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July 7, 2008 | by  | in Features | [ssba]

Legal Discrimination

Students are indulged by the Police and the Court in a way that young people employed in low-paying work or on the benefit are not. A student offender is less likely to be convicted of the same minor crime as a non-student offender, just as a Pakeha offender is less likely to be convicted of the same minor crime as a Maori offender. Our legal system contains a number of tools, such as diversion and discharge without conviction, which allow us to help offenders put minor mistakes behind them. But a large body of research and experience shows that these tools are applied unfairly. And since this unfairness is to our benefit, we don’t really bother to question it.

Recently a Salienteer’s bro was caught driving some 50km over the speed limit with a friend. He was fined $800, having told the Court about his job at a petrol station, but the fine was dropped to $400 when he showed the judge that he was also studying. Students are not let off scot-free when they get up to shenanigans, but judges are quite openly willing to apply lesser penalties when they believe that a person has a future. This means that sentences are based on the perceived value of the offender, as well as the severity of the crime. Over the last few decades the police have also developed a practice of staying away from campuses, allowing students to tag, smoke pot and loiter without fear of arrest – although this policy has come under threat recently, especially down south.

After last year’s Undie 500 riots sixteen revelers, including Canterbury and Otago students, were charged with rioting (maximum penalty two years imprisonment), and both the Police and University’s security guards have stepped up their presence in North Dunedin. However, the sixteen rioting charges were all eventually downgraded to disorderly conduct (maximum penalty three months imprisonment) and obstruction, and while many of the total 69 people arrested have been fined and convicted, none have been imprisoned. Given that these guys were out to have some (admittedly destructive) fun, rather than maliciously attack anyone, and given that many are still stuck with a permanent mark on their record, affecting future opportunities, their sentencing seems fair. But I put it to you that if a couple of hundred youths set fire to cars on the streets of Porirua and assaulted firemen, the rioting charges would probably not have been dropped, and at the very least those involved would spend time in jail.

Keeping Your Record Clean: Diversion

There are three ways the legal system can leave you with a clear record when you commit an offence. First, the police can let you off with a warning when they catch you. Second, they can apprehend you but give you a diversion if it is your first offence, allowing you to avoid the possibility of prosecution provided you fulfill whatever requirements they lay down. While the official Police Adult Diversion Scheme only applies to offenders over 17, an almost identical policy also known as police diversion is also applied to younger offenders. Third, even if the police do not grant you a diversion, the sentencing judge may discharge you without conviction under Section 106 of the Sentencing Act 2002. The judge may only grant a discharge without conviction if they are “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.” Such a discharge can be applied to any offence that does not contain a minimum penalty.

All three paths to avoiding conviction are vulnerable to bias on the part of police and the judiciary. Many young people are under the impression that diversion is the only way to avoid conviction after admitting to a convictable crime, that you can only get a diversion once if you plead guilty and that from then on you will always be convicted – unaware of the existence of discharge without conviction. Furthermore, although the Police Adult Diversion Scheme was formally introduced in 1988, it has never been codified into statute law, and can be applied whenever a judge and prosecutor feel it should be.

A 1996 Ministry of Justice report showed that of the estimated 10,430 people diverted that year, 42% were for property crimes such as theft and vandalism, 7% were for cannabis possession, 6% were other drug offences, 44% were for other minor crimes such as disorderly behaviour and minor assault, and less than 1% were for “serious offences against the person.” However, this less than one per cent still totaled 98 people given diversion for serious assaults in one year. Official police policy states that diversion should only rarely be applied to sexual or domestic violence cases, but does not entirely rule diversion out. While this flexibility is necessary to allow judges to take exceptional circumstances into account, it also gives them scope to indulge their biases, whether they are aware of these biases or not.

The Police Adult Diversion Scheme policy states that diversion is intended to rehabilitate offenders and make reparation to victims by asking offenders to apologise to victims and repay or repair any damage done in exchange for a clean record. One of the stated aims is the “improved service delivery to Maori and partnerships with Maori communities and service providers.” However, the Canterbury Health and Disability Study (CHDS) has shown that Maori are still convicted at a higher rate than non-Maori who commit the same crimes. The CHDS is a longitudinal study of a birth cohort of 1,265 children born in Christchurch in 1977, which recorded details on all aspects of their lives for 21 years. In one report, the CHDS discovered that Maori are between 2.1 and 2.6 times more likely to be convicted than non-Maori with the same selfreported history of offending. That is, if a Maori and a Pakeha with the same record commit the same offence, the Maori is more than twice as likely to be convicted. In another report, the CHDS discovered that Maori are approximately 3.8 times more likely to be convicted of cannabis use than Pakeha with the same record of cannabis use and other offending. Furthermore, the report showed that males are ten times more likely to be convicted for cannabis use as females with the same use and offending record.

Addressing Discrimination

That diversion is applied more often to students than nonstudents may be reasonable. Senior Law Lecturer Grant Morris agrees that although there is a perceived bias in the way diversion and other aspects of sentencing are handed out, the diversion policy is still a positive step. Since it is partly intended to safeguard an offender’s future, I suppose it makes sense to apply diversion to those studying to improve themselves. But is it fair to punish people with a permanent record because of the fact that they are not working toward their future, given that we know a conviction will only make any such attempts even harder? And even if we accept that students are indulged more than non-students, surely we cannot accept the same form of discrimination when it is based upon race or gender. When I asked Law Lecturer Nessa Lynch if it was unfair for so many students to be let off via diversion, she pointed out that diversion does not mean being “let off” and can still be quite a serious penalty for young offenders, as they will be expected to adhere to whatever behavioural requirements the prosecution demands in return for their clean record. Lynch suggested that the way to address any discrimination in the scheme would be to extend it, so that except where the circumstances demand otherwise, everyone is diverted for their first minor offence. This suggestion was also made by the CDHS.

A 2005 Law Commission report suggested that the government discontinue the diversion scheme and replace it with police caution, in order to remove the courts from the process to free up judges’ time. However, the Government responded that the involvement of the courts “provides a number of safeguards for accused persons.” The Government response notes the Police agree “there are inconsistencies in the way in which diversion operates in different parts of the country” and that therefore diversion should be more rather than less formalised. If both the CDHS and Lynch are correct, and the way to make diversion more fair is to enact a policy whereby all first-time minor offences receive diversion, then presumably the way forward is to codify this into law. But with the terror of youth tagging dominating so much contemporary political debate, putting such a policy into place may simply not be expedient at the present time.

Perhaps most tragic of all is the fact that, because students pay lighter penalties than many others, we are sheltered from many of the negative consequences of our laws. If the predominantly white student population of Kelburn were arrested for our shenanigans at the same rate as the poorer, predominantly brown youth of other areas, perhaps our social consciences would be more likely to prick up, and we would speak out about the laws we face. But since we are sheltered from the full force of the law, it’s easier for us just to sit on our hands and twiddle our thumbs.


About the Author ()

Tristan Egarr edited in 2008. He threw a chair once.

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