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?