Pubdate: Mon, 10 Jan 2000 Source: Press, The (New Zealand) Copyright: 2000 The Christchurch Press Company Ltd. Contact: Private Bag 4722, Christchurch, New Zealand Fax: 03 364-8238 Website: http://www.press.co.nz/ Author: Mike Bruce QUESTIONS OF JUSTICE The light penalty imposed on a billionaire businessman, caught with more than 100 grams of cannabis resin as he entered the country, raises serious questions about the nature of our justice system. Although required under an immigration order to leave New Zealand by tomorrow, the man was discharged without conviction and had his name suppressed. He is understood also to have agreed to make a substantial donation to the Auckland drug rehabilitation centre, Odyssey House. The suppression order did not prevent publication of the man's name in newspapers outside the jurisdiction of the New Zealand courts or on the Internet. At least three newspapers in his home city published his name during the weekend. And the New Zealand Herald is seeking leave to appeal to the High Court against the order. Judge David Harvey's decision may have been pragmatic, but it has wider implications. Who can doubt that an offender of lesser means and unable to make a substantial donation might not have been able to win comparable leniency from the courts? In granting suppression, Judge Harvey decided that identification would be a penalty disproportionate to the offence. Yet the man admitted three charges involving more than 100g of cannabis. Customs officials found 56g of hashish, a concentrated class B cannabis derivative, and 47g of class C cannabis plant at Auckland Airport and elsewhere. Possession of more than 30g of leaf entitles police to charge an offender with possession for supply. On any reading of the facts, the man was extremely fortunate in the penalty he received. Judge Harvey had earlier discharged without conviction another American caught at Auckland Airport while trying to bring cannabis into the country. The judge decided that a conviction might have jeopardised the man's job as a safety officer and ordered him to pay $250 towards the cost of the prosecution. That amounts merely to a slap on the wrist. What were the reasons for the judge's approach? Suppression should be, and usually is, granted only when there are compelling reasons for it. It is most often used in sexual cases where publication of an offender's name could lead to the identification of, or harm to, a victim. It is harder to justify in other circumstances. Publication is customary, not only because it acts as a deterrent to others but also because it ensures that justice is not clothed in a cloak of secrecy. Generally, publicity is fundamental to its operation, judges taking the view that offenders must accept it as one consequence of their actions. That need not only to be fair, but to be seen to be fair, is compromised by any questionable decision. This country has plenty of precedent for dealing responsibly with visitors who import drugs of lesser quantity than those found in the billionaire's possession. In 1996, for example, a German tourist, Walther Paul Karl-Heinz Burow, was fined $10,000 for bringing in 12.3g of hashish for his own use, and an Austrian tourist, Torsten Atnickel, was jailed for three weeks for importing 16g. The following year, an Englishman, Christopher Ian Hall, was sentenced to six months periodic detention for importing 3.4g. Nor have US business people been exempt. Two years ago, Robert Lindner was fined $12,500 and expelled from the country for importing cocaine and cannabis for his own use. He had tried to bring in 11g of cocaine and 8g of cannabis. The drugs were discovered during an airport strip search. There is no doubt that, in law, Judge Harvey was entitled to act as he did. Under section 19 of the Criminal Justice Act, judges are given discretion to discharge people without conviction. The discharge can be granted if they perceive the consequences of conviction outweigh the gravity of the crime. Offenders admitting their crimes may be allowed to walk free because a conviction might affect their employment, health, or rehabilitation. Donations to nominated charities can also be part of the deal. Those who would decriminalise cannabis have, however, been quick to adopt the judge's decision as ammunition for their cause. The Green Party MP, Nandor Tanczos, says the penalty meted out to the billionaire is typical of the hypocrisy surrounding cannabis laws. He says the most advantaged members of society are less likely to be prosecuted or convicted of drug offences. "The reality is that if you are driving a BMW you are much more likely to be let off." That widespread perception does nothing here to enhance respect for the law. Neither would it be to this country's advantage if Judge Harvey's decisions were interpreted abroad to mean New Zealand was soft on drugs. The judiciary has a general interest, too, in combating any view that there is one law for the rich and another for the poor. Clearly, in exercising their discretion, judges should take account not just of the circumstances of a particular case, but of the wider message implicit in any penalty they impose. - --- MAP posted-by: Doc-Hawk