Amicus Curiae: When The Courts Wave Play-On

Jason Kim

Being a sports fan in 2015 is hard.

Not in the sense that it’s more difficult to follow and enjoy the games – in fact, with the internet providing live streaming and content from all over the globe it’s never been easier to be a Real Madrid fan in India, to be an Oklahoma City Thunder fan in Auckland, or a Manny Pacquiao fan in Argentina. No, I’m talking about the increasingly difficult moral conundrums which sports fans grapple with, and the increasingly flimsy and arbitrary internal compartmentalization which occurs in order for us to be able to justify enjoying sports where the athletes are left broken (financially, physically, and mentally) and abandoned; where corrupt officials host a World Cup built on slave labour; and buying shoes and jerseys of rapists, domestic abusers and even murderers.

I bring this up not just because the so-called Fight of the Century featured a serial domestic abuser who has largely escaped legal consequences for his actions and just pocketed a US$180 million pay packet this weekend. Much closer to home, this week Auckland Blues rugby player George Moala was discharged without conviction following an assault outside a K Road bar which left one man hospitalized. Not too many months prior, in a similar situation New Zealand Breakers small forward Reuben Te Rangi was sentenced to 160 hours of community work and $1000 in emotional reparation to the victim for an assault outside a New Plymouth bar. The maximum sentence for a charge assault with intent to injure is 3 years imprisonment.[1]

By all accounts, both incidents were truly reprehensible in their level of brutality inflicted. George Moala is claimed to have knocked the victim unconscious before continuing to strike him as he lay unconscious and bleeding on the ground. Te Rangi and his Southland Sharks teammates were accused of a “cowardly” attack on a bouncer, as the three players continued to kick and stomp the bouncer while he lay unconscious on the ground.

However, in both cases the judge considered that the consequences of a conviction would be an especially severe a punishment to levy on the precocious sports stars. Especially significant was the fact that a criminal conviction could effectively end the players’ burgeoning international careers, as they would be barred entry into many countries on the basis of their offending.

Certainly, the topic elicits a passionate response from the public. There appears to be a sense that athletes are entitled and privileged beyond that of an ordinary member of the public. TVNZ published several comments on their Facebook page which expressed outrage at what the commenters considered to be preferential treatment by the justice system of the offenders based on their status as professional athletes.

Prima facie, that line of thought does have some credence to it. University of Auckland law professor Bill Hodge noted that there appeared to be a “two tiered” system of justice where those with money, fame and influence are treated differently to “a blue-collared worker, or a shop assistant.”

There are several reasons why this may be the case. The first and most obvious is the players’ high income levels compared to the general population, which will provide the athletes will access to high quality legal representation. Salary information is hard to come by for New Zealand athletes, but both would presumably sit comfortably in the top tax bracket. Indeed, it was reported that one of the Southland Sharks were represented by Ron Mansfield, one of the top criminal barristers in the country, while another was represented by a QC. George Moala was represented by Paul Wicks QC.

Moreover, in sentencing hearings judges will place a good deal of weight on character testimonials from members of the community, and will view offers to make amends through community work or financial restitution for their offending favourably.[2] Athletes will naturally find these easier to satisfy than say, a builder or someone on welfare: coaches (with a vested interest in seeing their player back on the field) will provide glowing testimonials of their work ethic and attitude; and there are plenty of opportunities for sportsmen to fulfil their community service obligations with a cushy speaking gig at a coaching clinic.

It’s certainly a concern that those with money and power are treated differently than those who are poor and marginalized. Especially so for young male offenders from a Maori or Pacific Island background, where it is well-documented that such offenders receive disproportionately harsher sentencing than the general population for committing the same crime. However, that shouldn’t necessarily imply that we must demand harsher sentences for someone like Moala or Te Rangi. As much as some members of the public may scoff at the judges’ reasoning, it is undoubtedly true that these young men have bright futures ahead of them, and imposing a prison sentence which would inhibit their ability to contribute to society serves no one’s interests except to satisfy those on the internet wielding virtual pitchforks. The discussion we should be having isn’t so much that athletes are getting off lightly, but instead draw attention to the fact that young men across New Zealand who were not fortunate enough to be bestowed with the ability to score a try or dunk a basketball are being disproportionately punished for similar crimes as those who can.

That is the true injustice here – that our justice system works as it is intended to (with compassion and an eye towards rehabilitation) when the offender can afford the most skilled lawyers to represent them, but that the ability to obtain such representation can be based on something as arbitrary as how fast one can run and how high one can jump.

[1] Crimes Act 1962, s 193.

[2] Hall’s Sentencing (online looseleaf ed, LexisNexis); Sentencing Act 2002, s 9.

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