I do not expect Stephen Dudley's parents to be rational about wanting the person they think caused their son's death to be punished. I remember being upset when the story first broke because Stephen looked like such a great boy and I thought the judge's sentencing looked wrong.

But when I read the judgment, I realised Justice Helen Winkelmann could not have convicted M for killing Stephen because M was not on trial for that. This is a vital distinction that most of the criticism of the judge seems to have missed.

Although the Crown had initially charged M with manslaughter, after medical evidence that Stephen had an undiagnosed heart defect that made him vulnerable to arrhythmia in times of stress this charge was withdrawn, because it could not be safely determined as a matter of fact (and thus beyond reasonable doubt) that the young man's assault actually caused Stephen's death.

Instead, the Crown charged the young man with assault with intent to injure - a charge carrying a maximum term of three years in prison.


The judge was required to assess the case that was in front of her, and thus put to one side the fact of Stephen's death and his family's inconsolable and distraught grief about that.

The Crown also sought only 80-100 hours of community service for the young man as appropriate, given previous good character, youth and his guilty plea. The Crown did not seek a custodial prison sentence for M.

The Crown did, however, oppose M's application for a discharge without conviction. Thus, the only issue is whether the judge should have granted a discharge without conviction or whether a more punitive non-custodial sentence was required under the Sentencing Act.

The Sentencing Act allows discharge without conviction only if a judge is satisfied that the direct and indirect consequences of a conviction will be out of all proportion to the gravity of the offence.

Justice Winkelmann did accept the aggravating features identified by the Crown that M initiated the violence against Stephen, who was younger than him, struck Stephen in a vulnerable part of the body, and that both M and his brother assaulted Stephen.

But the judge could not take into account that Stephen died after the fight because "there is no suggestion that any of the blows struck caused injury in and of themselves".

That is why the judge "assessed in that light these were punches thrown in the context of a schoolyard fight." And why she rejected the Crown's submission that M's actions were moderate offending "at least", and found the offending to be of low to moderate gravity.

The judge took account of M striking Stephen to defend his brother as evidence of no predetermination or malice.


Most important was M's age (17 when the offending happened), which is a relevant factor for sentencing under the act because of the "particular interest society has in ensuring young offenders are rehabilitated to be contributing members of society" and because "the law recognises that young people may in some circumstances be less culpable for their offending".

The judge then took account of M's previous good character, his remorsefulness, his guilty plea as soon as the charge of manslaughter was amended to assault with intent to injure, and that M was unlikely to reoffend. M was unable to complete secondary school, and missed the chance to complete his NCEA examinations.

But what affected the judge most was that a conviction for violence "can have a disproportionate impact on the ability of a young person to gain meaningful employment and to play a worthwhile role in society." I can only speculate that, as an experienced judge, Justice Winkelmann was concerned that a violence conviction for one so young could blight M's life and drive him to a life of crime. And that, together with her recommendation that schools should provide education on the risks of fighting, might in the long run do more to prevent tragedies like Stephen Dudley's.

The judge said in closing that nothing in her decision should be read as an endorsement of the young man's actions. Schoolyard fights may be common, but they should never be tolerated.

The sentence can always be appealed to a higher court. Otherwise, those disagreeing with the sentence should be asking whether the Crown made the right call in changing the charge and whether the policy underlying the Sentencing Act is right or should be changed. The act was last amended in 2011.

We should be debating law and order policy since New Zealand First, the Conservative Party and the Act Party (in order of current polling) have made tougher penalties an election issue.

Mai Chen is a partner at Chen Palmer, public and employment law specialists, and an adjunct professor at the University of Auckland Business School.
Deborah Hill Cone is back next week.