In Kiwiblog this morning, David Farrar appeared to be running a 9th floor pre-pump for John Banks to resign. But I was rather incredulous when I read the following paragraph…
I don’t think the Judge has actually helped the Government by delaying the decision on entering a conviction. Now that it is the Judge’s role to care about the impact on the Government. I’m just saying I think it would have been cleaner to make the decision as the same time as the guilty verdict.
My bold and italics as my jaw dropped to the floor at the sight of a self-professed political commentator being that blindingly ignorant about the relationship between the courts and the executive. Or being so ignorant of the usual legal processes in NZ that they don’t know what a pre-sentencing report is and what it implies.
What does he think? That the courts even consider what the government wants has any relevance to a judges decision? What a dumb fool.
But since I don’t know of any civics courses in the 23 remaining night classes that his government has deigned to leave running in this country, we’ll just provide the basics that a decent civics program would provide.
There is no provision for the courts to notice anything from parliament apart from the actual legislation, regulations validly promulgated from that, and the intent of the MPs at the time that the legislation was passed. Even then, generally judges take far more notice of the precedences in local and overseas courts on the same or similar cases to fill out the vast holes that most legislation is.
What Justice Wyllie did was ask for a pre-sentencing report before passing sentence. These typically take between 6 and 8 weeks to prepare and be read. So the judgement was rendered on June 5, and the sentencing date is (surprise, surprise) 8 weeks later.
But to round out the night class for David Farrar, political and legal dunce, and much of the rather badly educated media the pre-sentence report consists of..
Pre-sentence Reports
Judges routinely order a pre-sentence report where an offender pleads guilty to, or is convicted of an offence punishable by imprisonment. Pre-sentence reports are prepared by probation officers, who also supervise offenders living in the community after receiving community-based sentences or after their release from prison.
Pre-sentence reports contain information about:
- The offender’s personal background and family (whanau) circumstances;
- The lifestyle and other factors which are considered to have contributed to them committing the offence;
- Recommendations relating to courses of training or treatment which might assist the rehabilitation of the offender;
- An assessment of the risk of further offending;
- A recommendation as to the appropriate penalty, including proposed terms and conditions for the offender’s supervision, training and treatment within the community whether immediately or upon release from prison.
A range of programmes designed to assist offenders is available. Straight Thinking is a programme aimed at promoting life skills needed to avoid further offending and STOP is a programme designed to address the causes of violence.
Judges may also ask for psychiatric and psychological reports, which are commonly obtained for offenders who have mental health and/or drug or alcohol addiction problems.
It doesn’t appear likely that the court will be that likely to look at a discharge without conviction. See Andrew Geddis and Occassionally erudite for the why.
Fourth, it is true that Banks only has to leave Parliament if he gets convicted of the offence he is guilty of (conviction and guilt are not the same thing). But I really, really hope he doesn’t get discharged without conviction – New Zealand has a terrible record of pursuing and punishing electoral offences (the police still haven’t actioned a bunch of complaints from the last election campaign!), and so to (effectively) let off an MP for breaching electoral law would reinforce the message that these sorts of rules really don’t matter.
Occasionally erudite: John Banks – A criminal, but not yet convicted
Will Mr Banks be successful in his application for a discharge without conviction? Probably not, but what would I know? I was fairly certain he wouldn’t be found guilty in the first place! At least I’m in good company there though, with Professor Geddis…
Mr Banks would have to show that the consequences of a conviction would outweigh the gravity of the offending. I don’t know what consequences Mr Banks intends to put before the Court on 1 August, but to my mind they’d have to be pretty damned serious to outweigh the gravity of attempting to undermine the transparency of our local government democracy. Given that a Pre-sentence Report has been directed that includes a Home Detention appendix, the Court is signalling that it’s relatively serious offending.
Fortunately the rest of David Farrar’s advice from on high (9th floor of the beehive?) is of a better standard.
However politically I think the honourable thing to do would be to accept that a guilty verdict has been rendered, and to resign from the House of Representatives before sentencing and the decision on a discharge. Not doing so would be a significant distraction for the Government, which should be talking about the economy, better schools, more operations, welfare reform etc, rather than having to be defensive on an MP remaining in Parliament after he has been found guilty of an offence which would result in a loss of his seat once if a conviction is entered.
Indeed. This is a pretty accurate statement about why for the country it would be preferable for John Banks to stay in parliament. Especially considering the actions of John Key in avoiding looking at the evidence of a MP deliberately breaking electoral laws. Or that of the police not making a charge when they clearly had enough for a conviction.
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