Where's the line between error and crime? If you want to be lenient towards the Lombard Four because they made a simple mistake, then hardly anyone deserves to be locked up
Just a mistake. A misjudgment. Surely not criminal. So says Stephen Franks, and I'm sure others, in response to the sentencing of the four Lombard directors this past week. The line goes that the shame, and perhaps civil damages, are as far as society should go in punishing these otherwise decent men. I'm not buying.
Former justice ministers Sir Doug Graham and Bill Jefferies, plus Lawrence Bryant and Michael Reeves, were sentenced on Thursday to community service; Graham and Bryant were also ordered to pay $100,000 each in reparations.
Justice Robert Dobson said in his summation that unlike some other finance company directors, these four were not guilty of intending to mislead investors, but had simply failed to act quickly enough to alert investors to the company's "deteriorating liquidity" - aka the fact it was losing money hand over fist.
For more than three months they knew of the problems, but didn't declare them, so investors were flying blind.
So is that just an accident? No, these men chose to act contrary to the law. They didn't slip on a banana peel and accidentally harm someone. They weren't tricked into defrauding someone by a prince from Nigeria. They made a decision, one that was against the law.
How is that different from any other crime? Isn't that "conscious wrongdoing"? Why should these men be treated any differently from our stereotypical unemployed man from Otara who got into a fight or drove a car drunk or based his wife?
As Financial Markets Authority CEO Sean Hughes said on Q+A:
"[Investors] were entitled to believe and trust in the names that encouraged them to invest in those ventures. We would say that perhaps the sentences did not reflect what we think… was the sort of outcome we were looking for, but at the end of the day, that’s the decision of the court, and we respect it"
Franks told Morning Report this week:
"I think the criminal law should deal with bad people. But the problem is it’s got involved in an area, where as the judge clearly said, this was just a mis-judgement…”
Except that most crime is the result of a series of mistakes and errors of judgment. Even bad luck. Heck, over 50 percent of all crime in New Zealand is committed by someone who's drunk or high.
You only have to sit in court for a few hours and hear the pitiful stories to start thinking, 'if only he hadn't chosen to have those extra couple of cans... If only he'd chosen to walk home... If only the punch had missed or he'd swerved left instead of right'.
No-one is just simply "bad" and anyway, that's not the test in law. The question is if, for whatever reason, they broke the law. Whether via ill judgment or some inherent genetic badness is irrelevant.
The only convicted murderer I've met was a guy who drank too much as a 16 year-old, trying to impress. People started getting lippy, the pushing and shoving got out of hand, he picked up a knife... next thing you know you can hardly remember the details but you're in Paremoremo until you're 30.
What's that story but a series of misjudgments?
My point is not whether that's deserved or meant to disrespect victims; my point is that the court must be consistent and 'I didn't mean it' or 'I've been good all the other times' has never been a reason to avoid a conviction.
Wouldn't the family of most convicted criminals be able to give examples of how their men where otherwise decent and honourable. Isn't he a stalwart of the local league club? Hasn't he produced a couple of fine boys? Wasn't he there for his mate when his mum died?
The court can always consider such things as mitigating circumstances, but it's a matter of consistency. The court should only give as much weight to the contribution these finance company directors have made to business as they do to the contribution 'everyday' defendants make to their communities of interest.
Sympathy for these men reeks of a different standard for people who are like us - people who make the sort of mistakes others in the middle and upper classes could imagine making.
'Getting falling-down drunk and stabbing someone in the street is beyond my ken - lock 'em up! But not telling potential investors my company's leaking money like a sieve? That's a mistake I could have made - be gentle!'
This is a vital principle, surely. I've got nothing against the Lombard Four. I've met Sir Doug several times and enjoyed his company, his intelligence and wit. He had a stand-out - even brilliant - political career. Recognising the political truth that Nats can get away with more left-looking policies than a Labour government can (and vice versa), he made historic progress on treaty claims and delivered much-delayed justice for many thousands of Maori. His bravery cost him within his own party, but he did what was honourable.
So no, I don't think he should be stripped of his knighthood. Not unless you're also going to take Sir Michael Fay's and any number of other honourees who have been less than perfect in some way.
But the quality of the man doesn't undermine the validity of the principle. From what I know of him, Sir Douglas is the sort of man who would probably argue that himself (even if he believes it doesn't apply to him in this case).
We don't get to pick and choose under the rule of law. If you break a law, you are punished proportionately, no matter who you are or what others might think of your offending. Protecting that principle is surely the best way to protect the law.