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.