In what may be a NZ first Garth McVicar of the Sensible Sentencing Trust this week took the National Parole Board to Court. This was an attempt to overturn a decision by the Parole Board to release a convicted fraudster Rob Petricevic on Parole on Monday the 7th of September. I read about the Court action Friday afternoon and learnt that the application was for a Judicial Review of the Parole Boards (PB's) decision. That late in the day I wondered how Garth McVicar could convince the Court that he could be a party of standing in the Board's decision, or if the Act, allowed situations where a party could essentially invite themselves into an action that for all intents and purposes wasn't their direct business or something which directly affected them. I certainly couldn't recall any such legislation but it seemed unlikely that McV would take such steps if he didn't have status. A quick read showed that the Act in fact did not allow such applications but that in practice the Courts would likely 'hear' the arguments before ruling on them.
What I hadn't realised was that by the time I'd read about the application was that it had already taken place. In fact shortly after the online decision was released a little after 5 in the evening - indicating that the presiding Judge most likely saw the application as pressing. The Judgement is available on line and is most notable by what was said regarding McV's application. The application appears to have been made on the basis that 2 or 3 (apparently unnamed) victims of the frauds of Petrievic may have been members of the Trust. Nothing definite on that, a surprise because a victim coming forward would have status at the very least above a political lobby group.
As it happens a wag on line said that the action was doomed to failure and was actually an effort by McV to take on the Parole Board. That might have been unkind but McVicar in recent years has attempted to take control of Judges by threatening to start a register against those of whose decisions he did not approve. There was even talk of 'outing' Judges and protesting at their homes in what was a fairly frightening turn in a modern society and which must have been near to resulting in charges being brought against McV and the SST. McV had actually threatened the Judiciary, telling them to give decisions of which he approved or watch out. All in all the fact that he was taking the case for Judicial Review in a legal way could have been either that he was chastised to the view that the Law was paramount or that he had convinced himself, or been convinced that he must take on the Courts head on - and that a Judicial Review of a Parole Board decision was a way to do that.
In other words McV was worried less about Petricevic than the opportunity to take on the Courts and flex his muscles and political power? If it was that later then choosing an attempt at a remedy that was bound to fail made little sense, nevertheless it did look like round 2 of McV versus the Law. Increasingly what his argument would be was fascinating. From sound bites it soon became clear that McVicar's 'lead' counsel against the convicted fraudster was another convicted fraudster and practicing Lawyer David Garrett who at the very least was straight to the point. He argued that the Parole Board's duty and directives were to let those eligible for parole go at the first opportunity a view overlooking many Legislative requirements. This despite that the NZ Parole system is tighter than it has even been historically, and that Petricevic had been denied parole at least once earlier and only gained parole when he had been frank and honest about his offending (having earlier downplayed it, or suggested that it was the fault of others.)
So how did this go? Well apart from not having one victim in sight to support their case, Garratt argued that fraudsters were as bad or worse than those that robbed dairies. I've no idea the relevance of that, or how a Judge could decide a case on the basis of who were the worst criminals in a clearly defined application to have Petricevic kept in prison on the basis that he 'might' have been worse that a dairy robber. The submissions included the harm fraudsters did to the elderly in particular, while these were comments with merit they were beyond the scope of a Judicial Review. Petricevic had already been sentenced for his crime, served several years and the argument was as to whether or not he should be released, and whether or not McVicar had any legitimate role in that. It appears that Garratt on McVicar's behalf paid no consideration to the telling fact that the PB had earlier rejected Parole for Petricevic on the basis that he had no insight into his offending, was self important and so on - in short did their job.
The fact that Petricevic had been able to pay for an independent psychological report from which experience Petricevic claimed to have a better understanding of himself and the harm to the victims was seen as his having 'brought' a favourable view. There is no proof of that, it is unfortunate that a professional person having formed an opinion, after which the subject of the opinion, made frank disclosures which help him gain parole - was subject to such assertions.
But back to the real reason for the Judicial Review, McVicar's chance to take on the Justice system, Judges in particular along with the Parole Board. Did he not consider that first of all he would have needed status, and that secondly a general discussion as to who the worse criminals might be wasn't relevant in an application about 1 individual's parole? Nothing to show that he did. If he missed the bus on that he also missed the bus on another argument, possibly less irrelevant. At the outset in public statements McV said the well educated (as Petricevic is apparently) were also worse because they came from privileged backgrounds but still chose to offend, whereas, it was implied, those worse off may have had less choice or power or reason in any decision to offend. Good point, and another good point (but also typically irrelevant as well to the Judge had it been made) was that those inmates who couldn't afford a private report as Petricevic was able, who had no home to go to and so on were disadvantaged compared to Petricevic. Though I guess the application was not about the fairness of Parole Board applications or distinction between the rich or poor but about Garth laying down the Law as he saw it from Garthsville, Arizona.
My last tongue in cheek comment aside, McVicar, most probably inadvertently - by his failed action did advance case Law on an important aspect of Judicial Review and the Bill of Rights. Most likely, he may not realise it, but the importance of opportunity and fairness before the Law were canvassed in the Judicial Review, at least for those that can see that.
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