Caseload: Judge did it again

Justice Patrick Keane rejected a Crown submission for preventive detention for a HIV-positive child-sex offender. Photo / NZME.

UPDATE: A response from the New Zealand Bar Association on the following report on Justice Patrick Keane is at the end of the article.

Justice Patrick Keane - who rejected a preventive detention bid that would have stopped Tony Douglas Robertson going on to rape and murder Blessie Gotingco - has a track record.

Justice Keane's rejection - and the consequences - of then-Crown prosecutor Simon Bridges' 2005 bid to have Robertson jailed for an infinite term of preventive detention for child molestation are well documented.

What is less well known is that in late 2010 Justice Keane also rejected another call for preventive detention when jailing repeat child-sex offender Roy Francis, 27.

HIV-positive Francis, who abused children under 12 after his release from a 15-month jail sentence for molesting a seven year old boy, admitted 18 sexual offences committed over nearly three months.

Thirteen of the charges related to a girl under 12, including rape and sexual violation. The other five charges related to sexual conduct with a boy under 12.

On that occasion, Justice Keane again rejected a strong Crown submission for preventive detention, instead sentencing Francis to nine years and four months jail, with a non-parole period of four years and eight months.

Francis would have been eligible to apply for parole earlier this year.

The offending warranted a starting sentence of 13 years plus one year for previous convictions but the sentence and non-parole period were substantially reduced because Francis confessed and pleaded guilty.

At the time of Francis' sentencing, the Ending Child Prostitution, Child Pornography and Child Trafficking for Sexual Purposes organisation (ECPAT NZ), expressed concerned at what it believed was too light a sentence.

ECPAT national director Alan Bell said at the time the confession was only made when Francis knew his victims had contacted the police "so one cannot help but be cynical about the motivation of the confession".

"Once you know your number is up and you can get your sentence halved by pleading guilty, you would have to question the degree of remorse being expressed compared to purely milking the system," Mr Bell said at the time.

Mr Bell said it was a very serious case at the upper level of offending against children, where not only did Francis sexually abuse children - he was also HIV positive at the time.

Justice Keane, who has been lawyering since 1970, is fast approaching judicial retirement age of 70.

He was appointed a district court judge in 1987, seconded to the Law Commission in 2001 and promoted to the High Court in 2003.

He previously worked at law firms Izard Weston, Watts and Paterson and the Crown law office.

Footnote: Back in 2004, Justice Keane wrote in the journal of Clarity - an international association promoting plain legal language - about what judging is about.

"The decisions judges make must enjoy public confidence," he wrote. "Ultimately, public confidence can only rest securely on understanding not just as to what the judge has decided ...

"What a judge decides must be supported by reasons. There must not merely be reasons, they need to be expressed completely and clearly. Ideally, they need to make sense to anyone who has an interest ... " (Abridged)

Folk might wonder if Justice Keane's rejection of preventive detention for two dangerous offenders destroys public confidence in judges and makes no sense at all.

And whether it is time to put honesty into sentencing.

"In reply to the lawyers concerned that the government spends 'far too much time being influenced by the rantings of the Sensible Sentencing Trust and similar organisations and ignores the views of those who know and really matter' - can their spokesperson advise just which 'rantings' are being referred to and who 'those who know and really matter' are?

Can I assume that these lofty individuals have had, or will have, a bailed alleged sex offender live with them and their family until their court appearance?

Have they been, or will they be, the lifetime sponsor for a sex offender upon their release from a finite custodial sentence?

Home detention to be served at the residence of 'those who know and really matter' sounds ideal, so there is no chance of absconding and re-igniting the possibility of escalated offending.

It's called putting your money where your mouth is and, of course, there will be no nimby actions by these champions of justice ... " (Abridged)

Recent kid on the internet block Shayne McLean - CaseLoad has no idea who this person is or if this is their real name, and cares even less - has opinions on folk who eke out a living working in the news media.

Something called a "blogspot" conjures up columns in the style of the various columnists Shayne McLean slags off - a flattered CaseLoad being no exception.

After giving CaseLoad a seeing to, Shayne McLean ended: "Note from Editor - Jock got a column when the NBR red carded him. I can't sack him because well argh ... I am not sure about that but lawyers live in fear of what he serves up and it means our lawyers are kept in line so jolly good please continue Jock."

It took less than half a day for the name and employing firm of an Auckland commercial lawyer accused of being a drug dealer in a methamphetamine ring to be all over town - such is the speed with which collegial lawyer loyalty works.

He and six others - facing a total of 189 charges, mostly involving supplying methamphetamine and possession for supply - were given name suppression until another hearing in September.

It looks like serious stuff - a conviction for supplying Class A drugs carries a maximum stretch of life imprisonment.

Meanwhile the chap's profile and happy face were still on his firm's website this week - an indication the partners are holding true to their belief in innocence until proven guilty.

Captain Alwyn Gordon Vette, 82, whose death the other day was largely overlooked by the news media, played a vital role in obtaining justice in New Zealand's most controversial air disaster - the 1979 Erebus crash.

As Air New Zealand and its spin machine worked overtime to blame the crew for Flight TE901 crashing into Mt Erebus in the Antarctic, killing all 257 people on board, Captain Vette quickly began to consider the crew was not to blame.

He did not accept the cause of the crash was pilot error, and at Justice Peter Mahon's subsequent Royal Commission of Inquiry into the crash, he presented his investigative efforts to Justice Mahon - and they were accepted.

Effectively written off by Air New Zealand, Captain Vette's investigative efforts - which cost him his career - were part of the public debate and demand that precipitated the Mahon Inquiry - six months after the release of the official accident report.

Justice Mahon presented his extensive findings, which supported Captain Vette's provocative and original theories about the tragedy of TE901.

Justice Mahon described a single cause of the Erebus disaster: "In my opinion therefore, the single dominant and effective cause of the disaster was the mistake made by those airline officials who programmed the aircraft to fly directly at Mt Erebus and omitted to tell the aircrew. That mistake is directly attributable, not so much to the persons who made it, but to the incompetent administrative airline procedures which made the mistake possible."

Are criminal barristers the downcast serving the downtrodden? Followed by reflections on the difference between crime and commercial lawyers - the Hallensteins versus Crane Brothers factor.

Footnote: Our Man At The Bar and The Scunner have been granted compassionate leave to find new jobs.

Response from New Zealand Bar Association

1. The New Zealand Herald 21 August 2015 carried Jock Anderson's "Case Load" article concerning Justice Patrick Keane of the High Court. The headline and by-line "Blessie's killer wasn't alone in avoiding preventive detention" implies that Justice Keane is somehow responsible for the unfortunate death of Blessie Gotingco and that his decisions not to impose a sentence of preventive detention on her killer and another offender were wrong.

2. That criticism is baseless. Judges accept, reject and balance submissions every day. The fact that a submission is made does not mean the Judge should follow it. That the Judge did not accept Crown submissions to impose preventive detention in both cases does not mean he was wrong to do so.

3. Of all people in the Courtroom it is the Judge who is in the best position to receive information, to assess it objectively and to apply the law.

4. On the facts and on the information before the court, preventive detention was never a realistic option for Tony Robertson. The judge was correct not to impose preventive detention and the Crown did not appeal his failure to do so. Nor was there an appeal against the Judge's refusal to impose preventive detention on Roy Francis in 2010.

5. Mr Anderson refers to an article by Justice Keane published in 2004 when the judge said that public confidence in judicial decisions requires reasons which are complete, clear and sensible. Justice Keane's sentencing decisions in the cases cited do just that and give reasons which are full, detailed, clear and understandable to anyone who takes the time to read them.

6. There will always be people who reoffend. A sentencing judge must deal with the case before him or her and sentence on the facts according to the law. No judge can ever be responsible for a person's future conduct and to suggest otherwise is unjustified and irresponsible.

7. Justice Keane has earned the respect of the legal profession for his compassion, humanity and sound judgment. He has been the subject of journalistic criticism which is neither balanced nor fair and which serves no purpose other than to falsely and wrongly undermine public confidence in our system of justice.

Paul Mabey QC, President, New Zealand Bar Association