1 November 2015
Kelly van Gaalen is a stand-up New Zealander – a real good sort.
Living up north in Kaikohe, she was a member of the Community Board, chair of the Community Arts Council and promotions manager for the Kaikohe Business Association. She was active in the community and led the town beautification projects. Last December, she won a Local Heroes medal.
Right now though, she’s in prison.
On the night of 14 July last year, Kelly and her three young children – aged 5, 7 and 16 – were out, and only her husband Jasper was home.
That was lucky, because that night, three men violently invaded their home.
Thankfully, Jasper was able to escape and raise the alarm.
But when Police arrived, it was Kelly who was arrested.
While looking for evidence, Police officers came across a bucket of drying cannabis and two plants.
Kelly took responsibility for it, was found guilty of possession of cannabis for supply and was sentenced to two years in prison.
Apart from the message that the Police’s actions sends to other cannabis users – don’t call the Police if you are the victim of a violent crime and have cannabis in your possession or you’ll go to jail – there are two major injustices in Kelly’s case.
The first is that judges hand down wildly varying and disproportionate sentences for drug offending.
In Kelly’s case, the judge said, “To say this sentencing has troubled me is an understatement,” but that his hands were tied and he had to be consistent with sentences imposed for similar offences.
However, there are many examples of where people have committed similar or worse crimes and been given lesser sentences. See below for examples.
Kelly wasn’t even granted bail, which is insane considering some people who are accused of committing violent crimes are.
The second problem is that the law presumes the accused is guilty until they can prove themselves innocent. Under the current system, if you are found with more than 28 grams of cannabis in your possession, the burden is on you to prove you weren’t dealing.
This goes against a fundamental rule of law that states that defendants are presumed innocent until proven guilty.
In 2007, the Supreme Court of New Zealand ruled that the presumption of supply is inconsistent with the Bill of Rights Act, and in 2011, the Law Commission recommended removing the offence of possession for supply altogether and replacing it with a non-criminal offence for simple possession.
The judge in Kelly’s case noted there was no evidence of commercial dealing, but because she had 684 grams of cannabis, the law presumed she was guilty of supply unless she could prove otherwise.
She explained that she was a regular user and had been since she was 14 years old. She grew two cannabis plants, one that had grown particularly well, she said, and occasionally gifted cannabis to friends.
A spokesperson for the van Gaalen family said, “She was a victim of an exceptional gardening skill.”
And this is the situation the law puts us in: violent offenders are given bail and lenient sentences while local heroes and mums-of-three are sent to the clink for two years for a victimless crime.
Police spend time and resources arresting and prosecuting the victims of violent home invasions that would be better spent going after home invaders.
And politicians insist there’s no need for a law change despite the Law Commission and the Supreme Court finding the law inconsistent with human rights.
The Misuse of Drugs Act fails because it allows for prosecutorial and judicial caprice, and it robs people of their right to be presumed innocent until proven guilty. It is not compassionate, nor proportionate, nor innovative. It needs to be repealed and replaced.
Ian Alfred Cole, from Westport, was convicted of cultivating and possessing cannabis for supply, as well as possession of LSD, and was sentenced to nine months’ home detention. He had over 10 times as much cannabis as Kelly had.
Johnathon Olander and Dionne Watkins, from Havelock, admitted seven charges including selling cannabis and BZP. They were sentenced to six months’ home detention.
Daniel and Hadas Surdri, from Ashburton, caught with 54 plants and more than 6 kilograms of dried canna
Krystal Katipa, from New Plymouth, was sentenced to seven months’ home detention after she was found guilty of commercial supply of cannabis and hash oil, which is a Class B controlled substance.
Sheryl Kingi, from Tauranga, pleaded guilty to possessing cannabis for supply and was sentenced to nine months’ home detention. She had 119 cannabis plants and 2.4 kilograms of cannabis.
Neil Arthur Phillips, from Kerikeri, was found guilty of selling cannabis to a Police officer on numerous occasions over several months and was given 12 months’ home detention. The judge cited the man’s closeness with his sons as a reason he avoided jail.
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