her.

    It also seems strange to me that she took the fall for her husband, even though both of them were initially charged with growing the marijuana plants.

    There just seems to be a severe dearth of information about this court case, which has made me suspect that there is a lot more to the Van Gaalens situation than we are aware of.

    Reply
    • Rob

       /  12th August 2015

      The reason Kelly took the rap is quite simple. Jasper is not a smoker and it wasn’t his cannabis. This also explains why the home invaders couldn’t beat the information of where the cannabis was hidden as he didn’t know where it was and didn’t want to know. The news is reporting two cannabis plants and a pound of dried material were found which I will correct as there were no plants, they are misreporting that the cannabis came from two plants. I assume the police wanting to know what the home invasion was about did a thorough search.

      As for her hefty sentence, Kelly was a political hopeful that was very popular in the community. She comes across as a lefty that would stick up for the community, a mayoralty bid wouldn’t have been out of the question in the future. One way to deal with possible political opponents from a government that just had its arse kicked and it’s sitting MP resign in disgrace a la Mike Sabin. Speculation on my part but who knows how the judiciary operate in the Far North.

      Reply
      • Alan Wilkinson

         /  12th August 2015

        How come the police were allowed to do a search unless they came with a warrant – unusual if investigating a crime?

        Reply
        • Rob

           /  12th August 2015

          The police would have been all over the place as a violent home invasion had just happened. I think it would have been strange to not allow them onto the scene. I don’t know if Jasper was there at that stage he may have been still at the neighbours or being treated by medical staff.

          Reply
  7. I just wonder.. was she ‘upsetting the balance’ ?

    Black-market dealers, Police-state ‘control’ & ‘corrupt officials’ ie The Status Quo !! :/

    Reply
    • Mike C

       /  12th August 2015

      @Zedd and Rob

      So now you are trying to convince us that this was a big conspiracy by the National Party, to prevent Kelly Van Gaalen from entering Politics. LOL.

      Reply
      • Rob

         /  12th August 2015

        No Mike I am not trying to convince you of a conspiracy, I did say it was speculation on my part.
        What I am trying to do is to stop people pointing the finger at Kelly and Jasper like they were to blame for the huge prison sentence. People were asking why there was a home invasion and I have tried to answer that with the facts that I have.

        Reply
      • Rob

         /  12th August 2015

        There were no plants. The police only found cannabis in a bucket.

        Reply
        • jaspa

           /  13th August 2015

          Even an amateur gardener would be able to confirm there wouldn’t have been any plants outdoors in mid-July! Clearly reporters are no longer expected to have any sort of general knowledge.

          Reply
      • I’m not pointing the finger at the Govt. (specifically).. BUT I do think there are some powerful folks who are benefiting from the Status Quo.
        Try googling : ‘The Emperor wears no clothes’ a book by Jack Herer (RIP) containing evidence of this ‘Grand Conspiracy’ to implement & maintain Cannabis Prohibition ! 😦

        Reply
  8. Mike C

     /  13th August 2015

    @Jaspa and Rob

    What proof is there then, that the bucket of weed came from two plants outside the Van Gaalens back door if there were no plants?

    So all the Police had was the Van Gaalens word for it. Isn’t it also quite feasible that the bucket of cannabis could have come from elsewhere and not from a couple of non-existent plants on the Van Gaalens property?

    How would you two know that the two plants existed … unless you have actually seen them.

    Reply
    • Rob

       /  13th August 2015

      It could have come from ten plants, it could have come from one. Who cares? Kelly gave herself away and her speaking the truth is what probably got her into trouble. That, an asinine judge and a stupid law.

      Reply
      • Mike C

         /  13th August 2015

        @Rob

        And it could be that the Van Gaalens got a bucket of weed in each month or fortnightly from somewhere, and then distributed it all between Kelly and her 20 “close” friends. LOL.

        The last place I lived at in the country before we moved more rural, there was a guy living in a big converted shed next door. A few times a week another guy in a ute would pull up and fetch a hidden key and open up the barn and come out with a lidded bucket similar to a 10 litre paint pail and put it inside the ute and drive off.

        About six months after I first noticed this, the Cops raided the barn 🙂

        Reply
    • jaspa

       /  13th August 2015

      @ Mike,

      There would be no way of knowing. It is simply her word. As Rob said, “speaking the truth is what probably got her into trouble”. She may have thought that being open and honest with the police would help her. They may even have told her this would be the case.

      If she had not told them about supplying others and claimed it was all for herself she may not be in prison now. I believe this is what the judge had the problem with.

      Reply
      • Mike C

         /  13th August 2015

        @Jaspa

        I can’t fault your logic … because the Police can be very tricky 🙂

        But if Kelly was providing cannabis to about 20 people, then that bucket full of weed would only have lasted about two weeks, or a month at the most.

        Why is it that I still feel strongly that there are some important pieces of the puzzle missing?

        Reply
        • Rob

           /  14th August 2015

          Keeping secrets is hard to do in Kaikohe. Change your weed if your a dealer and everyone knows 30 mins later. Being a smoker and scoring the odd tinny in Kaikohe I am aware of the networks available and if you can take my word for it I will tell you that Kelly is not a dealer. I have never managed to score off her and neither have any of my smoking friends. On the surface of it and going by the rumours I have heard over the years Kelly was doing exactly as she said. In past years she hasn’t done as well growing which means sharing your meager supply and toughing it out.

          Kaikohe goes though many dry spells of no cannabis supplies. I am at times a heavy user and I operate as a sound hire/DJ company in this town. I live my life as an open book, I know the local thugs, gangsters and young delinquents. I am no innocent and know the network. There is P for sale more often than cannabis.

          Keep an eye on this story, you will find as the case progresses that more of the story will come out, though at present Kelly and the family are not making any comment on advice of their legal representatives.

          Reply
  9. Mike C

     /  14th August 2015

    @Rob

    Many thanks for your open and honest comment above.

    I do hope that the whole truth about Kellys case is brought to the fore and dealt with as quickly as possible, because I don’t want her in prison, and she might already be out on parole before her Lawyers manage to even get her appeal to Court 😦

    This whole situation seems quite bizarre, and the sooner it gets sorted, the better.

    Reply
  10. Shame on you Judge McDonald – you need to read some case file and the penalties handed out – would you like glasses??

    Reply

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