Equality – true in theory, but debatable in practice

We are New Zealanders. We live in an egalitarian society and the justice served in one court is equal to the justice served in any other.  From Invercargill to Kaitaia - it’s all the same. Right?

Wrong, says Victoria Letele, criminal barrister and Manakau District Court Youth Advocate.

Often the people I represent do not share equivalent justice.  Their life experience – who they are, where they come from, shuts them out.

For example, she says, an application for discharge without conviction pursuant to Section 106 of the Sentencing Act in the District Courts is less likely to be successful, depending on the presiding Judge; their assessment and subsequent application of the test set out in Section 107 of the Act to the case. Victoria says she’s directly experienced that frustration and has seen it played out elsewhere.  There are of course, she says, some successful applications but the major concern she has, is the lack of a demonstrably consistent, transparent and objective means of assessment. That, she says, adds additional stress to an already difficult situation.

(Briefly: Section 106 of the Sentencing Act 2002 recognises a criminal conviction can have far reaching consequences on career development and opportunities, travel options, personal and business reputation. Applications, submissions oral and written, succeed if the Judge is satisfied they meet the requirements laid out in Section 107, i.e. the long term effect considerably outweighs the ‘justice’ of a conviction.) 

Why, because it’s pretty hard to pull together a case for someone who has few or no educational qualifications, is without a permanent address, whose employment record is at best patchy or more frequently, non-existent, whose travel options are whether or not to take the bus from the suburb into town once a week, and any reputation is a family concern. Mix that with the anomalies of different Judges’ approaches to applications and the task becomes harder still.

Everybody is equal but some are more equal than others

In Victoria’s opinion when this piece of law was crafted whom it would apply to, was not carefully considered.  The eligibility criteria, she says, are based on assumptions.  Whilst they are ideal, and it would be great if they were true, reality presents an entirely different picture. Who you are, where you are from, what you do and what you intend to do, counts. According to current criteria, it seems the law is implying – the less you have, the less likely you are to receive any exemption. Quite simply, you are not worth making an effort for. Instead you will receive more of the same – reinforcing what you already know – that you are expendable.

Reform wanted

If Victoria had her way that piece of law would be reformed. The criteria in Section 106 would be re-examined to better reflect those most likely to be affected by it and the requirement or test outlined in Section 107 refined to eliminate inconsistencies in application. Then perhaps, she says, equality, at least in this area, would become more than a nice idea.

Find out more

Manakau Counties 2012 population profile - a PDF providing context

Cases highlighting inconsistent application

1. Editorial, Stuff: Case shows it's not a level playing field
2. WhaleOil blog post: Are lawyers  dodgier than politicians? (Check the comments for ongoing links to judgments)

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Related areas of interest:

Youth Justice in New Zealand  -  by Nessa Lynch.
The  first and only book to comprehensively address the law, theory and practice behind the New Zealand youth justice system. This long awaited analysis extensively discusses the principles, legislation and policies governing the operation of the youth justice system, as well as exploring practice and procedure in the distinctive Youth Court jurisdiction. Critiques of recent major reforms are included.