A Challenge to Judge Winkelmann on her Sentencing for the Death of Stephen Dudley.

The fact Stephen Dudley had an undiagnosed heart condition is irrelevant to the manner of his death at the hands fists of two brothers, one two years older than him, the other the same age:

The 18-year-old, whose name is permanently suppressed, attacked 15-year-old Stephen from the side after a rugby practice - punching him in the neck and continuing the attack while Stephen was on the ground.

Yet the elder brother accused was let off by Judge Helen Winkelmann with no conviction, (the younger brother never went to trial). The reasoning was that because of Stephen’s heart condition this was, apparently, a normal schoolyard assault (her term, a brawl), non-punishable.

When I went to school over three score years ago, two boys - the 17 year old an adult in my reckoning - blindsiding and king hitting an innocent 15 year old, then punching him unconscious, (some reports, such as above, say punching and kicking him on the ground, though that is not in the decision's statement of facts), was not a ‘normal’ schoolyard brawl, not by any means. This was a serious assault: if this had happened at Lincoln High School circa the late 1970’s, not only would normal school life have stopped for the entire school roll on the unimaginable momentousness of it, it would have gripped the nation in a horror that would not have been dissipated by weeks end. And regarding Judge Winkelmann’s concern at how the perpetrator was going to ‘transition into adulthood’ after killing this boy, I have to say that at 18 years old, he is an adult. That there is to be no consequences to the perpetrators’, both of them, for an innocent boy dying in these circumstances, I think I can fairly say, has stunned New Zealand. Judge Winkelmann refused to even give community service, albeit, the important thing would have been for her to have entered a conviction against the assailant's name, confirming the precedent for future teen behaviour that wading in with fists like this is not acceptable. And as bad, the one person this sentencing never considered was victim Stephen Dudley, nor his parents who were consigned to another level of hell by it, which Mr Dudley understandably informed Judge Winkelmann of, loudly, in the hoarse voice left him.

And something else. There’s been a lot about rape culture in New Zealand lately, and good for that discussion, but regarding a woman judge thinking this assault normal, a question (excuse the typo):

This will rile some: 2 elder boys blindsiding & punching boy unconscious is 'normal' assault, unpunishible. What if Stephen had been a girl?
— Mark Hubbard (@MarkHubbard33) August 7, 2014

@MarkHubbard33 What would Judge Helen Winkleman's sentence have been in that case?
— Mark Hubbard (@MarkHubbard33) August 7, 2014

Now think on if the victim who died in this brawl had been a girl and the judge a man.


Continuing the depressing news this Thursday evening, what followed on TV 1 news was the repulsive glorification of a biker gangster’s violent death and funeral; the glorification for the only reason that he was dating a celebrity. The whole piece imaging for the young a false heroism of gang life, where in reality it is a dead end life of violent, organised crime; a culture of violence, indeed, of the like that was responsible for stopping the broken heart of Stephen Dudley. The country hit a new low point for me tonight.


Update 1:

Four further points:

a) I have just listened to a lawyer on RNZ justify J. Winkelmann's position that this was a school yard fight in the moderate range of such fights. I don't accept this. A fight is when two individuals knowingly square off against one another, and thus can defend themselves from punches. According to various reports, Stephen did not want a fight, and did not know a fight was coming to him. The older brother had come in from the side and king hit him in the neck. It was not a fight, but a vicious attack against which Stephen had no chance to defend himself; he was never able to even lay a single punch.

b) In Australia, just that original king hit - forget the punches that continued to fall afterwards - was a criminal act, punishable, for adults, with a four year sentence. Ninety individuals have died in Australia since 2004 from king hits. When you throw a punch like that at an unsuspecting person's head/neck area you are always going to cause great harm, with death a possibility, and certainly permanent brain damage.

c) In my mind a criminal justice system is not concerned, in this case, with the welfare of the assailant. It is the role of criminal justice to punish the initiation of force/violence, and create the precedents that protect the innocent from the future use of such violence. With the assailant here suffering no conviction - noting you can have restorative justice, I'm just talking about the legal conviction on one's record - thus a clean slate and a future unhindered by his crime, there is no precedent set to put the consequences of uncontrolled actions or anger into a context for teens to make them think and modify their behaviour. I do not accept that we are animals who work off blind, uncontrollable rage: we all have choices in cases like this, but for some they will change their behaviour only where they understand from historical precedent there are long term legal consequences for resorting to this type of instant extreme violence, that is becoming the norm not the exception. J. Winkelmann is wrong in every respect with this decision, but not just the Judge, our law itself.

d) I wrote the above post in anger on the decision being delivered yesterday, without reading the full decision. On reading it, no important principle espoused changes for me, though I have corrected some of the facts regarding age, etc. I also understand how in many ways Judge Winkelmann's hands were tied by deficient law in her decision, however, my beef is in her judgement that this was normal schoolyard brawling - it wasn't - and thus to enter no conviction on record. If you want to compare what I have written against J. Winkelmann's decision it can be read here: click on High Court decisions R V. M.