It is one thing for the general public to express disgust at the barbarity displayed by Shailer and Haerewa, and to criticise the decision to charge them with manslaughter, when the all but universal public perception, with some legal justification, is that they were guilty of murder. It is quite another for people who profess knowledge of how the law functions to claim that the justice system has been corrupted, the common view within that school of thought being that the aim was to avoid the cost of a trial.
What short memories some of these people have. Do they remember the Kahui twins? Do they remember that no one was ever convicted of their manslaughter, let alone murder? Do they remember how effective the technique adopted by those who must have been responsible for their deaths, or had knowledge of how they died, proved to be? Did they really want to gamble that the same thing would not happen here? That Shailer and Haerewa would blame each other, admit nothing and would eventually walk free?
Is it really a revictimisation of a three-year-old boy to accept pleas of guilty to manslaughter, given the chances of murder acquittals, and that the couple who killed him could have been jailed for life?
The Sensible Sentencing Trust, which has not been at all sensible on this occasion, has said that the manslaughter charges were laid after prosecutors "supposedly" decided that they could not make murder charges stick. That might well be the only rational statement made over the last week or more, despite how the law might define the crime of murder.
The key issue here is murderous intent. And as awful as the abuse of Moko might have been - he was hit, kicked, thrown, dropped face-first to the floor, bitten, stomped on and smothered, then denied the medical care that might have saved his life, over some two months - it undoubtedly leaves room for a defence lawyer to argue that Shailer and Haerewa did not intend to kill him.
The definition of murder includes that the offender means to cause any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues. Reckless Shailer and Haerewa might have been, but it is far from a given that a jury would have been persuaded that they understood that what they were doing was likely to cause Moko's death. That might be unpalatable, but it has to be considered that convictions on charges of murder were by no means inevitable. How much better then that they be jailed for manslaughter?
To what degree exactly has the justice system, prior to sentencing, failed in its duty to us? Has it failed at all?
No it hasn't, but the same cannot be said for Justice Katz. The SST has taken the charitable view that she did everything she could, the charges having been "plea bargained down to manslaughter." Wrong. The trust says that because they received finite sentences, Shailer and Haerewa could be released after nine years, or 17 maximum, with no conditions upon them whatsoever. That's true, but not because of the reduction of the charges to manslaughter. It is because of the sentences imposed.
Now we have the trust calling for the law to remove the right to silence that was so effectively exploited by those suspected of causing the deaths of the Kahui twins, and might well have been exploited by Shailer and Haerewa, and others who might have been able to give evidence. Presumably that will be accompanied by the return of the rack.
We also have calls for an end to the practice of 'plea bargaining.' That would seem to mean that the police would be bound to charge every person suspected of involvement in the death of a child with murder.
Understandable as that might be whilst emotions run high over the death of this little boy, that isn't going to happen. And nor should it. Police and prosecutors must have the ability to lay charges that not only reflect the facts of the offence but that will be accepted by a jury. If we have mandatory murder charges we will see a great many more killers walking out of court. No one wants that, least of all those who are baying for blood after what they regard as the abject failure of a system that should at least have protected Moko Rangitoheriri in death.
It all comes back to Justice Katz, who said at sentencing that, given that Shailer and Haerewa had "only" been convicted of manslaughter, she had to assume that they had not intended to kill Moko, and that they had not foreseen that their violence might cause his death. She might well have been right regarding their ability to see how their abuse would end, but that did not prevent her from handing down life sentences.
The reported fact that 17 years with nine years' non-parole is the harshest penalty ever imposed for the manslaughter of a child in this country does not absolve her. How bad does manslaughter have to be before an offender is subjected to the maximum penalty? Surely Justice Katz was not allowing for the possibility that someone will inflict even worse fatal abuse on a defenceless child at some point in the future? Therein lies what should be the source of outrage.
We have to remember though that even life sentences are not going to deter the child killers among us. No future Shailer or Haerewa is going to calculate the prospects of imprisonment before biting a child, stomping on his stomach with enough force to rupture his bowel or kicking him across a room. The law will never deter anyone who is capable of such brutality.
Whether they face nine years, 17 years or life behind bars, they will worry about that after the fact. After all that has been said, all the protests and rallies, that remains the issue. Taking vengeance after the funeral isn't going to change anything.
