Brian Rudman: Press pause before throwing away the key

According to former Maori Party co-leader Pita Sharples, Maori get fewer warnings or diversions from the police and are more likely to be prosecuted and convicted. Photo / APN

Those baying for the blood of the Maori King's second son after his drunken night out with some mates should take a deep breath and consider what they're demanding. Though Maori make up just 14 per cent of the national population, they already account for 42 per cent of all police apprehensions and 50 per cent of the prison population.

According to former Maori Party co-leader Pita Sharples, Maori get fewer warnings or diversions from the police and are more likely to be prosecuted and convicted. And once found guilty, are "11 times more likely to be remanded in custody [and have a] 50 per cent higher chance of a prison sentence, leading to five times the rate of imprisonment".

I'm no fan of hereditary monarchies, whether they be the super-privileged and super-rich Windsors who reign over us from their British palaces, or the bargain basement Tainui model into which 19-year-old Korotangi Paki was born. But the last thing New Zealand society needs is another young Maori kid, whatever his ancestry, being thrust into the jaws of the voracious criminal justice system.

What has outraged many is that Judge Philippa Cunningham granted Paki a conditional discharge without conviction on a drink-driving charge and subsequent charges of theft and burglary while out with three friends at Waikanae and Wainui beaches.

The one advantage of birth that Paki does have was the ability to be represented by a QC in court - something most Maori defendants would not be able to afford. But the discharge without conviction was not something Judge Cunningham suddenly plucked out of nowhere to cuddle up to Maori royalty.

Being discharged without conviction under section 106 of the Sentencing Act is available to all when the sentencing judge "is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence".

It's often used to save law students who end up in court after a drunken night of revelry. Many lawyers tout for business on websites outlining their prowess in achieving section 106 discharges.

One skites about getting a prominent athlete a section 106 discharge on a drink-driving charge, arguing that a conviction would effectively end contract negotiations with a Japanese club worth $500,000. Arguing that "this is an area where it pays to be creative", the lawyer points to getting affidavits from the United States, Canada, China and Saudi Arabia to secure a discharge without conviction.

Another lawyer gives short summaries of her "great results". She's got discharges without conviction for "failing to stop and ascertain" after an accident on the Auckland Harbour Bridge, for being "party to a serious corner store robbery", for burglary of a yacht, for assaulting and threatening to kill his wife, for biting a policeman's hand and drawing blood, for whacking a fellow bar patron in the face while holding a glass, and many more such cases.

This particular lawyer prices a section 106 discharge as normally involving three office appointments and two court appearances at $200 plus GST each session. An additional "success fee of $250 plus GST applies if s.106 discharge [is] granted".

In March, Auckland teen Stephen Dudley was assaulted after rugby practice and later died from an undiagnosed heart condition. His 16-year-old assailant was granted permanent name suppression and a discharge without conviction.

A few days before Judge Cunningham's decision granting Paki a discharge, Judge Geoffrey Rea, in the Gisborne District Court, led the way with similar discharges for his three co-accused. The 19- and 20-year-olds, along with Paki, had stolen three surfboards, a cattle prod, designer hat and jacket from a car after a drinking session.

Judge Rea ordered them to pay prosecution costs but discharged them without conviction, saying it was the first time in his 19-year career he had exercised his power of discretion to do so. He said none of their lawyers had requested section 106 discharges, but that this was a special case. He said he had never before seen a situation where defendants and their families had done so much to make amends.

The parents had organised restorative justice sessions with the victims and a busy schedule of community work, including officiating at primary school rugby league contests and creating personal artwork gifts.

The judge said he "couldn't believe the amount of work your families put in to try to get you sorted out. And you yourselves have done all you can to put things right".

Paki had joined with his co-accused in the restorative justice and community work carried out in Gisborne. According to the King movement spokesman, Tuku Morgan, they'd already completed 120 hours, and 60 hours were outstanding. Judge Cunningham also praised Paki and his friends for this. She disqualified him from driving for eight months, and discharged him without conviction on the burglary and theft charges on the grounds that a conviction would ruin his chances of succeeding to the throne.

Whether that's a prospect that keeps him awake at nights, I have no idea. But it certainly fits the requirements of a section 106 discharge. And if law students and rugby players can take advantage of it, why not a Maori "prince"?

Thanks to their families, Paki and friends have already undergone a form of communal justice, including restorative sessions with the victims, and shaming within their community, at least as stern as any the courts could impose. That's where this should end.