Editorial: Sports talent clouding too many rulings

Blues rugby player George Moala appears in Auckland District Court for sentencing. Photo / Jason Oxenham

Opinion

Moala court case and those of many other sportspeople make it hard to believe there is one law for all.

Quite rightly, judges are able to use their discretion and elect not to convict an offender if there are extenuating circumstances. These may include the impact of a conviction on a person's occupation, which may be major or largely inconsequential. Judges must, however, exercise that discretion astutely. This has been underlined by the case of George Moala, the Blues rugby player who this week was discharged without conviction over a bar brawl assault charge. Uppermost in the mind of the judge appeared to be the consequences of a conviction for Moala, not the seriousness of his offending.

Sportspeople and celebrities routinely seek discharges without conviction on the grounds that a conviction would have a devastating impact on their careers. It is said that contracts could be ripped up and the offender could be prohibited from playing in some countries. That outcome, they maintain, far outweighs the severity of the offending. In a high-profile case a couple of years ago, this defence was tendered, also successfully, by an international polocrosse player, Casey Anne Mullany, who faced a drink-driving charge.

The consequences for Moala had to be balanced against the nature of the assault in a Karangahape Rd bar in 2012. Evidence to the jury that found him guilty recounted how he continued to attack a retreating Clifford Matoka who was concussed, suffered significant blood loss, and required surgery. This, then, was a particularly nasty assault. Judge Rob Ronayne, however, was more taken with the impact a conviction would have on Moala's career and his ability to look after his wife and 4-year-old daughter.

In doing so, he said that he was not influenced by Moala being a celebrity sportsman. It is hard, however, to escape the impression that sportspeople are too often accorded preferential treatment. That certainly is the view of University of Auckland law professor Bill Hodge, who talks of a "two-tier system of justice". Judges, he suggests, should look more critically when defence counsel seek a discharge without conviction.

For his comments, Professor Hodge received a sharp rebuke from the Bar Association. It was not appropriate, said its president, Paul Mabey QC, for Professor Hodge "to advise judges on practical matters from the comfort of academia". But considered opinions from that knowledgeable quarter are exactly what is required. Even if Professor Hodge did not sit through the Moala trial or read all the submissions, he was very able to compare this case with similar ones over the past few years.

That reveals Professor Hodge is far from alone in feeling unease. In the instance of Casey Anne Mullany, the police appealed against a decision to grant a discharge without conviction. Clearly, they felt their efforts to reduce drink-driving had been undermined, given that Mullany was caught driving at twice the legal breath-alcohol limit. Encouragingly, the appeal was successful.

New Zealanders keep being told there is one law for all people. But a reasonable person, reviewing the Moala case and others, would not conclude that everyone is treated the same.

Not all judges succumb to sportspeople's appeals. Last year, basketballer Jordina Katu failed to gain a discharge without conviction. But it happens too often for comfort. Judges need to concentrate more on the nature of the crime and less on the consequences of a conviction for errant sportspeople.