Many examples of drug sentencing inconsistency

A number of examples have emerged of drug sentences that contrast with the two year prison sentence imposed on Kelly van Gaalen.

Ashburton Guardian 27 June 2015:

Cannabis sentencing draws criticism

A judge had little option other than discharging an Israeli couple caught with more than 6kg of dried cannabis, a legal expert says.

Israeli husband and wife Daniel and Hadas Surdri pleaded guilty to cultivating charges in the Ashburton District Court on Monday.

Judge Noel Welsh was persuaded by their lawyer Bevan Coombes to discharge them without conviction in return for a $2000 donation to the Salvation Army.

A police raid on the couple’s property on June 12 uncovered evidence of 54 harvested plants, a master plant – used to take propagation cuttings, and more than six kilograms of dried cannabis – the product of a sophisticated indoor growing operation.

Van Gaalen was sentenced to two years prison for possession of two plants. The disparity between these two sentences is alarming.

Meth-using police prosecutor fined $450

A police prosecutor used methamphetamine at sex parties, blogged about it, and posted videos of himself injecting the drug on the internet.

Brent William Thompson, 49, worked as a prosecutor in the Auckland District Court while based at Auckland Central Police Station.

He appeared in the Waitakere District Court today for sentencing after pleading guilty to possessing and using methamphetamine and using cannabis.

Judge Taumanu declined the discharge without conviction but said he had been persuaded that the case was a “tragedy” that did not require a “substantially punitive outcome”.

Thompson was convicted and fined $450.

A candidate from the recent Northland by-election:

Kelly van Gaalen supporters want bail for cannabis sentence

Legalise Cannabis Party member Maki Herbert was charged with cultivation for supply of 153 plants.

She was sentenced to 12 months home detention and 12 months post sentencing on July 4.

Herbert says the disparity in her and Van Gaalen’s sentences is “absolutely disgusting”.

“I just can’t believe she got what she got,” Herbert says.

“There’s got to be a balance in the sentencing process.

In a comment at The Daily Blog (on the post Mother of 3 jailed for 2 years – The madness of NZs cannabis laws) Rosemary McDonald details a number of drug sentences:

http://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11107578

“Judge praises dealer for turning his life around”

http://www.stuff.co.nz/taranaki-daily-news/68901088/dope-dealing-new-plymouth-mum-sentenced

“A mother of two caught dealing cannabis with her partner has escaped prison.”

http://www.stuff.co.nz/southland-times/news/63291741/British-guest-sentenced-for-drug-dealing

“Nevertheless, to ensure parity of sentencing, home detention was an appropriate sentence, he said.

Discharge without conviction

Dean Wentworth Shaw, 45, winemaker, of Cromwell, was granted a discharge without conviction for possessing LSD and cannabis on July 24.”

http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10853070

“Drug-dealing father spared jail sentence”

http://www.newstalkzb.co.nz/news/crime/cannabis-dealing-lawyer-sentenced/

“A lawyer has been ordered not to practise law for three years after possessing and selling cannabis.”

http://www.odt.co.nz/news/queenstown-lakes/332554/cannabis-dealer-jailed-16-months

“Judge Turner said he would have sentenced him to home detention had an appropriate address been available.”

http://www.greystar.co.nz/content/hairdresser-admits-drug-dealing

“A Greymouth hairdresser who admitted a “tail-end Charlie’’ role in a West Coast drug dealing operation today avoided a jail sentence.”

http://webcache.googleusercontent.com/search?q=cache:4gPD8nbVYJIJ:tvnz.co.nz/national-news/drug-dealing-pharmacist-emigrated-syria-gets-struck-off-6315401+&cd=25&hl=en&ct=clnk&gl=nz

“caught with morphine, cannabis and ritalin tablets. a toxic chemical smell coming from his apartment. He was sentenced in May 2014 to 10 months’ home detention.”

http://www.sunlive.co.nz/news/54743-drug-dealing-pensioner-sentenced.html

“A 65-year-old pensioner caught running a commercial cannabis operation with $108,000 in cannabis plants has been sentenced to nine months home detention. ”

http://www.stuff.co.nz/national/crime/5638309/Seized-drug-house-to-be-auctioned

“The estimated street value of the cannabis was between $32,000 and $41,000.

In 2011, Tittleton was sentenced to forfeit 50 per cent of the value of his home, in the first time the Criminal Proceeds (Recovery) Act 2009 had been used to seize a house in Marlborough.”

http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11441851

“Man convicted of dealing P avoids prison time”

Compared to:

Kaikohe mum hit by jail term

A leading figure in Kaikohe’s arts and business communities has been jailed for two years after being found guilty of possession of cannabis for supply.

Judge John McDonald told the court that van Gaalen’s husband had been the victim of a violent home invasion by three armed men on July 14 last year. Mr van Gaalen, who was home alone, managed to escape and raise the alarm.

However, when police arrived they discovered a bucket of dried cannabis and more in a snaplock bag.

In total it weighed 684g.

Defence lawyer Doug Blaikie said he had been flooded with unsolicited references testifying to her good character and work in the community. In total 32 references had been provided by a range of people, including a former mayor, a principal and a pastor.

Crown prosecutor Catherine Gisler had called for three years, saying deterrence was important. Mr Blaikie had asked for a term of community detention.

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.

To say this sentencing has troubled me is an understatement, but for reasons other than what Judge McDonald has given.

Leave a comment

24 Comments

  1. Mark Bond

     /  11th August 2015

    Reblogged this on e-Roll Call Magazine.

    Reply
  2. Rosemary McDonald

     /  11th August 2015

    Rosemary “McLeod”????

    Reply
  3. Mike C

     /  11th August 2015

    So, it is quite clear that Judges have tons of leeway and room to move when it comes to the sentencing of drug dealers and users.

    The difference between the Ashburton and Kaikohe sentences could not have been more “Chalk and Cheese” if they tried !!!

    There surely must have been far more to Kelly Van Gaalens case than met the public eye, because it doesn’t make any sense at all to me, especially since the Kaikohe Judge said he felt very troubled about having to dish out such a harsh punishment.

    If Kellys case wasn’t much different to the one in Ashburton, then she deserved home detention at the very most.

    The subject of legalization and commercial sale of Marijuana needs to get sorted out as soon as possible.

    Reply
  4. This does highlight the inconsistency that occurs.. BUT I also think that the individual judge’s opinions on ‘DRUGS’ come into it too. You hear all kinds of stories; from dealers being discharged without conviction to people convicted for possession, getting jail time.

    It is time that the Govt. sat up & took notice.. rather than just ‘ignoring it.. hoping it will go away.. ho hum’ BUT I’m not holding my breath, they seem to just bury their heads in the sand.. eg: effectively ignoring the Law Comm. review recommendations & several recent polls that overwhelming show that ‘Joe & Jo-Kiwi’ DO want to see Drug law reform : Cannabis Decriminalisation (at least).. alongside most other OECD countries, moving this way. The ‘Misuse of Drugs act 1975’ is past its use-by date (by at least 15 years)

    As long as there is an official policy of ‘WAR on DRUGS’ this will go on & on & on… Its time to call the ‘Armistice day !’ 😦

    “Free Kelly Van Gaalen” (home detention ?)

    “what do we want ? LAW REFORM.. when do we want it ? NOW !!!” :/

    Reply
  5. Alan Wilkinson

     /  11th August 2015

    It’s both sad and repugnant when bad law destroys people’s lives pointlessly. I hate it.

    Reply
    • robby

       /  11th August 2015

      It is beyond belief that she gets such an excessive sentence for a victimless crime when burglars can expect far less for violating a strangers’ home.

      Reply
    • Bill

       /  11th August 2015

      I couldn’t agree more Alan, but this prison situation I believe is only the tip of the problem and after working in and along side industries like mining, construction, fishing, I can honestly say testing for Cannabis use in employee’s, not for intoxication ,but break down products sometimes lasting many weeks has rapidly increased Meth use as it is out of a persons system in detectable levels sometime in as little as 24 hours.Meth is now the drug of choice in drug tested industries,this is certainly yet another unwanted consequence of Cannabis prohibition.

      Reply
  6. kittycatkin

     /  11th August 2015

    I agree, though, that there must be more than just this in the Van Gaalen case.

    Reply
  7. Mike C

     /  11th August 2015

    I wonder if the reason Judge McDonald was “troubled” giving such a harsh sentencing, was because he knew that it was actually the husband who should have been on the receiving end of the two years in prison.

    Just some food for thought 🙂

    Reply
    • Bill

       /  11th August 2015

      I suppose this is a possible explanation for the judges comments, but I would like to think the outrage for this type of harsh sentencing transcends gender, as the circumstances of this case as we know it, doesn’t warrant a prison sentence.
      This does beg the question whether people would feel as much sympathy for a father of three being sent to prison for two years for growing two plants, I certainly hope so.

      Reply
      • jaspa

         /  11th August 2015

        I don’t know more than what I have read here, but I would guess that (if they were indeed both smokers) they would have decided, perhaps upon legal advice, that one of them would claim responsibility. The decision as to which one may have come down to financial reasons, or indeed the hope that a judge would look more favourably on a mother. Yes, one would hope that wouldn’t be the case and in this case it wasn’t, but they might have thought it would be worth a try.

        Reply
    • Rob

       /  12th August 2015

      Repeating what I said on the other page, Jasper isn’t a smoker. It wasn’t his to take responsibility for. We’ll have to think of another reason why the judge did what he did.

      Reply
      • Mike C

         /  12th August 2015

        @Rob

        The marijuana plants and the bucket of weed were both found on Jaspers property. There is no way that Jasper didn’t know that the plants and weed weren’t there.

        Just because Jasper isn’t a smoker, doesn’t mean that he isn’t culpable.

        Reply
        • Rob

           /  12th August 2015

          There were no plants found on their property. He may well have known that she grew them but the bust happened post harvest.

          Reply
  8. Mike C

     /  12th August 2015

    @Jaspa

    The Van Gaalens made three decisions after their arrests that may very well had a major effect on the Judges sentencing decision.

    Firstly, shortly after their arrest, they chose to have Kelly take responsibility for the marijuana, when it was likely that the Police knew they were both involved.

    Secondly, they chose to plead not guilty, when it was quite obvious that they were.

    Thirdly, they opted for a Jury Trial, which costs the Tax-Payer a lot of money.

    The Courts frown down upon people dicking the Justice System around, with Not Guilty pleas, and the cost of Jury Trials and time delays.

    I feel sorry for Kelly and her children, but if her and Jasper had both just pleaded guilty from the start, and as a result, had been processed through the Justice more quickly, then they probably would have both got off with less than a hundred hours Community Service or a few months Home Detention at the very most.

    Reply
    • jaspa

       /  12th August 2015

      So it was a punishment for dicking the taxpayer? That still doesn’t seem right, when murderous pedo rapists can get appeal after appeal on the taxpayer’s dime

      Reply
      • Mike C

         /  12th August 2015

        @Jaspa

        That attitude toward the Justice System doesn’t tend to work for murderous pedo rapists either.

        Reply
    • Rob

       /  12th August 2015

      She was charged with possessing cannabis for supply. She admitted sharing but the state sees that as dealing, the only way to dispute this is to plead not guilty. Pleading guilty to supply is like shouting out hey I am a drug dealer.

      Reply
  9. “Three Kaikohe men were subsequently sent to prison for the attack”
    – NZ Herald NZ should take a leaf out of liberal cannabis law

    Reply

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