Open letter to Judge Philippa Cunningham

Jan Logie is ranked 9th on the Green Party list.  On current polling, she is a certainty to be an MP after the next election.  Jan has her own blog site, and today she posted an open letter there to Judge Philippa Cunningham, who last week discharged without conviction a man who admitted sexually abusing his daughter:
Judge Philippa Cunningham

Auckland District Court
Fax 09 916 9611

Dear Judge Cunningham,

I am writing to express my dismay and disquiet at your ruling last week.

My heart goes out to the partner and mother who did what we would all hope and expect a mother to do.

Our media in recent years has profiled more family cover ups of child abuse than cases like this. Having worked for women’s refuge in the past and supported a mother and child through the process of laying a complaint of child abuse I have seen first hand the fear and trauma involved in taking a case to court.

In this example the comedian concerned admitted his guilt and while this will certainly have made the process prior to your ruling easier for the family your ruling must have been absolutely devastating.

I am not a proponent of punishment for the sake of punishment but I do believe an essential part of justice is the acknowledgement of a crime and rehabilitation and or restitution.

You reportedly decided the comedian had no paedophilic tendencies I am supposing this is because he was drunk. This suggests that if you’re drunk and your partner doesn’t want sex and you have a child in your bed then anyone might end up conducting sex acts on that child. I would suggest this is not true. How was it he didn’t perform a sex on (attempt to rape) his partner while she slept if he was so drunk he was not accountable for his own actions? He knew it was his daughter and this is not the behaviour of a man with a healthy sexuality.

I believe this judgement sends a harmful message to victims and their families. So few cases of sexual abuse make it to court in this country and even fewer manage to get convictions. Now there is even less incentive to try.

I also believe it sends a message to men that they are less responsible for their actions if they’re socially privileged and drunk.

We need a justice system that we can all have confidence in. Your decision has undermined my faith in justice in this country.

You can’t change this ruling, but at the very least I do hope you reflect on the reaction to your ruling and organise time to talk to some of the agencies working with victims of sexual abuse.

Yours sincerely

Jan Logie

I’m normally pretty cautious about politicians criticising the judiciary, especially when it involves a determination of guilt or innocence. But here we have someone who pleaded guilty to a particularly exploitative and disgusting offence committed while intoxicated against a young child in his care, and appears to have successfully used his intoxication and his status in society as an excuse to avoid conviction.

I’m right with you Jan on this one.

66 Comments Posted

  1. Good on Jan Logie for taking this public stand. This just can’t go away. A person has committed a heinous crime against a child- Judge Philippa Cunningham’s decision is totally unacceptable. Our justice system failed that child and her mother. The community has to fight on their behalf!

  2. Same judge who let Millie go for doing P http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10705495
    and she also couldn’t finish a rape trial, which had to be aborted, because she’d booked a holiday. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10628854
    But all that’s irrelevant.
    Innocent until proven guilty takes on a different meaning when one can’t see the evidence. I can understand name suppression but why are the facts suppressed. Couldn’t the names be changed? The legal system is undermined with so much secrecy.
    In the words of judge Phillipa “He’s a talented New Zealander.
    He makes people laugh and laughter’s a good medicine that we all
    need a lot of.”
    Well that’s that then.

  3. [deleted]

    [frog: Don’t push it, nznative. You are getting very close to having your comments automatically dumped. I share your concerns about the quality of this judicial decision, but if you are not sure if something else involving the Judge concerned is true or not, at least link to a source to substantiate the allegation. For all I know, you could have made it up.]

  4. …… I have heard that judge Philippa Cunningham is [deleted]

    How anyone could agree with Photonz1 who made up a whole bunch of weak possible excuses for this sexual predator and his sickness is beyound me.

    PhotoNz1 is a natianal party troll who always sides with whatever the Nats are doing but even I was rather shocked that he would take the side of a child sex offender, well actually he’s not a child sex ofender because even though he plead guilty the judge would not convict him.

    I must admit my views are a little bit coloured by my knowledge of another child sex offender ( when drunk ) who offended against a friends child and again the justice system worked for the offender who plead down/guilty to ‘assult on a minor ‘ but not ‘sexual assult’.

    These creeps and their lawyers know how to ‘work’ the court system.

    The justice system has never worked for sex offences.

    [deleted – frog: Too far. Defamation is not acceptable here, and particularly dangerous when it relates to a Judge.]

  5. Our whole Legal System is in the ‘Bargain Basement’ section.
    Plead ‘Guilty’ and get a slap on the wrist with a wet Bus Ticket
    Go for Justice and risk years in Prison.

    I’ve seen Prosecutors get the Story so horribly wrong that truth and justice are beyond reach – it’s quite common ime.

    Good Judges have bad days and vice-versum.

    I think they are generally overworked – but then, so are most things,
    including the credibility of ‘justice’ in the Great Nation.

  6. That may or may not be so nznative but I have seen no evidence that this particular judge is a ‘shit’ one, leaving aside the opinions that have been expressed since the ruling. Have you any evidence at all of ‘shit’ judgements from her in the past? Even one similarly contested judgement from her might help to make your claim that she’s a ‘shit’ judge more valid. If not, then we’re left with an odd event with no precedence to guide us. In fact, if her previous record is good, then we’d be in a quandary, wouldn’t we?

  7. You get lots of shit judges greenfly and I respectfully suggest that Judge Philippa Cunningham is one of those ………..

    You do know they are politically shoulder tapped for the job and once in are almost impossible to remove ???.

    Spend more time at courtrooms ………. you’ll see just how bad a lot of them are.

  8. Based on your logic nznative, I should disregard your comment because other commenters here have said things that are wrong.
    Hasn’t Frog cranked up the posting rate!
    So many issues to cover Frog! Well done!

  9. Experienced judge ????????

    Ha, on that basis they are right ??? .

    How about the experienced judge in the Hutt valley who was a child molestor himself ?, was he right? .

    How about the two judges up northland years ago who were both prosecuted for fraud?. One plead guilty and lost his position, the other plead not guilty and beat the charge ……… and is still practising. Which one of those two judges was right ?.

    How about Judge Young who discharged Jules Miklus senior who raped his children for decades on a technicallity ………. was he right ?.

    Judges are lawyers ……….. and I wouldn’t trust them on moral issues .

    Judge Cunningham sounds like a good judge to appear before ………… if your a child sex offender looking for a break. Just say you were pissed and then follow that up with any crap excuse. Try and make her laugh, that could also help you.

    Discharged without conviction FFS

  10. It’s 13 upticks now Suz, as I write this.

    There are only a couple of possibilities for what is going on. The first is an experienced judge has gone insane and done something egregiously erroneous. The second is that everyone discussing this has no idea of the facts of the case.

    My money is on the second explanation.

  11. Peter Dunne along with the Natioanl party are relevant to this topic because they get large “donations” from the booze pushers and this ‘influence’ hinders proper law makeing.

    The drug alcohol causes a its own crime wave and is involved in a high percentage of crimes like sexual assults ( like the one we are discussing ), rapes, murder etc.

    The booze industry ( which is a drug industry ) is escapeing paying its dues and promotes ( push’s) its product at young and all.

    The drug alcohol costs New Zealanders at least $ 3 Billion dollars in the short-fall between the excise and other taxes on booze and the costs that the drug booze causes eg Accidents, Deaths, police, court and prison costs, hospital and health cost etc etc etc.

    John Keys and the Nats ruled out any increase in the tax on booze, or lowering our high blood alcohol limit which would have saved lives and injurys.

    At what point do we acknowledge that booze money ( drug money ) is influencing politics and at what point do we call it corruption ??.

    The way the booze industry is allowed to operate is a good example of hows not to legalise a drug.

    They should be banned from dishing out politcal donations and ‘perks’.

    Finally back to our child sex offender who got a slap on the wrist. His excuse of being asleep is rubbish.

    His previous episodes of getting pissed and doing strange things show ” Alcohol blackout”, which is where you’ve consumed so much of the drug you cant remember what you did.

    To have repeated alcohol blackouts show the comedian is a drug abuser and the drug he abuses is alcohol.

    If he’s like most alcohol abusers he’ll be in denial and blameing all sorts of things.

    And alcohol can be a very very hard drug to give up ………… its everywhere and its pushed.

    Suffer the children.

  12. I’ve seldom seen a 12 up tick as Inv’s first comment on this thread has received…many of us are baffled in regards to the Judges decision…the repercussions for the victim are horrendous…and I despair of others in similar situations who are now deterred from reporting such heinous acts.

  13. This is a fascinating discussion, and one I find myself agreeing with ‘da fly’, I especially liked his reference to the “sting em up” desire of so many based on so little.

    We have seen this desire emerge from both sides of the ‘spectrum’ in recent times and this case appears to be no different.

  14. So Inv2 – the judge gave too much weight to the defendant’s circumstances.
    Why do you think she did that?
    It seems odd. Has she given too much weight to the circumstances of other defendants that have stood before her?
    Does she have a bias toward comedians?
    Have you any idea at all as to why she’s made this ‘wrongly-weighted’ call?
    This is the question I’ve been putting to you all afternoon. Maybe I was unclear in the expression. Still, there it is.

  15. @ Greenfly; my personal belief is that the offender’s circumstances have been given too much weight by the learned District Court judge. I’m not a lawyer, so I cannot comment on matters of law. That’s why I hope that the Solicitor General appeals the decision; so that whether or not the judge’s decision was made on solid legal grounds can be tested. If a higher court endorses her decision, I will happily concede defeat.

    But I am competent to comment on what I believe is an unjust decision. Why should there NOT be effects of a conviction? The Comedian ADMITTED committing an indecent act on his own daughter, which was witnessed by his partner. Why should he be exempted from any legal consequences because he happens to be able to make people laugh (that’s debatable too; have you ever seen any of his material?)? If he was that worried about his career, he shouldn’t have got off his face to the point where he committed an indecent act on his own daughter. He is the author of his own misfortune, and I have little sympathy for him. OTOH, I have the deepest sympathy for his former partner and for their daughter.

  16. You say, “Judge Phillippa Cunningham ruled that the effects of a conviction “outweighed the gravity of the offending””
    and clearly you don’t accept that her judgement here was sound.
    Are you certain that you Inv2, have fully grasped, a. the effects of a conviction, and b. the ‘gravity of the offending’.
    In criticising the judge’s decision you must believe you have a better understanding of both, than she does.
    I’m still keen to know what reasons you give for what you believe to be the judge’s wrong decision. I’ve waited patiently for your response and have repeated my question very politely more than twice now 🙂

  17. @ Greenfly; no; I expressed my disappointment with this outcome almost as soon as it was made public. That the range of organisations mentioned have subsequently taken a similar view is comforting; it validates the view I formed immediately. Here’s what I said in a post timed at 3.25pm last Friday, which I stand by completely:

    His counsel, Marie Dhyrberg asked for and won a discharge without conviction, despite the fact that the indecent act was admistted by the defendant, who has permanent name supression, and witnessed by the girl’s mother, his former partner. Where is the justice in this?

    It seems that the main reason for the discharge being granted was the possible effects of a conviction on the defendant’s career. What about the trauma that the victim and her mother suffered; does that not count for anything? Apparently not; Judge Phillippa Cunningham ruled that the effects of a conviction “outweighed the gravity of the offending”.

    We reckon that is absurd. Could there be any offence more grave than a parent, boozed to the eyeballs, committing an indecent act on his own child? We don’t think so, and that is why we are so outraged.

    We thought long and hard before posting this, but we want to register our outrage at this decision. A child has been violated, a mother traumatised, and the offender walks. It sickens and angers us.

    http://keepingstock.blogspot.com/2011/09/crime-porn.html

  18. So you hold the views you do about this case because of what others (Barnados, Sensible Sentencing Trust, Frog etc) have said
    But you’ve offered no answer to my question. Here it is again, italicised:
    Have you any thoughts as to why the judge has made what you clearly believe, is a mistake in her decision?
    Frog opines that the defendants drunkeness, and his societal status are the reasons for his non-conviction. Do you think that also? That the judge ‘let him off’ because, a. the defendant was drunk, and/or b. the defendant had status in society?

  19. @ Greenfly – yes, I do believe that the judge erred. Obviously, I am not qualified to comment on matters of law, nor do I have the expertise in matters of sexual abuse that organisations such as ECPAT, Barnardos and even the Sensible Sentencing Trust have. All those organisations have been critical of Judge Cunningham’s decision for reasons similar to those I have outlined; that he decision was erroneously weighted in favour of the offender rather than the victim.

    And I’m right with frog when (s)he says

    I’m normally pretty cautious about politicians criticising the judiciary, especially when it involves a determination of guilt or innocence. But here we have someone who pleaded guilty to a particularly exploitative and disgusting offence committed while intoxicated against a young child in his care, and appears to have successfully used his intoxication and his status in society as an excuse to avoid conviction.

    What part of that do you disagree with?

  20. Inv2 – I have to assume that you believe the was judge qualified to make a decision in this case, that she heard all of the evidence (which, it has to be said, you have not) and that the judge favoured the defendant when making her decision, because of the effect she believed a conviction would have on his career. Am I correct so far?
    Have you any thoughts as to why the judge has made what you clearly believe, is a mistake in her decision? What possessed her, do you think? Should she be censured for incompetence? Was she drunk? Was pressure put on her by some other agency?
    What’s behind it all do you think?

  21. Obviously Greenfly, I disagree. As I noted in my comment above, the person who best knows what happened is the woman who contacted the police; The Comedian’s partner. Her statement was compelling enough to see him charged with a serious sexual assault, later changed to a slightly less serious offence on the promise of a guilty plea, and with a pre-sentence indication from the judge that he would not be imprisoned. That aspect alone is of some concern. However what concerns and angers me the most is that so much weight has been given to the effects of a conviction on the offender, and that so little weight has been given to the effects of a discharge without conviction on the complainant and her daughter. Please don’t forget that they are the victims here; not the bloke who drank so much that he lost the ability to discern between an adult woman and a four-year-old girl wearing a nappy. That may sound blunt, but that is what it comes down to.

  22. Inv2 – here on Frogblog, we’ve been asking that questions for years and years – how is Peter Dunne relevant to … anything at all! So I guess you’re one of us now and therefore ripe for debating with. What have you got? You are making bold claims about the ‘comedian’ case, and yet very little detail has been released – not enough, in my opinion, to make a sensible decision on why the judge ruled the way she did.

  23. Oh Greenfly; all I did was ask how Peter Dunne was relevant to the subject-matter of this post. I thought you only talked about irrelevant and extraneous things on Other People’s Blogs 🙂

  24. I enjoy reading these blogs.. but not the ‘bitchiness’ & insults that sometimes dominate them.. come on people.
    Kia-ora

    [frog: Well said, zedd. At least no-one’s made comparisons with Hitler or Stalin on this thread – yet!]

  25. Can’t really be bothered debating with someone who at the outset accuses me of being a troll, Inv2, but regarding your comment@9:05, I think you are not wise to base your strong views on this issue, on implication – “That implies that” – I so often see commentators (I’ll not say ‘trolls’) from your thin blue end of the spectrum, basing their hot-headed claims on ‘implications’ that they take, expand upon by mixing in some indignation and personalised emotion, then present as a powerful argument.
    As I believe you are doing here.
    I’m encouraged to see that you’ve ‘blog-rolled’ Frogblog. What took you so long?

  26. @ greenfly – I don’t know whether or not my 7am comment had survived moderation before you added your bit.

    [frog: You are not in auto-moderation IV2. I suspect your comments are ending up in the moderation queue because you are not logged in.]

    In any event, there are only two people who really know what happened on the night in question; the complainant (The Comedian’s partner) and possibly the victim. On the basis of the information provided by the complainant, The Comedian was arrested and charged with having an unlawful sexual connection with a person under the age of 12. That implies that there was a strong sexual element to the incident. In March, he pleaded guilty to a reduced charge of committing an indecent act on a person under the age of 12 years after the prosecution and defence agreed to the lesser charge to avoid the trauma of a trial for the complainant.

    There appears to be no one definition of the term “indecent act”, but that fact that the Crimes Act s132(3) provides for a maximum sentence of ten years imprisonment suggests that it relates to serious offending. That the police originally charged The Comedian with sexual violation based on the statement of the most credible witness is indicative that there was indeed a sexual overtone to the incident, especially with the evidence given that the partner had declined sex when The Comedian came home. That raises an issue of consent as well.

    I repeat my inital comment. I hope that the Solicitor-General is strongly considering an appeal against what I personally believe is a decision made with far too much weight given to the offender, and far too little to the victims.

    And Greenfly; what role has Peter Dunne played in this case? Sheesh; you even troll on your own party’s blog!

  27. “I’ll say once more imagine if some man did that to YOUR 4 year old daughter.”

    In my opinion, it’s when people do this; personalise what they imagine happened and respond with the emotion that results from such a process, that wrong-decision making occurs. This is something that I see happening very often on blogs like Farrar’s, Slaters and Inventory2’s.
    Over-heated heads.

  28. @ nznative; I am a not a member of the National Party, but I will be voting National this election, and I blog supportively towards the Nats. But if you go back to the top of this thread, you will see that my opening comment is supportive of Jan’s post, and I have posted a congratulatory note on her blog as well.

    This is not a matter of politics, and you do yourself an injustice applying such a broad brush in your comments re centre-right parties and their supporters. It is an issue of justice for the victims of crime, and on this occasion, the right and the left seem to have a degree of unity.

    There are plenty of issues for you to get tribal over; may I respectfully suggest that this is not one of them.

    frog: Agreed, IV2. I’ll be the one to decide if commenters are trolling. In this instance, I think there is a valid debate going on that cuts across political affiliations.]

  29. greenfly says “Disturbing. I’m still with photonz1”

    Don’t be disturbed. I find I agree with some ideas from ACT, and some ideas from the Greens.

    But this has more to do wtth simple common sense. Anybody who is accusing radically more than the prosecution can be reasonable dismissed as people on a witch hunt ignoring the evidence.

    Like many crimes, it has a lot to do with intent, and so the question is how much intent someone has when they are in a deep sleep (the prosecution said the comedian was in a “deep sleep” at the time).

    It’s obvious from the prosecution and judge that this is not a straight forward case.

  30. Well lets put it this way, if I was seperated from my wife and her new partner did that to my 4 year old daughter I’d think casteration was to less a punishment.

    It was only in the 1980’s that the law was changed ( and not by the nats ) so that a husband could be charged with rapeing his wife.

    New Zealand has shocking rates of child abuse and sexual abuse.

    Our police force almost promoted a sexual abuser to the very top post not that long ago.

    Its time people and judges stopped makeing excuses and minimising these crimes.

    A rape committed while pissed is still rape.

    Not that you’d know it from all the drug alcohol apologists.

    I’ll say once more imagine if some man did that to YOUR 4 year old daughter.

    Judge Cunningham has a lawyers sense of justice.

  31. photonz1 I’ve read what you wrote and all I can see is national party troll minimising a sexual assult committed on a four year old child by an adult under the influence of the drug alcohol.

    You being a National party troll do a very good job at smearing yourself.

    You disgust me.

    And I’ll say again that the mystry pervert comedian should have a sexual assult conviction against a child recorded against him at the very very least.

    And he along with a lot of other new zealanders should be banned from ever touching the drug alcohol again.

    That drug, our No 1 drug, is pushed like no other and its producers and suppliers have paid for and brought protection from our politicians ……… especially the national party.

    The result of this drug money corrupting parliament is a violent crime rate ( includeing sexal assults on children ) which is far higher than it should or has to be ……..

    And it should also be noted that the political partys or politicians which are most friendly towards the drug booze are also the one most strongly for prohibition of cannabis ………… eg Peter Dunne and the National party.

    Which is just one example of why National are just ‘plain evil ‘ and Peter Dunne is a rat .

  32. nznative – it had been a mature discussion on why the prosecution and judge were so unusually lenient (perhaps because what the prosecution alleged happened is not the same as what others have alleged).

    If you can read english, I haven’t defended what he did.

    I suppose it was only a matter of time before some immature dickhead used the discussion to try to smear someone.

  33. Why am not surprised that photonz1 should stick up for a person under the influence of the drug alcohol who was getting his 4 year old daughter warmed up for sex ??????

    Why were her pant bottems off again photonz1?

    you truelly are sick.

    The other sick person in this story ….. the comedian should have a sexual assult conviction against him ………. and be banned from ever taking the drug alcohol for the rest of his life.

    Because it seems he can not controll his pedophile nature when he takes the drug alcohol.

  34. “And that barely rates a mention.”

    Apart from being the front page lead in at least one major newspaper. Definitely a sign of it being hushed-up.

    And in response to your questions – I don’t know, but the comments made by the judge I cited previously are hard to square them with the penalty. Hence the concerns seem valid.

  35. Sam says “Doesn’t sound like anybody with knowledge of the case is claiming ‘nothing’ happened, or that it was entirely minor.”

    You’re right – I haven’t seen anybody – with or without knowledge of the case – suggest nothing happened.

    I have seen the opposite though. Even Jan Logie above is falsely saying the claim of no paedophila tendancies was made, simply because he was drunk (when it actually came from a medical report)

    And if it was as serious as people have claimed (despite not having the evidence)
    – why did the prosecution lessen the charges?
    – why did they agree to no jail time at all?
    – why did the judge say this case was extraordinary?
    – why did she judge that a conviction would far outweigh the serisouness of the crime?

    I’ve got children and have often called for harsher punishments for paedophiles. But I strongly suspect there’s a lot more (or a lot less) to this case, than what’s made out by many people.

    Meanwhile we’ve got cases of children being violently sexually assaulted with sharp objects – and it’s all hushed up by the school – no reports by the school to police, cyps – parents weren’t even told. Let alone any charges laid.

    And that barely rates a mention.

  36. “I’ve seen an incredible difference in reports of what actually happened in this case, from rape, attempted rape, oral sex, a kiss, to nothing.”

    According to news reports, the judge referred to “the gravity of the offending”, “there was a breach of trust against a vulnerable victim” and “The man had demonstrated significant remorse and had taken all steps to ensure that he would not reoffend”.

    A doctor’s report said the man had had several occasions in the past of “odd” incidents occurring after waking up after drinking and not having knowledge of what he did and that he had since sworn off alcohol completely.

    Doesn’t sound like anybody with knowledge of the case is claiming ‘nothing’ happened, or that it was entirely minor.

  37. The law says “innocent until proved guilty” but isn’t an admission of guilt as good as being proved guilty ?
    Its easy to jump to conclusions,without studying all the facts.. but after admitting it, this person appears to have been deemed innocent anyway.. go figure !
    I once admitted cannabis possession, but there was never a consideration of ‘discharged without conviction’.. it was just “GUILTY AS CHARGED !!” Kia-ora

  38. toad says “I think it is pretty obvious what part of the child’s body he kissed.”

    And you’ve previously said it was oral sex – despite the prosecution not claiming this.

    How come it’s so “obvious” to you – who hasn’t seen the evidence – but not obvious to the police, prosecution or judge – who all have.

    Could it be that you have completely made your mind up – without having seen any evidence?

  39. Does Stats publish any information about the number of convictions people have? (ie. X people with 0 convictions, Y people with 1 conviction, Z people with 2 convictions, etc.) I’ve had a quick look but can’t see anything like that.

    If I understand correctly, there’s a resistance by the legal system to hand out first convictions because having any conviction results in some kind of stigma that’s likely to affect a person for the rest of their life, both within NZ and overseas. After the first conviction this is probably less of an issue.

    By this logic, if celebrity and money has nothing to do with it, you’d maybe presume there must be very few people with exactly 1 conviction (and those would have to be quite serious) and lots of people with either zero or multiple convictions. I’m curious if that’s how it actually works out.

  40. ….and then of course the horrific ambivalent parody – one Law for you and me, and another one for those deemed to be ‘assets’ of some description – look at all the Rugby players walking away from assault convictions….I’m beginning to see how the London riots got started…

  41. @photonz1 12:59 AM

    Given that the original charge was “unlawful sexual connection” before it was plea-bargained down to “indecent assault”, I think it is pretty obvious what part of the child’s body he kissed.

    I’m with the prosecutor on this one:

    Mr Shaw said while the Crown was not asking for a prison sentence, a discharge without conviction was “not in the ballpark”.

    “It entirely undercuts the deterrent aspect. There is effectively no sentence.”

  42. I agree with photonz1 on this one.
    Too many assumptions from the public (us) based on very little material and what we have been able to read has been unclear.

  43. fin asks “would you plead guilty to indecent assult if you kissed your daughter or did nothing?”

    Perhaps. If the situation was extraordinary, which is how the judge described it.

    Remembering that –

    1/ He was asleep and drunk when it happened so had no memory of it – only what his ex-partner had accused him of.

    2/ The police summary (as reported) says he undressed his daughter and kissed her. The prosecutor said he was “drunk and in a deep sleep at the time of the offending”. Although far worse things have been said to have happened (including above) I haven’t seen any court or police reports accusing anything other than that.

    3/ He was offered the choice of going to jail as a paedophile, or pleading guilty to the lesser charge with no jail, and (reluctantly from court reports), did the later.

    So if I was accused of an offence I had no knowledge of because I was drunk and in a deep sleep at the time, pleading guilty to avoid going to jail would be an option worth serious consideration.

  44. This must be absolute bolloks! If you accidently murder someone it’s manslaughter. Being drunk is no excuse. Mitigating cicumstances might reduce sentence, but to not be convicted??
    Accidental indecent assult. Is there a legal loophole?
    Did he claim he thought his 4yo was his wife?

  45. toad says “And under the Green clean slate legislation Nandor Tanczos got through Parliament, his conviction will be suppressed if he doesn’t offend again for 7 years.”

    No – it wouldn’t apply for this crime.

    I’ve seen an incredible difference in reports of what actually happened in this case, from rape, attempted rape, oral sex, a kiss, to nothing.

  46. @Barry 9:01 PM

    I take your point Barry, But I still think at least a conviction should have been made, even if no sentence were imposed.

    Performing an indecent act on a child is an very serious offence. This guy pleaded guilty of doing it. Surely, potential future employers (possibly in the ECE or primary educations sector) should be aware of that history.

    And under the Green clean slate legislation Nandor Tanczos got through Parliament, his conviction will be suppressed if he doesn’t offend again for 7 years.

    But when someone drunkenly attempts oral sex with a young child, surely the law should provide some formal record of conviction to help those within the community with whom he may later interact in future employment options involving children mitigate the risk of repeat offending.

  47. I am reminded of a British study where they took two groups of people and showed them information about court cases and sentencing.

    One group saw newspaper reports and thought the sentences were too light on average.

    The other saw judges’ sentencing notes and thought the sentences were too heavy on average.

    I was surprised to read the reports too, but am inclined to give the judge the benefit of the doubt. Without having see the whole of the case there is not enough information to say whether she is right.

    If someone who sat through the court case wants to comment, they could add some clarity, one way or the other.

  48. Lesley – I absolutely agree – this just takes things from offensive to truly bizarre. I do assume the people administering this will have more sense than to put him around children.

  49. Section 132 (3) of the Crimes Act provides for a maximum sentence of 10 years imprisonment for the offence that The Comedian admitted; doing an indecent act on a child. This was a serious offence to which the offender pleaded guilty. For him to walk from the Court without even a conviction against his suppressed name is outrageous IMHO.

  50. I agree Ms. Logie, perpetrators of sexual & violent crimes should feel the full weight of the law. How can anyone who admits a sex act, against a child.. get off ?
    The ‘justice system’ in Aotearoa is blocked up with ‘drug offenders’ who are often only hurting themselves, whilst this person was discarded without conviction. What the hell is going on in this country ? Its a disgrace !
    Kia-ora

  51. Without suggesting it applies here, I’m wondering about the tendency of discharging without conviction in general. Am I right in believing that it’s essentially the legal system trying to bluntly compensate for some parts of society’s way of treating people irrationally if they have any conviction, irrespective of its magnitude or relevance? (Notably prospective employers and immigration officials of other countries.)

  52. I just wanted to add that I was even more shocked by the judges suggestion bellow(assuming the coverage on stuff was accurate).

    “The judge said voluntary community work would be a condition of his discharge but it could be carried out using the comedian’s “talents” in rest homes or schools.”
    http://www.stuff.co.nz/national/crime/5555711/Comedian-discharged-over-sex-act-on-daughter

    Not only has this man been discharged without conviction allowing him to potentially work with children in the future without his employers having any knowledge of his past offending, the judge is actually suggesting he does community service schools. I just hope no school or community agency working with children would agree.

  53. Jeff, as I noted in the substantive post and Jan suggests in her comment, I think politicians should be cautious about criticising judicial decisions. When it comes to findings in law, including re guilt in criminal cases, or in fact, I would expect politicians to defer to Judges who have actually heard all the evidence and have expert training in interpreting the law and applying it to the facts.

    However, in deciding whether to discharge without conviction, or in sentencing, the Judge has considerable discretion as to what matters to take into account and the weight that should be attributed to them. I think it’s fair enough for politicians to speak out in those instances if they think that discretion has been exercised in a manner that is unjust.

  54. Fair enough Jan, probably correct technically, my view is that it is a little more blurred than that and once a “member of the public” assumes a position on a party list, especially a high position such as yours, there is a need to tread very carefully. Just my thoughts but thanks for the post

  55. Jeff – I wrote this letter as an individual and as you note I am not currently an MP. I made a personal call that there is a distinction between being an MP and a potential MP. I too agree that the separation between parliament and the judiciary is vital.

  56. The story is appalling and I really have nothing to add. I am concerned that someone who is very likely to be entering Parliament within the next 3 months is openly critising the judiciary in this manner.

  57. It’s newsworthy when organisations such as the Sensible Sentencing Trust and Barnardos are in accord on an issue, and even moreso when a political party adds it’s voice of concern along the same lines.

    The Crown should be seriously considering testing Judge Phillippa Cunningham’s decision on appeal. IMHO the scales of justice have tipped far too far in favour of the defendant, and justice has not been done for the complainant and the child victim.

Comments are closed.