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.

NZ's Anti-Money Laundering & Countering Financing of Terrorism Act; Trust Law; Bounded Liberty #RedTapeNonsense

  

[ This’s a plea to Minister Judith Collins. It started out as an angry, ranty post, until I read on BBC that angry people risk heart attacks so I’ve tried to tone it down. This’s hard for me, though fortunately also useful as practice for when Judith’s anti-cyber bullying (hate speech) bill makes it to anti-free speech legislation and I really have to start self-censoring my b’s and f’s. (Although for the record, before I begin, that cup of milk … it’s irrelevant, I couldn’t give a damn, pass my congratulations onto your husband for his business success. Reads like a good bloke.) ]

As an independent (corporate) trustee of various trusts, the new Money Laundering and Countering Financing of Terrorism Act is adversely impacting on my life for no good reason I can see. On every client bank or property transaction I have to provide two, sometimes more, verified forms of ID, where previously one would do. A bank of one client trust which already has my driver’s licence details to prove I’m me, not an Al Qaeda sleeper, has just emailed to say it now requires a scanned copy of my credit card – what? - passport, or some other form of ID on their file. When asked why, the reply is 'because of the new money laundering Act.' Surely one ID is enough? Worse, my driver's licence et al has further got to be verified or witnessed by a solicitor, JP, or notary public, even on client banking facilities, loans, etc, I will never be executing a single cheque or drawdown from, and against which I have a professional indemnity. This is mental. And whereas in the past a wide range of people independent of myself could witness my signature on electronic transaction authorities, now it has to be, again, a solicitor, JP, or public notary, meaning when I’m living in the Mahau Sounds – soon to be six months a year – and a client sells the shop because they’re giving up under a tsunami of regulation and tax which is now life in the West - I have to drop any plans I might have had on that day, incur the understandable wrath of Mrs H., and make a three hour round ruddy trip to Blenheim – meaning I effectively lose a day – just to get a solicitor or JP to witness my signature; (witnessing only a witless nonsense.) As I thought this legislation was going to be, it has resulted in an ongoing waste of my time, all the while being philosophically repugnant given there are some privacy issues around having to give a huge range of financial institutions that I do not bank with, my private information, because much of the information in my passport, my driver's licence, et al, is private (for example, my birthdate - Mrs H, a joint director, is mortified at having to supply this to every damned bank in our small town and rural area, most of the staff of whom we have a passing acquaintance), and as for being asked to send a copy of my credit card, I wouldn't insecurely email my credit card details for a purchase transaction, let alone for this. And I'm not alone.

 
Coincidentally, just today I’ve had a lawyer – mine in fact - call in to sign a book of loan documents for a mutual client that would make War and Peace look like a short story, and he told of a bank that had just asked him, in his capacity as independent trustee, for a verified copy of his driver’s licence, a copy of his passport, a bank statement with his name on it - few more private documents than that - and a photocopy of his credit card. When it got to that latter item he told the bank to, quote, ‘F*** Off’.
 

And I concur. F*** off. The same reply the aforementioned bank will be getting in due course, (though I'll make them chase up the request first, and waste their time like mine is being.)

 

(Damn, I’ve let that pissed off feeling catch up with me.)

 

Judith, can you please get some reason back into this red tape monstrosity of an Act. It’s bullshit. I have started a process of actively trying to get out of all independent trusteeships, given the hurdles set up by this Act combined, more especially, with what looks to be the likely scoping of future trust legislation vis a vis such further liabilities that will have to be borne by independent trustees, including corporate trustees. Question: how does a corporate trustee with no assets pass a major transaction resolution or solvency test? Answer: it can't. And if legislation comes out of the Law Commission Review of Trusts as it is looking to be, there’s going to be unjustified, unholy mayhem in this field. Because while we're on the topic of trusts and privacy, trusts serve a useful function for many families when used correctly, and I’m not referring to matters regarding tax (in which they now have the highest overall tax rate). With what looks to be the upcoming move to public disclosure and transparency for family trusts this usefulness, and for some families, necessity, will be lost, and with that the last chance for parents in New Zealand to control the wishes and plans they have for their estate - the material product of their lives work – as distributed amongst the members of their families, given our judiciary has succumbed totally to a socialist ethic of ‘fairness’ and has no compunction anymore over-throwing Wills they think may advantage one sibling over another, despite that being, for whatever reason, the dead parent’s wishes: what a state when our children have been nationalised, judges apparently knowing what is better for children than their parents do. I’ve written many posts in here on the parlous state of our law with Gramsci at the head of every state classroom training our lawyers. An individual’s rights over their property, and the right to control what happens to that property, in life and death, are sadly consigned to distant history in New Zealand. Not just the overthrowing of what should be a sacrosanct last will and testament, no matter how unpopular a Will’s provisions might be to its beneficiaries, and offended a judge’s sense of fairness, but in the absence of trusts, and attacks on pre-nups, relationship property law as being interpreted by the courts, has also become another means of destroying private property rights - though that’s another topic entirely.

Back to the subject I started with, all this hassle and inconvenience for what? The number of instances of money laundering I’ve seen, heard of, read about, over almost quarter of a century in practice, is precisely none. That’s zero, zilch, not a single case. And last time I looked there were no terrorist cells running amok in South Canterbury, and even if there were, I doubt they’d be doing the economic and philosophical carnage that the Fortress of Legislation in Wellington is doing to us. Tell me again why we had this further red tape foisted on us? Particularly, how is supplying a verified copy of my driver’s licence, and my credit card, or bank statements, verified by a solicitor, JP or notary public, at much inconvenience, and complete with Mrs H having to disclose her age to the whole damn town, going to save New Zealand from terrorists?

Your party of small government continues its bureaucratic goose step into an intrusive big government pain in the arse. Kiwis have to wake up the real costs, which you can't count on an abacus.

 

Whoops, no that was a rant, wasn't it. Never mind, it's over now, thank you for your time, Judith, albeit I realise nothing will come from this.

 

Footnote on Privacy:

 

Bureaucrats will always be offhand with your privacy because your privacy from the state is, first, anathema to them, second, an annoyance: it’s the culture that is necessary for them to go about the evil work of having the big nose of state stuck firmly in your entrails. You must not have privacy from the tax surveillance state, ever. So this latest passport privacy breach is unsurprising, and from my perspective barely registers anymore:  so 400 passport applicants got to see the others email addresses. I’ve got to show my actual passport to all and bloody sundry, thanks to Judith, and for business which is ultimately nothing to do with me. Now that’s a privacy breach.

 

Recap: Slavery versus the Social Contract – First Glimpse of my Novel.

Before I put up my piece on the Founding Fathers fallacy regarding the 'inalienable' nature of the rights to life, liberty, and the pursuit of happiness (sanity), that has been at the heart of the destruction of classical liberalism, a little recap on some of this blog’s themes to date:

The Anti-Slavery Society define a ‘modern slave as ‘a person who is treated as a slave or is reduced to a condition of slavery if another exercises power or control over that person: (1) to restrain their personal liberty; and (2) to dispose of their labour against their will. Furthermore, “forced labour", in international law, refers to those forms of labour obligations or penal labour imposed by a state or an agency or agent of the government or state.

Interesting, when considered in the following light:

Not counting the extensive and growing indirect taxes I pay – GST, excise taxes, et al – on my tax bracket, income tax alone takes, by force, one third of the reward from my labour: one third of my effort, despite this is a theft, and like all thefts, a violent one, and regardless I am implacably philosophically opposed to probably ninety percent of the uses to which the state puts that money to grow the increasingly violent prison of the welfare state – that is, outside of simply protecting my person from the initiation of force or fraud. Worse, when the Left (and I know it’s hard to see much difference to the present National Socialists) get back in power in 2014, and Keynesian Devotee, David Cunnliffe, takes command of the chains from Wellington, that percentage will rise to 39% of my labour – at least.

In order to extort this effort from me, the state has had to give to IRD, as ex-MP Rodney Hide admits, the full powers of the totalitarian state in snooping, search and seizure to necessarily ‘restrain my personal liberty’. The individual is allowed no privacy from the IR's, cannot deny their interrogation demands, has no legal recourse against them under any form of judicial review, just like the secret police in every thug state throughout recent history. Life is legally an open book to the IR’s, on pain of the full force of our immoral law. As my byline states, despite our inept mess of tax law, you better get it right, or the state will squash you like a bug. And be warned, such has been the success of Gramsci, our judiciary have abandoned their role as a safeguard in the classical liberal society: rather than being there to protect me from the state and its abuse of power, they're complicit in the abuse, delivering my life to the bureaucrats, all in the name of the war for fairness (*), which is always the war against choice, thus the war against voluntarism, thus the war against freedom. Thanks to a compliant, philosophy bereft judiciary, the IRD have won every major tax case that matters over the last ten years, because the taxpayer merely exists to be his brother's slave, at least, that's what the opinion of the Law Society has crumbled down to.

In the New Zealand government accounts to end of April just gone, despite the global financial crisis, and slow domestic economic activity, the government tax take went up by $772 million, and yet it still continues to borrow to grow the State bigger and bigger in dollar terms, consigning future generations to the tax slavery that I am trapped in. The Finance Minister’s ‘zero-budget’ of May this year was doublespeak: he’s spending more than the last Labour government who openly believe in the thug state, and that individual lives exist only to be sacrificed for the common good of total strangers, plus it would be a pretty good bet that next year's budget will see a bigger dollar spend again. Though as bad as that is, in the US their government debt is on the path to grow to twice the size of their entire economy within the next twenty five years.

All of this is something much more menacing than the wilful insanity of our politicians …

Considering the above, leads me to an inevitable conclusion: I live in a society not founded on Rousseau’s civilising ‘social contract’, which would be the only reasonable counter argument; I live, instead, in a society, behind the IRon Drape, founded on slavery, enforced ruthlessly by the state. Unfortunately, just like the proles in Orwell’s nightmare novel, 1984, until you come up against the state with its nanny mask off, you cannot understand the true nature of it, though that doesn’t change the nature of it, as more and more of us will realise when our Western economies go down under the weight of debt taken to pursue the fool’s illusion of the welfare state. That’s why in the novel I’m writing, imputing Orwell’s desire to create political writing as art - and my book is firmly character driven literary fiction - I’m putting all the major characters of 1984 into a modern day tax audit, in which, frighteningly, I don’t need change any of our current tax and enforcement laws to make the above point. (Although, note, I do need to get the permission of Orwell’s estate, because that novel is still in copyright for another seven years).

Um, by the way, just for good measure, slavery is also indicated by the restriction of the movement of individuals.




(*) Quoting from Stephen Franks post:

One of the Law Society reps gave orthodox lawyerly analysis. The other offered worthy sentiment couched as economics and legal theory. If it was either it was from schools unknown to me. I think I heard Rajan Prasad  cited as an economic sage, but I must have been mistaken. And it must have been hard for the other lawyer to sit politely when the committee was told that they should over-ride freedom of contract by competent adults because "law should mimic what a perfect system would produce if everyone was acting fairrly and in each other's best interests".

That is theology not law. It could only be administered by priests, with god-derived powers to know more than the parties to contracts.