‘One law for all’ says Court of Appeal

Annette Sykes

Annette Sykes

The Court of Appeal has spoken – and it’s bad news for those who want the judiciary to consider cultural factors when sentencing Maori offenders.

The controversial issue of ‘special treatment’ for Maori lawbreakers has reared its head again in the case of a Rotorua gunman sentenced to ten-years behind bars for shooting another man in the face.

In June 2012 Cody James Fane pleaded guilty to charges of causing grievous bodily harm, unlawful possession of a firearm and possession of cannabis for the purpose of sale.

In February 2011 Fane shot his partner’s father in the face with a sawn-off shotgun after objecting to him taking his daughter to see a new-born cousin in hospital.

At sentencing, Justice Paul Heath described Fane’s offending as cowardly and extremely violent. It was pure luck his victim had not been killed.

The man had had five operations to his face and may need more.

His injuries had affected him physically and mentally. Brushing his teeth or hair was painful and he was forced to sleep sitting up in a chair to avoid pressure on his face.

Earlier this year Fane filed an appeal with the Court of Appeal against the length of the sentence on the grounds Justice Heath failed to give sufficient weight to ‘tikanga Maori’ at sentencing.  

Fane’s lawyer Annette Sykes claimed the dispute that led to Fane firing the shotgun was sparked by Fane’s perception that his parental rights were being denied. Sykes said that in Maori culture children were ‘taonga’ and formed an integral link in the chain of whakapapa – the foundation of the structural framework of Maori society.

Sykes claimed when Fane was denied access to his children he was being denied access to his whakapapa. This ‘denial of mana’ in tikanga Maori terms had a huge impact on people of Maori descent, such as Fane, to the extent that the assertion of mana by the victim over Fane’s child would have been perceived as trampling on his mana in his emotional psyche.

Relatives of Fane provided the Court of Appeal with affidavits detailing Fane’s family heritage and the frustrations he’d felt about having Child Youth and Family taking his children off him.

Fane was under pressure because his children were in CYF care. He did not understand why he had lost his children and was being ignored in the decision-making processes relating to their care, relatives said, adding that Fane saw the firing of the gun as a result of the pressure and frustrations he felt regarding his children.

In its decision, the Court of Appeal said in terms of tikanga Maori there was nothing wrong or offensive in having Fane’s children with their grandfather.

“The placing of Mr Fane’s daughter with her grandparents was not in itself an error by CYF, or culturally insensitive,” the Court found.

Fane had described a long standing problem of impulsive and overwhelming outbursts of anger, associated with feelings of paranoia and some, difficult to describe, perceptual disturbance.

These experiences appear to be much more related to the combination of his personality, his overwhelming anger and perhaps his heavy drug use.

The Court said it had considered the whole ‘tikanga’ argument, but none of the submissions filed on behalf of Fane addressed the issue of how to respond to the extraordinarily dangerous and violent act of firing a shotgun at close range at his partner’s stepfather’s head, and the terrible long-term consequences for the victim.

“A nexus between Mr Fane’s cultural background and his serious and unprovoked attack is not established, and accordingly it cannot mitigate his culpability for this offending,” the Court ruled.

cookStephen Cook is a multi award winning journalist and former news editor and assistant editor of the Herald on Sunday.

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