Law must be applied equally

Should committing an offence that carries a serious penalty not . . . come with some inconvenience?

Aquestion, and it’s an important one. In our justice system, to quote a well-worn legal maxim, is the punishment supposed to fit the crime, or the employment status and social standing of the offender?

If you’ve read the story of Fergus Donald Cleaver’s ‘‘brush’’ with the law, reported by Stuff on Saturday, you will have some idea where this is going.

Cleaver, who is the principal partner at Cleaver Partners, an inner-city Auckland accounting firm, was charged with injuring with reckless disregard, and with two counts of male assaults female, following an attack on his now former wife, whom he punched in the face, breaking her nose.

After a five-day trial in the Auckland District Court, Cleaver was found guilty of the first charge, but not guilty of the two charges of male assaults female.

Cleaver’s lawyer, Marie Dyhrberg, QC, applied for a discharge without conviction for her client, on the basis that the consequences of a conviction would be out of all proportion to the seriousness of the crime.

Judge Christopher Field agreed, saying: ‘‘I am of the view that it would be a very real and significant impact on his ability to travel, to the point, I would suggest, where he would be barred, effectively, from travel to some countries or, at least, the subject of very considerable delay and investigation before his application for a visa, for example, would be granted.’’

Dyhrberg had filed 39 references from Cleaver’s friends and business associates, submitted details of domestic violence programmes he had attended, and filed an affidavit from an immigration lawyer, who described Cleaver’s ability to travel with a conviction as ‘‘complicated and time-consuming’’.

The solicitor-general appealed against the judgment as ‘‘plainly wrong’’ but the Court of Appeal said the Crown needed to show not only that Judge Field was wrong, but that no judge acting rationally could have come to the same conclusion as he did.

Back to that question, then. Is it really the job of our courts, when somebody has committed a serious offence, to take into account whether a conviction will make the process of going about their day-to-day business slightly more difficult? Should committing an offence that carries a serious penalty not, by definition, come with some inconvenience, of at least the order of ‘‘complicated and time-consuming’’?

This decision – and there have been others of its type in New Zealand judicial history, some involving high-profile sports stars – reinforces the belief that New Zealand has a two-tier legal system, in which status, money, and the resultant access to highly paid lawyers, means some effectively escape the consequences of their actions. Those without, meanwhile, have no such luck.

‘‘The decision seems to say that those with enormous privilege in our society can be excused a brutal assault on a vulnerable loved one because it could lead to a loss of some of that privilege,’’ writes Jon Everest, a former police officer who now facilitates family violence and restorative justice programmes, in a letter to Stuff.

Article 7 of the Universal Declaration of Human Rights says that ‘‘All are equal before the law and are entitled without any discrimination to equal protection of the law.’’ So why the disparity?

Or is it simply the case, as George Orwell wrote in Animal Farm, that ‘‘all animals are equal, but some are more equal than others’’?