Shut up, Stuart Nash (with added thoughts on the Nikolas Delegat case)

Stuart Nash is trying to make political hay out of Nikolas Delegat's crime and punishment. The problem is, in doing so he's calling for the undermining of New Zealand's constitutional arrangements. That's ... not a good thing.

On occasion, I've had cause to issue some stern words to Police Minister Judith Collins about her apparent meddling in Police issues that are none of her business. So, in the spirit of even-handed, unbiased commentary, let me just say that Labour Party MP (and Police spokesman) Stuart Nash really needs to stop talking.

Here's what the NZ Herald quotes Nash as saying:

Labour's Nash said the Government should tell the Crown Law Office to appeal the "ridiculously light" sentence handed down to Nikolas Delegat for assaulting a policewoman.

Nash said Prime Minister John Key said in 2010 the Government had a duty to send the message attacks on police officers were unacceptable but he had been silent on the Delegat case.

"An attack on a policewoman who was assaulted so badly she was on sick leave for two months warrants a jail term, not continued silence from the Government.

"The Prime Minister and the Police Minister must come out and condemn the sentence as totally inadequate and state that Crown Law will appeal. This would send a very clear message that this type of behaviour against police will not be tolerated by our communities and offenders will be punished accordingly."

There's just so very, very much wrong with this. The Government can't tell Crown Law to appeal anything. That decision lies in the hands of the Solicitor General, who is a non-political appointee. As the description of the role on Crown Law's website states:

... it has long been recognised that the nature and value of the office within government lies in part on the Solicitor-General's duty to give independent advice and, in relation to certain functions [such as prosecuting and appealing cases], to act independently. That independence is of considerable constitutional importance. Such impartial advice can be seen to be given without political direction, even on politically contentious issues.

Second, Ministers cannot come out and "condemn [Delegat's] sentence as totally inadequate". Here's what the Cabinet Manual says about that suggestion:

The separation of the Executive and the judiciary under New Zealand's system of government means that Ministers must exercise judgement before commenting on judicial decisions, whether generally, or in relation to the specifics of an individual case (for example, the sentence).

Ministers should not express any views that are likely to be publicised if these views could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge. If a Minister has grounds for concern over a sentencing decision, the Attorney-General should be informed.

Following a long-established principle, Ministers do not involve themselves in deciding whether a person should be prosecuted, or on what charge. Similarly, they should not comment on the results of particular cases or on any sentence handed down by a court. Ministers must avoid commenting on any sentences within the appeal period, and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases. 

So what Stuart Nash is calling for here is Ministers to completely ignore fundamental precepts of our constitution. Now, I get why he is doing so - he's seeking to capitalise on some widespread outrage with how Delegat was treated (more on that in a moment).

But the fact is that the Government cannot and should not do what he's saying it should, and he's completely out of order to demand that it do so. Because if he wants to one day be Minister of Police, he will have to respect and abide by these rules that he's so cavalierly calling on National Ministers to ignore. Simply put, if he were the Minister, he couldn't (and shouldn't) do what he's saying the National Party Ministers ought to do - which makes his calling for this action deeply disingenuous at best, and something much worse at worst.

One additional thing on the actual question of Delegat's sentence and its fitness. I simply can't say, from a legal perspective, whether he was treated more leniently than a poor and/or Maori/Pasifika defendant would have been. We certainly know that taken across the population as a whole, poor and/or Maori/Pasifika defendants are not treated in the same way as wealthy and/or Pakeha defendants. But in respect of this particular case, I really don't know whether he benefited from that general systemic bias. And others who should know better than I (because they are involved far more often in sentencing decisions) don't seem to think that he did.

However, setting aside what Mr Delegat got at sentencing, there's one aspect to his case that kind of rankled with me. According to the ODT:

In asking for a discharge without conviction, Mr Ryan said Delegat was willing to undertake community work in conjunction with police and local authorities to address the ``rather out-of-control drinking culture'' at the University of Otago.

``Mr Delegat wants to give something back to the police and to the community,'' he said. ``He's wanting to help and mentor other young people who have problems with alcohol.''

First of all, while it is his legal right and all that, asking for a discharge without conviction in this case just seems wrong. Especially when one of the reasons given for that sought after discharge is that without it, "he would be unable to race in yachting competitions in the United States." You could hardly think up a better line if you were intentionally trying to come across as an entitled, out-of-touch spoiled brat.

Second, Delegat's attempt to deflect responsibility for his actions away from himself and towards the "rather out-of-control drinking culture" at Otago carry echoes of the statement to court from the rapist (and former Stanford University student) Brock Turner. In seeking to minimise his offending, Turner pointed to "the party culture and risk taking behavior that I briefly experienced in my four months at [University]", while saying that:

I want to show that people’s lives can be destroyed by drinking and making poor decisions while doing so. One needs to recognize the influence that peer pressure and the attitude of having to fit in can have on someone. One decision has the potential to change your entire life. I know I can impact and change people’s attitudes towards the culture surrounded by binge drinking and sexual promiscuity that protrudes through what people think is at the core of being a college student. I want to demolish the assumption that drinking and partying are what make up a college lifestyle. I made a mistake, I drank too much, and my decisions hurt someone. 

To which I can only fully endorse and repeat the following words in an ODT column (not online, apparently) from Otago student (and member of the very good Astro Children), Millie Lovelock:

I've said it before and I've said it again, there is a culture of violence among young men and universities are not exempt from this. ... Teach young men that alcohol is not the problem: they are, as long as they subscribe to toxic masculinity and violent misogyny.

As we used to say back in the '90s, "word up! Sister".