A Law Unto Herself

New Maths Calculus and Justice Cunningham

The New Zealand Mongrel Mob and Hells Angels and all the other members of the Criminal Gangs Association (CGA) have, through their national association, petitioned the Solicitor General to ensure that all gang cases be heard before Judge Philippa Cunningham.  

Cunningham is the most motherly District Court Judge.  She carefully weighs, on a set of scales unique to her, the true costs of any sentence she may hand down.  For example, if a prominent well-known member of society commits fraud, theft, or sexual assault, Justice Cunningham is likely to discharge without conviction on the grounds that the mere publication of the famous name would be a price too high to pay, for, say sexually assaulting a four year old daughter.  In this infamous case, the accused was a minor-celeb, and he made people laugh.  It was too much, according to Justice Cunningham, to have society deprived of his wholesome wit.

The CGA reasons that its petition will advance the cause of all gang members.  When trying gang members, Justice Cunningham is more than likely to consider the deprivation and humiliation and suffering already endured by your average member.  At worst, Cunningham is likely to dish out a token punishment only, like home detention, unless engaged in gang business.

An example of her enlightened judicial calculus is contained in the following article:

An Auckland man who beat his wife with a hammer because she complained they weren't holding hands while watching a movie together was allowed to walk free from court.  Judge Philippa Cunningham ruled the consequences of convictions for Yasir Mohib, who pleaded guilty to three violence charges, were out of proportion to the gravity of the offending and discharged him without conviction.

She placed particular importance on the possibility the 31-year-old, who has three New Zealand-born children, might be deported to Pakistan despite the legal principle that a sentencing judge should not usurp the role of Immigration authorities. [Newstalk ZB]

 It is somewhat disturbing, to say the least, that her judicial colleagues apparently do not share her profound enlightenment and superior insight.

But her decision was later overturned by the High Court and labelled "plainly wrong" - the third time Judge Cunningham has granted a discharge without conviction and been successfully appealed.  In his judgment on Mohib, Justice Edwin Wylie said the district court judge failed to correctly identify the seriousness of the attack.

He had doubts about Mohib's insight into the offending and said the victim's retraction of her initial statement to police was a "rather disturbing factor in the domestic violence context".  "The assault was vicious and premeditated. Mr Mohib has denied full responsibility and he has sought to shift the blame to the victim and her family," said Justice Wylie.  "In my view, the Judge failed to fully appreciate the gravity of the offending and she placed excessive weight on the immigration consequences."

The High Court judge earlier ruled Judge Cunningham made an error in the law by usurping the function of immigration authorities.  "This was not a case where convictions would necessarily lead to deportation...Parliament has entrusted the immigration authorities with the obligation to consider whether persons convicted of offending ought to be allowed to remain in New Zealand.

"Finally, the [Solicitor-General] argued that the Judge's decision to discharge without conviction was plainly wrong," said Justice Wylie.  "For the reasons I have set out, I agree."  He convicted Mohib and sent the matter back to the Auckland District Court for sentencing.

Senior law lecturer, Dr Bill Hodge was clearly embarrassed on the part of Justice Cunningham:

Dr Bill Hodge, an expert in criminal law at the University of Auckland, said a decision maker like a judge feels the "sting" of being reversed on appeal by a higher court.  "It is tempting to say that a judge should be especially careful in an area of the law where he or she has been subject to appellate criticism, or the remarks of a higher court judge who finds the decision in question to be defective in some significant legal essence," said Dr Hodge. 

Ouch.  Meanwhile, we await to see whether the Solicitor General will allow the request of the Criminal Gang Association.   Apparently the ACA has ranked Justice Cunningham as their favorite judge.  They have started a petition amongst members to see her appointed to the High Court.  That's justice, Cunningham style.

If case you are interested, Justice Cunningham was a Leftist Labour appointment--part of a coterie of sisters elevated into judicial ranks to advance the feminist cause and Sisterhood.  Judges in New Zealand are appointed for life.