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McCarten Family Report - Death Of Georgia Tawera

McCarten Family Report
with Court of Appeal addendum
June 2003

On 20 February 2003, Georgia Tawera McCarten-Graham - aged 4 years and 3 days - was killed by a man driving his car.

This report details the events that followed this. It highlights the difficulties that the McCarten family encountered within the justice system of New Zealand, and provides recommendations on how these difficulties may be overcome.

Who the authors of this report are is not important. There are many authors.

Those who have contributed are more concerned by what is in the report rather than their roles in the making of it or receiving any credit for doing so. Anyone wanting clarification on anything in this report may contact: John McCarten, email: john@artantech.net. Please understand if you do not get a reply, we also have a living to make.

This document is placed in the public domain on Thursday 26 June 2003. It may be reprinted, copied or otherwise distributed in any form without any further permission being sought, provided that the words and their meanings, are not changed, altered or misrepresented to mean something other than they do in this document.


CONTENTS
1) Summary of key recommendations...............................................................2
2) Introduction........................................................................................................4
3) Notification of parents when their child is killed...........................................6
4) Quality of advice given to victims...................................................................7
5) The Restorative Justice process................................................................. 10
6) Administration of the Restorative Justice process ................................... 15
7) Why you only get one year in prison for killing someone ........................ 18
8) Justice for all victims in this case................................................................ 23
9) What about the money? ............................................................................... 26
10) Notification of appeal hearings ................................................................ 33
11) Court of Appeal action and remedies..................................................... 34
12) Media responsibility when a child is killed. ............................................ 36
13) What we do not need................................................................................ 38
14) What we must do....................................................................................... 39
15) An open letter to the driver of the car - Ding Yan Zhao....................... 40
Appendix A: Transcript of the letter of offer from the Zhao family lawyer. . 41
Addendum to Court of Appeal action and remedies. ...................................... 42


Note: This report is divided into 15 sections. Paragraphs within each section are denoted by a number enclosed in square brackets on the left of the page. The numbering of paragraphs begins at [1] for each section.

Section 1

1) Summary of key recommendations.

The key recommendations made in this report are summarised and grouped by category or agency:

COURT OF APPEAL

[1] Section 11: Our family wants nothing to do with the $40,000 considered to be reparation by the High Court. We believe it to be blood money and we have recommended to Georgia's kindergarten that they should not accept the money. The kindergarten have declined to accept it.

[2] Section 11: The Solicitor General must appeal the High Court decision to the Court of Appeal, if only to correct the record.

CROWN

[3] Section 7: When an offender is convicted on a charge of causing death, the Crown should actively seek a sentencing starting point approximating the maximum penalty. The authority to do this is already in the legislation.

DEPARTMENT FOR COURTS

[4] Section 6: There are a number of agencies involved in dealing with victim support and reparations in a criminal case. Each agency follows its own timetable and procedures when dealing with victims. No one has overall responsibility for managing the entire process from the victim's perspective. A case manager should be provided by the Department of Courts to take overall control of the case as it impacts on victims and their lawful rights.

[5] Section 6: There are no formal processes in place to guide victims in resolving any differences they may have between them before they enter into Restorative Justice with the offender. A victims rights resolution process should be established.

[6] Section 6: A legally trained Victims Mediator should be employed by the Departments of Courts to mediate between victims who may have differing views on entering into Restorative Justice or on reparations that may be offered by the offender. The mediator should also be available to advise victims on their lawful rights.

[7] Section 6: Cases should not be referred by a Judge directly for Restorative Justice. Where a Judge feels that Restorative Justice might assist the victim(s) in a case, it should be referred to the Victims Section 1

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Advisory Service so that the victims can decide if they want Restorative Justice.

[8] Section 6: In cases involving multiple offences affecting multiple victims, a separate Restorative Justice process should be linked to each offence, allowing victims to participate on the basis of how they, and only they, are directly affected.

LEGISLATION

[9] Section 6: In cases involving death there is no primary victim. All members of the affected family have the same rights as the parents. A primary victim should be defined in the event of differences between victims. The primary victim should be the "custodial parent" as defined by the Guardianship Act 1968.

[10] Section 7: Section 160 of the Crimes Act 1961 should be amended too specifically include dangerously driving a car as culpable homicide.

[11] Section 9: Monetary reparation to third parties as a voluntary act of remorse by the offender should be made before the sentencing date - and no offers or promises to pay reparation to third parties at the time of sentencing should be accepted.

[12] Section 9: Judges should be able to take into account the fact that monetary reparation has been paid as mitigation (the current law).

Judges should not be able to consider the amount of money paid as a mitigating factor.

[13] Section 9: The law should not allow an appeal against a sentence on the grounds of the amount of reparation paid MEDIA

[14] Section 12: From this case, the media should note the traumatic effect that publication of images of a dead child at time of death, can have on the mother. The media's voluntary code of conduct should be amended to require that permission from the custodial parent be obtained before publishing any images of the child.

POLICE

[15] Section 3: The existing duty of the Police is to inform the next-of-kin in times of death. The duty of the Police should be to inform both parents (legal guardians) of a child, when the child is killed.

Section 2

McCarten Family Report - June 2003 Page 4 / 42

2) Introduction

[1] This report identifies and provides recommendations for the problems that we, the McCarten family, have encountered within the New Zealand justice system as we have tried to come to terms with the loss of our child - Georgia Tawera McCarten-Graham.

[2] It is best to explain at the start, that there are four families who have been victimised here: (i) The McCarten family of whom Chantel, mother of Georgia, is a member.

(ii) The Graham family of whom Cameron, father of Georgia, is a member.

(iii) The Wilson family of whom Jeremy, father of Finn - Georgia's little brother - is a member.

(iv) A fourth family who also had a member seriously injured at the time.

[3] Chantel McCarten and Cameron Graham were never married. They lived together. It did not work out and they split up when Georgia was six months old. Chantel raised Georgia by herself from then on.

Chantel met Jeremy. They live together and are engaged to be married.

Their son Finn was born 22 months ago.

[4] Chantel has always recognised the importance of the bonds between Georgia and her natural father and the bonds between Georgia and the other members of the Graham family. She continued to share Georgia with them throughout her life. Cameron took Georgia to Hawke’s Bay to visit with his family from time to time.

[5] Georgia has three sets of grandparents and many uncles, aunties and cousins and we all loved her dearly - we still do.

[6] This is the McCarten family report on how the events surrounding the death of our child, have impacted on us. We have tried our best when writing about these matters to be as dispassionate as we can. It is important that it is the matters raised that are the focal point, and not our emotional response to them. However, this has not always been possible. Our emotions do creep in at different times.

[7] This is also a story of another of our children - Chantel. She who has lost that most precious to her and us.

[8] Chantel McCarten, mother of Georgia, who said from the very outset: "He did this. Not his parents and not anyone else. He did it and only he must be punished for what he has done." Section 2

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[9] "He" being Ding Yan Zhao, the driver of the car - the man who took Georgia's life. All Chantel wanted was for Mr Zhao to be punished according to the law and nothing more.

[10] Chantel very clearly said "No thank you" to everything that was offered to her by the Zhao family. She repeated these sentiments and these words over and over again to everyone that she spoke to. Yet she was not heard.

[11] "No thank you" - a simple phrase that flummoxed the New Zealand justice system, and ultimately sent our country into a spin.

[12] We attempt to show what happened, point out the difficulties we encountered, and provide recommendations on how these may be overcome. Most of these matters are easily fixed by the provision of informed advice for victims and simple procedural, administrative or regulatory changes.

[13] A problem with the Sentencing Act 2002 impacted on us severely. This problem can be overcome by a legislative change to the Act without altering its overall intent.

[14] Please understand when reading this, that every Police officer and Department for Courts person we have met has been warm and compassionate, unfailingly courteous and has done their utmost to help us. And we have acknowledged this at times in writing and commended people to their superiors. Any criticism of people in this document is not a reflection on them as individuals or as members of their respective services, but point to systemic failures in the organisations they work for.

We mean not to offend anyone but sometimes there are things that cannot be said any other way.

Section 3

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3) Notification of parents when their child is killed

[1] What happened?

[2] The Police arrived on the scene and found two injured adults and one dead child. The Police correctly assumed that the child was related to the adult male victim - Cameron Graham. They contacted his family and informed them of what had happened.

[3] Any Police officer will tell you that their duty is to inform the next-of-kin in times of death. The Police did their duty in this case by informing Cameron’s mother. They did not contact Chantel, Georgia’s mother. It was left to Cameron’s mother to inform Chantel.

[4] A senior Police officer that we consulted on this matter told us that the decision to leave it to the father's family to inform Chantel was a discretionary one made by the officer at the scene.

[5] It is hard for a Police officer to tell anyone that his or her child has been killed. Imagine how hard it was for Cameron’s mother to make that telephone call when she herself was trying to cope with her own grief over Georgia’s death and the worry of a seriously injured son. Had she not found the strength to make that call, it is entirely possible that Chantel could have found out about the death of her daughter by reading the next morning's newspaper, which published images of the crash scene and included the names and details of the victims in the text of the accompanying story.

[6] We would have much preferred that a Police officer had broken the news to Chantel and not Cameron’s mother. Why?

[7] Firstly, it is not fair that Cameron's mother was put in this position. She had enough anguish and pain of her own to deal with. Her son was critically injured and her only grandchild was dead; she should not have been left to carry out the traumatic task of telling Chantel, on the telephone, that her daughter was dead.

[8] Secondly, our family cannot comprehend what would have happened had Cameron's mother simply not been able to contact Chantel because of her own shock and trauma.

Recommendations on notification of parents when a child is killed.

[9] The duty of the Police must be to inform the legal guardians as defined by the Guardianship Act 1968 when a child is killed. The Police regulations must be changed to state this. The discretionary element that currently exists must be removed.

Section 4

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4) Quality of advice given to victims

[1] What happened?

[2] Nothing at first. No one from the Department for Courts informed us that Mr Zhao was appearing in Court to plead. We learned about his pending Court appearance from the Graham family.

[3] At the Court hearing, Mr Zhao pleaded guilty to the charge of dangerous driving causing death, and guilty to two charges of dangerous driving causing injury. He was remanded on bail for sentencing two months later.

[4] After the Court hearing we were introduced to the Court’s Victims Advisor by Cameron's uncle who was also there. Until this happened we did not know there was such a person.

[5] Along with Cameron's uncle, the Victims Advisor took us to a room in the Court building. She told us that the Judge had referred the case to the Restorative Justice process. She did not explain why this had been done, nor did she explain on what basis was this decision made. Only that the Judge had done so. We did not think at the time to ask these questions.

[6] The Victims Advisor told us that the Zhao family was willing to participate in a Restorative Justice Conference and that through this process we would meet the offender and his family face to face and that they would offer an apology. The Victims Advisor also said that the Zhao family had expressed a wish to give us money to help meet the cost of Georgia’s funeral expenses and a further sum of money as a memorial to the memory of Georgia.

[7] Chantel said "No thank you” to all of these things.

[8] Restorative Justice Conference: "No thank you, I do not want to meet this man, what can he possibly say to me?”

[9] An apology from the offender and his family: “No thank you, I do not want an apology from him, what can I possibly say in reply?”

[10] Money for Georgia’s funeral and a memorial: “No thank you, I do not want any money from him or his family, it's not right." Section 4

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[11] What Chantel also said was "I saw him in the Court, he pleaded guilty and he looked sorry. This is enough for me. I have no desire to see him again or to speak with him.

He did this. Not his parents or anyone else. He did it, and only he must be punished for what he has done."

[12] The Victims Advisor then began talking more about the Restorative Justice process and about how other families had found it beneficial and that we should take time to think on it further.

[13] Chantel asked her if we could write letters to the sentencing Judge. The Victims Advisor said we could and that if we gave them to her, she would make sure that they were given to the Judge.

[14] We asked her further questions about the Restorative Justice process.

The who, what, when and how questions. It soon became apparent to us that the Victims Advisor’s knowledge of the law and technical matters was limited.

[15] She suggested that it would be better for us to meet with the Restorative Justice people "as they know more about it". This was not good advice, as the following sections of this report will show.

[16] Given the difficulties we went on to encounter it would have been best for everyone if she had been able to say "I can arrange an appointment for you with a victims rights lawyer who will be able to answer your questions more fully."

[17] Had the Victims Advisor not referred us to the Restorative Justice people for advice, we would not have had to engage in any further discussion about proceeding with the Restorative Justice process - a process we quickly found we did not want to be involved in.

[18] Victims must have quality legal advice made available to them at the outset. Cases involving death and serious injury resulting in multiple charges are complex.

[19] Some of the advice the Victim Advisor did give us we later found was not correct. For example, we found out several weeks later that letters from victims to the sentencing Judge are not delivered to the Judge via the Victims Advisor; they are attached to the official victim impact statement included with the Police case file.

[20] The Victims Advisor that dealt with us is a really caring person and we have no criticism to make about her as a person. She was compassionate and courteous at all times. As we got to know her over the ensuing weeks we learned that her background is in grief counselling. Grief counselling is an important part of the process and many people do not have the support of family they need at times like this. For our family we did not need this - our grief is our own - and we Section 4

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will handle it with help from our extended family, those closest to us and our family physician.

[21] What we needed from the Victims Advisor at that time was well-informed advice on our lawful rights as victims.

[22] It is unfair that the Department for Courts provided us with a person without legal training to advise us on our lawful rights as victims. It is also unfair that the Department for Courts expected a layperson without legal training to be able to advise us on our lawful rights as victims.

[23] A booklet and the advice of a layperson - no matter how many training seminars that person has attended - are simply not good enough. Even judges are struggling with this law, so what hope is there for others with nowhere near their knowledge and experience.

Recommendations on quality of advice given to victims

[24] The Department for Courts must make available to victims, a person with legal training who can properly advise them of their rights before they come into contact with the Restorative Justice process.

[25] Refer to Section 6 of this report on how this recommendation can be implemented.

Section 5

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5) The Restorative Justice process.

[1] What happened?

[2] The question that we are now asking is whether it was appropriate for the Judge to have referred our case for Restorative Justice processing at all. What could Restorative Justice achieve for our family when our little girl is dead? What can be "restored" to us when her life has been extinguished?

[3] Referral to Restorative Justice in our case was inappropriate. Had the Judge not done this, the anguish of the next few months would have been much reduced.

[4] It is only now that we understand that the Restorative Justice process is being piloted in New Zealand at the moment and that the trials have not yet been evaluated. Hamilton is one of those four pilot areas along with Auckland, Waitakere and Dunedin. Given our experience we would hope that our case was not referred to this process simply to see what would happen.

[5] We met with two Restorative Justice people some weeks after the conviction Court hearing. Again, the people concerned were warm and compassionate people with a difficult task to perform. Our criticisms are not about them as people - we are critical of the systems in place.

[6] The very first thing they said was that they were from a private company contracted by the Department for Courts to carry out the Restorative Justice process. They were straight up about this from the very outset.

[7] The people explained that they were employed to organise a Restorative Justice Conference between the offender and his family and the victims and their families. The Zhao family was prepared to attend this conference. Mr Zhao and his family wanted to offer their apologies and they also wanted to offer us money. They informed us that it was our choice to attend the conference or not.

[8] They told us that a report would be written on what happened at the conference and given to the sentencing Judge. It was explained to us that the Judge would take the contents of that report into consideration when deciding on Mr Zhao’s sentence. We were also told that Mr Zhao could receive a reduction of his prison sentence for participating in the conference and for any reparations that he or his family made - that this would be for the Judge to decide.

Section 5

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[9] Chantel was clear that she did not want to enter into the Restorative Justice process and told them: "No thank you, I don't want to do this. I want no apology. What would I say to him? “It's alright mate, don't worry about it.” Or do I turn my back on him and add more suffering to his parents who will be there? His parents didn’t do this, he did. It's not fair on them to have to pay money for what he has done. I don't want any money.

It's horrible just thinking about it. I want nothing from his family. He did it, not them. He has to be punished for killing Georgia and no one else. I just want to write a letter and ask the Judge to send him to prison because he did it."

[10] Our family wanted old-fashioned justice. We wanted the offender punished for his crime - not his family.

[11] Cameron, Georgia's father, also said that he did not want anything from the Zhao family and told Chantel this on the phone. He also told her that he had written a letter to the Judge stating this and given the letter to his mother to deliver. Cameron then left the country and went overseas to grieve alone. Chantel, Georgia's custodial parent, was left to deal with any further matters herself.

[12] After the meeting with the Restorative Justice people, life became very difficult for everybody - especially Chantel.

[13] The difficulty arose because despite the fact that Chantel, Georgia’s mother, did not want to proceed with the Restorative Justice process, another person in the Graham family, who was not Georgia's father, decided that it might be an appropriate way for them to deal with Georgia’s death.

[14] We were informed that so long as one victim wanted a conference, it would go ahead. The current rules are that if the victim is dead, family members of both the victim’s mother and father are then defined as “the victims”. Under this definition, all family members have equal rights.

[15] In our case it meant that the views of Georgia’s mother not to proceed with the Restorative Justice process were ignored because one member of the Graham family, who was not Georgia's father, wanted to go ahead with a Restorative Justice Conference.

[16] This seems to us to contradict the basic principles of Restorative Justice.

Ie. Victims should enter into the process voluntarily and that if a victim decides not to participate, the conference will not proceed.

[17] The Restorative Justice people had also been in contact with another victim from the petrol station who had been injured by Mr Zhao. This person said that she would like to meet with the offender at a conference. She also said that what had happened to her was nothing Section 5

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compared to what had happened to Georgia and, that she would go along with whatever Chantel decided to do.

[18] Our family was left with the problem that a process was being entered into that only one member of another family wanted. The Restorative Justice people told us that any victim is able to have a Restorative Justice Conference with the offender and accept from them whatever is offered as reparation - apologies, money etc. A report would be written on the conference and it would be given to the Judge and he would take it in to consideration when deciding the sentence.

[19] We found that extremely hard to deal with. We wanted the Restorative Justice process stopped and they were basically telling us that the views of Chantel, Georgia’s custodial parent - and our family were irrelevant as long as another "victim" wanted to proceed.

[20] The Restorative Justice people were clear about their role: "We are not charged with stopping the Restorative Justice process.

We are only charged with carrying it out."

[21] A lengthy debate then ensued between our family and the Restorative Justice people. They advised us that under the present law, there is no primary victim. When a victim dies, the Sentencing Act 2002 defines all members of the victim’s immediate family as "victims" with equal rights.

That gives every family member the same rights as a dead child's mother. It also means that if anyone in the immediate family wants to face the offender and his family through the Restorative Justice process, a conference will be organised for them.

[22] Our plea is that if the parents of a dead child do not want to enter into the Restorative Justice process, then it should not be entered into. No other family member should be able to force it. The families of the deceased child are victims for sure, but the birth parents have lost their child and their needs must be met at this critical time.

[23] At the end of the debate the Restorative Justice people withdrew and left it up to us to negotiate with the other family's member who wanted to proceed.

[24] Before leaving, the Restorative Justice people assured us that nothing would be done unless Chantel agreed. However, it took further telephone calls to Chantel from the Restorative Justice people for them to be assured that she really meant "No thank you."

[25] Chantel spent many torturous and emotional hours on the telephone negotiating with the member of the other family - appealing to not proceed.

Section 5

McCarten Family Report - June 2003 Page 13 / 42

[26] Chantel was very clear that she wanted no part in the process and that she wanted no apology or money from the offender or his family: "No one, absolutely no one, not me or anyone else, is going to take any money from the Zhao family because of what has happened to Georgia. It is blood money. It is obscene. It will not happen."

[27] Chantel also decided that if she were unable to get the Restorative Justice process stopped, then she would attend the conference to make sure no money was accepted.

"I do not want to meet this man. I dread the thought of it. But I will go to any conference to tell the Zhao family not to give anyone any money for my daughter's death."

[28] It took a three-hour phone call by Chantel to the person in the Graham family who had favoured the conference to finally persuade that person not to proceed.

[29] Remember this is the mother of a child who has died having to negotiate out of a process that she did not want to be part of. We are still bewildered that nobody from the Department for Courts lifted a finger to help her.

[30] It is just not good enough. This is a case involving the death of a young child. There are multiple charges. There are multiple victims. There were four families involved, all deeply distressed about what happened to their loved ones. We were all abandoned by the Department for Courts to sort it out ourselves. Where were the mediation skills of the department when we needed them? If this process is about victims having a say - why was there no one there to listen?

[31] Nobody from the Department for Courts has overall responsibility for the victims’ rights resolution process. In fact, there is no such process.

[32] The Victims Advisor's role is to provide advice on the law and Court procedures and to advise on Court events. The Restorative Justice people's role is to organise conferences for those who want them and to report what happens at them to the sentencing Judge. Victims Support volunteers offer help and support on a personal level. The Police take victim impact statements and victim’s letters and forward them to the sentencing Judge with the case file. It seems to us that each agency does its own thing and there is no overall co-ordination.

[33] There is no victims rights resolution process, it appears that there is no one in charge, there is no case manager, and there are no rules or procedures in place to guide families in multiple charge cases like this one. Nothing was done by the Department for Courts to help us work through very complex and emotionally charged matters. We had no real Section 5

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idea about the roles and responsibilities of the various agencies involved.

Recommendations on the Restorative Justice process.

[34] Section 6 of this report provides our recommendations for fixing the problems identified here.

Section 6

McCarten Family Report - June 2003 Page 15 / 42

6) Administration of the Restorative Justice process

[1] What happened?

[2] Nothing happened. There was no administration.

[3] The Department for Courts must take hands-on control of victims' rights resolution processes, Restorative Justice processes and victim impact processes.

[4] Private companies contracted by the department should not, by default or by departmental neglect, be in control of any of these processes.

There is no other way to say this; there is potential for conflict of interest here. The contracting companies get paid to organise Restorative Justice Conferences.

[5] As we have said, the people we met on our journey through the justice system were warm, compassionate, honest and straight up in their dealings with us. But without any victims’ rights resolution procedures in place, when the mother of a dead child said "No thank you" no one listened.

[6] And in this case the whole Restorative Justice process collapsed, and the victims emerged more bruised and battered than when they went into it.

Recommendations on administration of the Restorative Justice process

[7] We recommend that the Department for Courts issue procedural guidelines, detailing the processes to be followed, to help resolve victims rights in matters of reparation.

[8] We recommend that a legally trained Victims Mediator be provided to advise victims on their lawful rights and to help resolve any differing views that victims may have on reparation.

[9] A Victims Mediator is going to be required even in cases involving just the one family. Why? A mother may want to participate in Restorative Justice - a father may not. Or vice versa. In cases like this with emotions running high, a dispassionate professional must step in to help resolve things.

[10] In cases where a child dies and differing views of victims cannot be reconciled, we recommend that the legal definition of "custodial parent" as defined by the Guardianship Act 1968 be applied, when the answer is sought to participate, or not, in the Restorative Justice process.

Section 6

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[11] With a legally trained Victims Mediator available, we recommend that the Victims Advisor role be redefined as Victims Liaison: (i) To act as the case manager.

(ii) To arrange Victim Support grief counselling services for those who need them.

(iii) To arrange for victims to be advised of their lawful rights by the Victims Mediator.

(iv) To initiate victims rights resolution processes under the auspices of the Victims Mediator.

(v) To initiate Restorative Justice processes once given the go-ahead by the Victims Mediator.

(vi) To take victim impact statements (relieve the Police of this duty).

(vii) To liase between the various agencies and ensure that their services are provided to the victims and the offender as and when required.

(viii) To liase between the victims and the offender.

(ix) To collate all documents relating to victims, including offers of reparations, and forward them to the Judge, the crown and the defence as appropriate.

(x) To notify Court happenings and be pro-active in ensuring that timely notifications are received and forwarded to victims.

(xi) And any other case management duties as may be required.

[12] We recommend that all victims’ rights resolution processes must be carried out before the Restorative Justice process with the offender begins.

[13] We recommend that cases involving the death of a child, should not be referred for Restorative Justice by the Judge, unless the legal guardians of the child (or the custodial parent if not mutually agreed) specifically agree to do this.

[14] When the guidelines are being drafted we recommend the following be considered. In our case, there were multiple victims and the driver faced three different charges: (i) Dangerous driving causing the death of a child (ii) Dangerous driving causing serious injury to her father (iii) Dangerous driving causing serious injury to another person.

[15] Had the Restorative Justice process been separately linked to each charge, it would have made it a lot easier for everybody - including the sentencing Judge.

[16] On the first charge there would have been no entry into Restorative Justice because Georgia’s mother did not want it.

Section 6

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[17] On the second charge the father’s family could have had a Restorative Justice Conference on what had happened to their son, if that is what they wanted.

[18] On the third charge the other person who was injured and her family could also have had a Restorative Justice Conference as they may have wanted to.

[19] The people organising the Restorative Justice Conferences would have only had to remind people why they were there. Neither the offender and his family nor the victims and their families could have used what had happened to another person or victim as a basis for any reparation that may be offered or agreed on.

[20] Had this process been in place then the sentencing Judge would have got three different Restorative Justice reports with possibly three different outcomes. When considering the penalty for each of the three separate offences the Judge would have only had to consider the reparations made as they applied to each offence. This would have made his job a whole lot easier.

[21] Our plea to the people who may be charged with working toward implementing solutions to these problems is this. Please do not get bogged down on adult deaths and/or personal injury cases. Get the procedures and systems in place to deal with the death of children as soon as possible and then worry about the rest later. It is too hard on the parents the way things are now, so please get this fixed as quickly as you can.

Section 7

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7) Why you only get one year in prison for killing someone

[1] What happened?

[2] The driver of a car killed a child and seriously injured two other people.

For this the sentencing Judge gave him two years in prison. The appeal Judge reduced this to one year because this is the penalty in this country today for killing someone with a car.

[3] In our letters to the sentencing Judge we asked that the man who had killed Georgia be punished to the full extent of the law. As it turned out the sentencing Judge did this and more. He gave him the full extent - one-year - and then he doubled it for good measure. While we believe that two years in prison for killing a child of our family was a bit miserable, we now see that at least on this occasion we had been heard.

[4] How is it that the penalty for killing someone with a car is only one year?

[5] The reason Mr Zhao got one year in prison for killing Georgia with his car was simply because he was a bad driver. The primary concern of the Courts was what he did wrong by law. What Mr Zhao did wrong was to wrongfully drive his car. The fact that he killed a child was only a consequence of what he did wrong.

Justice Randerson [32] "... The maximum sentence of five years reflects the gravity of the consequences where death or injury has resulted, but the true focus of the Court must be upon the manner of driving and the appellant's culpability in that respect. The consequences are certainly not to be ignored and are plainly a factor to be considered in the overall assessment."

[6] So the Judge took the fact that Mr Zhao killed a child into consideration when determining his sentence. But he was charged with 'dangerous driving causing death' and on this charge could not actually be directly punished for killing Georgia with his car, as "the true focus of the Court must be upon the manner of driving". When charged with manslaughter or murder, yes you can be punished directly for killing someone. But with driving causing death, no you cannot.

[7] So what can we do about this?

[8] Let us look at the three ways you can kill someone with your car, other than murder or manslaughter.

(i) Careless driving causing death.

This is when you are backing up on the forecourt of a service station and you do not see a child behind you and you run the child over.

Section 7

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(ii) Reckless driving causing death.

This is when after filling your car with gas; you drop the clutch, go for the big burnout, lose it completely and run a child over.

Probably dangerous, but mainly stupid.

(iii) Dangerous driving causing death.

To face this charge - as Mr Zhao did - you having been hooning along all afternoon, cutting up other cars, driving through road-works at high speeds, overtaking on blind corners and yellow lines, forcing a Police car to take evasive action, driving at 110kph in a 50kph area while looking for somewhere to stop for refreshments, and slamming your car at high speed into the last of the places in town that does provide the refreshments you are looking for, killing a child.

[9] We consider what happened to be manslaughter. Section 160 of the Crimes Act 1961 states "(2) Homicide is culpable when it consists in the killing of any person - (a) By an unlawful act; or (b) By omission without lawful excuse to perform or observe any legal duty; or (c) By both combined,..."

[10] Was Mr Zhao performing or observing his legal duty in driving his car in the manner that he did?

[11] But this was not our decision to make. The Police and Crown Law Office looked at it and decided that it was not manslaughter, and charged the driver with “Dangerous driving causing death”.

[12] The difficulty for the Courts is that all three driving charges; Careless, Reckless and Dangerous are about the driving behaviour of the offender, not about the fact that someone has been killed.

[13] We do not want to get into an endless debate over the finer points of these charges. What we do want to do is to help to get the focus off the driving behaviour of dangerous drivers and onto the fact that someone got killed.

[14] Consider these two situations:

[15] A man rushes into a crowd of people on foot, and begins flailing about with a stick. He does not mean to hurt anybody. He is just out there flailing about with his stick, ignoring their protestations and their efforts to get out of his way. He loses control of his stick and kills someone. What happens to him? Does he get arrested and charged with being a bad stick flailer? No he does not.

[16] A man rushes into a crowd of people in cars, and begins flailing about with a car. He does not mean to hurt anybody. He is just out there Section 7

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flailing about with his car, ignoring their protestations and their efforts to get out of his way. He loses control of his car and he kills someone.

What happens to him? Does he get arrested and charged for being a bad car driver? Yes he does.

[17] Reading this you might think that this is most unfair on the man with the stick.

[18] The question to ask is what is the practical difference between the two?

[19] We believe that the charge should be based on the fact that what you did wrong by law was that you actually killed someone. How did you kill them? You were driving dangerously in your car. Flailing about, as it were.

[20] We believe that society is scared by the fact that we are all of us, capable of accidentally killing a child in our car and we think, "this could happen to me."

[21] But there is a world of difference between careless driving causing death and dangerous driving causing death. Only those among us who do not care for the safety of others will ever get charged with dangerous driving causing death.

[22] If, as responsible citizens and car drivers, we appreciate the difference between driving carelessly and driving dangerously, then the Courts will appreciate the difference also.

[23] The authority to do this is already in the legislation.

[24] Section 8 of the Sentencing Act 2002 states "In sentencing or otherwise dealing with an offender the Court - ...

(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and (d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; ..."

[25] Had Section 8 been considered more fully by the Crown Prosecutor when asking the Court to set the starting point for sentencing in this case, he may very well have asked for the maximum penalty of five years in prison or a penalty close to the maximum as the starting point.

Section 7

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[26] It is pointless to have a maximum sentence of five years if the Crown Prosecutor is only going to ask for two years.

Justice Randerson [28] "Mr Cherry for the Crown acknowledged that he intended, in making submissions to the sentencing Judge, that a starting point of not less than two years was appropriate, taking into account aggravating factors. From there he had contemplated that there would be some reduction for mitigating factors. ..."

[27] If you don't ask - you don't get. The Crown Law Office and the Police have a major influence on the outcome of any case before the Courts.

They choose what charges are laid, and what is asked for by way of sentencing when the Crown Prosecutor stands up in Court. So, while the Judge is the final arbiter, judges can only decide on what is before them, as presented by the Crown and the defence.

[28] The Sentencing Act 2002 was passed by parliament to give the Courts stronger powers to deal with those who offend. This was passed by parliament at the behest of the citizens. It is the duty of the justice officials to carry this out.

[29] This Act is new legislation. What do decisions under the old legislation have to do with those under the new legislation? It is like comparing apples with oranges. The Crown should base their prosecutions on the law as it is and not on as it was. The Crown should simply lay the charge that actually fits the crime, then prove their case and ask for a penalty approximating the maximum sentence.

[30] The defence lawyer always starts from the point that his client did not do it and even if he did, it wasn't really his fault and can the Court let him off without any punishment.

[31] Offenders do have many ways under the new legislation to rehabilitate themselves if they truly want to.

[32] In this case we believe that the Crown Prosecutor should have asked for the maximum sentence and let the Judge take it from there. Of course the starting point when determining the sentence must be carefully weighed as the Judge does have to take into account mitigating and aggravating factors when determining the final sentence. But what other aggravating factors were there in this case? A child has been killed - is there a higher level of aggravation than this? Is there a higher level of seriousness than this? Section 7

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Recommendations on why you only get one year in prison for killing someone.

[33] To leave no one in doubt, we recommend that Section 160 of the Crimes Act 1961 be amended to state that killing a person by dangerously driving your car is culpable homicide.

[34] We recommend that the Crown Prosecutor ask for a starting point approximating the maximum penalty when an offender is convicted on any charge of causing death.

[35] We also recommend that the Police and the Crown Law office stop trying to second guess what the Court will or will not do. Let the judges be the Judge of these things, it is their job after all.

Section 8

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8) Justice for all victims in this case.

[1] What happened?

[2] Nothing happened. None of the victims got justice. The Graham family did not get to confront the offender over what he had done to their son through the Restorative Justice process prior to sentencing. The other injured victim and her family did not get to confront him either.

[3] Everyone who is intimately involved in this case believes in restorative justice: the Restorative Justice contractors, the Court officials, the judges, the lawyers, the Justice Ministry and the Members of Parliament who voted in this system. When people believe in something, it is often difficult for them to step back and look at things differently. It is time to look at how things actually are and not how they would like them to be.

[4] A mother of a dead child said "no thank you" and the Restorative Justice process was unable to cope. Why? Perhaps it was simply because there is an expectation that all victims will want to participate and no-one has really considered those victims - like Chantel - who might not want to participate. Perhaps this is why there are no procedures or people in place to cover such an eventuality.

[5] In this case no victim got any useful Restorative Justice for what had been done to them. When you look at what happened in the sentencing Court and in the High Court appeal the victims did not get any practical justice there either.

[6] Mr Zhao got sentenced to two years in prison on all three charges to be served concurrently. This was subsequently reduced on appeal to one year. What is not clear to us is whether the two -year prison sentence was for all three charges, or did he get three separate prison sentences of two years apiece?

[7] If he got a combined sentence of two years in prison for all three charges, then we are back to what was raised in section 7 of this report.

One offence of being a bad driver. Three consequences. Three charges. One sentence.

[8] However, if this is not the case and he did get three separate sentences then matters become quite puzzling.

[9] Apart from in his opening, where he lists the charges, the appeal Judge never mentions the two charges of dangerous driving causing serious injury again but once. His notes are all about sentences imposed for dangerous driving causing death. He reduced the offender’s sentence from two years to one year in prison.

Section 8

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[10] The puzzling thing for us is this. If there were three separate sentences, what happened to the two years he got for the second charge? What happened to the two years he got for the third charge?

[11] Can a Judge reduce these sentences without specifically referring to them? Or does this not matter and a Judge can simply reduce a sentence by implication?

[12] If the answer is “Yes”, then how can people possibly understand the Judge’s sentencing logic? Judges may need to more careful when they write their notes, if only because justice must be seen to be done.

[13] If the answer is "No, a Judge cannot reduce a sentence without specifically mentioning all the charges when doing so", then does the sentence of two years in prison on each of the other two charges still stand?

[14] Much is made by our Courts, when sentencing an offender of being seen to be fair. In any sentencing or appeal hearing, endless reference is made to other cases and how the offender’s sentence must be balanced against the sentence that others have received.

[15] An interesting event occurred in an Australian Court a few years ago.

[16] A man got arrested and he decided to defend himself. He stood in the Court and attempted to do so. Not being a barrister he soon ran into difficulties with the Judge.

[17] The Judge said to him "Mr X, while you have the right to defend yourself.

Please understand that you will be treated by this Court in the same way as every other person who appears before this Court on similar charges."

[18] Mr X replied "Your honour, I am here to be judged for what I have done.

Surely I can not be tried on the basis of someone else's crime. If convicted then surely my sentence cannot be decided by what some one else has done. Surely I can only be judged, by you, for what I have done."

[19] The Judge paused for a moment and then said "Mr X, I apologise. I have truly erred in what I have said. You are absolutely right. You are free to go."

[20] Both the Judge and Mr X got a standing-round of applause from the public gallery and from the officers of the Court.

[21] The point of the tale is this. In this country when deciding sentences judges have a propensity to compare the crime committed to other crimes. Where is the justice for anyone being sentenced according to the crimes committed by other people? Section 8

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[22] As the Australian Judge recognised, offenders can only be judged on their own crime. If found guilty, the sentence can only be determined by what the offender has done, not by what others have done. It is unjust to do otherwise.

Recommendations on justice for all victims in this case.

[23] We recommend that our Courts might want to think about what was said in that Australian Court.

[24] Refer to the recommendations in sections 6 and 7 of this report.

Section 9

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9) What about the money?

[1] What happened?

[2] Georgia's kindergarten received a cheque for $40,000 plus interest on Wednesday, 25 June 2003. They have been in contact with us and have said that their acceptance of this money is up to Chantel and they will go along with whatever she decides.

[3] But how did the kindergarten ever get to have this money foisted on them in the first place? Chantel said over and over to every justice official that she spoke to, that she did not want anyone to get money from the Zhao family for the death of her daughter.

[4] It is best to let Chantel explain it in her own words as written in her statement to the Crown Law Office: "Three days before the sentencing of Mr Zhao, I received a phone call from my victim adviser at the Hamilton District Court. She called to inform me that the Zhao family had offered a sum of money to me.

I told her that I didn't want it. She told me that unfortunately, she would have to tell Mr Zhao's defence lawyer that I had refused the money, and that this information would go into his evidence. She then told me that the Zhao family would still pay the money to the Court, that the Judge would have to accept it, that he would direct it to a relevant charity such as driver education, and it would probably affect Mr Zhao's sentence.

This didn't sound right to me. How can the man who has killed my child insist on paying money when it is clearly obscene and offensive to do so? I rang the Police officer in charge of the case and he confirmed that yes, the Judge did have to take the money, and he would direct that it be given to some charity.

I couldn't bear the thought of strangers profiting from my daughter's death so I asked the Police officer that if the Judge had to direct the money somewhere, could he direct it to Georgia's kindergarten. The Police officer said yes. He said that the Crown Prosecutor could make that suggestion to the Judge. He told me to ring my victim adviser and tell her to tell the Crown Prosecutor to ask the Judge to make Georgia's kindy the 'relevant charity'. I did so. My victim adviser told me that the Crown Prosecutor would ask the Judge.

So, on the 16th of May, when the matter of the $40,000 came up in the Court, and the Judge said that he understood the family had some wishes for the money, I was very confused. The Judge called my victim adviser in to the Court room and asked her what our wishes were. The victim adviser looked at me and said, "The kindergarten?". I was told beforehand that the Crown Prosecutor was Section 9

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going to deal with it. I was told that the Judge had to direct the money to a relevant charity. Even now I cannot believe that I was asked in the Court room if the money should go to Georgia's kindy. What could I say, so I gave in and said "yes".

Judge Wolff said that the money would be put into a trust, of which I was to be a trustee, to then be donated to Georgia's kindy. He went on to say that it was in no way viewed as reparation, that it was a dedication to the memory of Georgia, given freely by the Zhaos, over and above official reparation.

I never accepted or agreed with this money as reparation to me for the pain and suffering caused by the loss of my daughter. I told my victim adviser and the Restorative Justice people from the very beginning that I would reject any offer of money made to me as compensation or reparation. I wonder now whether the Zhao family were ever told this.

I wrote to the Judge myself telling him that I didn't want blood money for my daughter, and that under no circumstances should anyone profit from my daughter's death, so why did he ask me in the Court what my wishes for the money were? Had I been fully aware of my rights as a victim, and had I had proper legal advice I would have said "no", as I had been saying all along."

[5] How many times does a mother who has lost her child have to say "No thank you" before any one listens? In this case no one ever listened.

[6] How is it possible that an offender can insist on paying blood money for killing a child against the express wishes of the child’s mother? It is all in the way the Sentencing Act 2002 is currently worded.

[7] There are two types of monetary reparation in the Sentencing Act: s10(1)(a) reparation and s10(1)(b) reparation.

[8] s10(1)(b) reparation is where the offender makes an offer to the victim.

The victim can either take it or reject it. End of story.

[9] s10(1)(a) reparation is where the offender makes an offer directly to the Court bypassing the victim, as in this case.

[10] The Victims Advisor made the offer of $40,000 from the Zhao family to Chantel over the telephone. Chantel said "No thank you". The Victims Advisor then told her that if she did not take or direct the money, the Judge would take it and give it to someone else.

[11] The legal advice we obtained after the High Court appeal hearing says the Judge does not have to accept an offer of money from an offender or his family.

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[12] So why did the Victims Advisor say the Judge had to? Why did the Police officer in charge of the case confirm this? Perhaps it was simply because no one can immediately recall a case where a Judge has ever rejected a s10(1)(a) reparation offer when the offender has been capable of paying it.

[13] The letter containing the offer from the offender's lawyer is attached to this document (Appendix A). When you read the letter of offer you may think, as we do, that it is somewhat heavy-handed. It basically says here is $40,000. If you do not want it, or will not say where it is to go then the money will be made available to the Court to apply, at its discretion. The offender's lawyer seems to be saying that the offer of money is both a s10(1)(a) offer and a s10(1)(b) offer at the same time.

[14] We know all about the different types of reparation offers now, having obtained our own legal advice, at some considerable cost, since the High Court ruling. What we do not understand is why this advice was not given to us by the Victim Advisory service at the time.

[15] The way in which the offender's offer was explained to Chantel over the telephone led her to believe that if the money was paid to the Court it would be randomly allocated to a charity by the Judge. In the courtroom, no one explained to Chantel that the Judge did not have to accept the money. During the proceedings, when the Judge asked the Victims Advisor to put the question to Chantel, and the Victims Advisor asked her if the money was to go to the kindergarten - Chantel was caught between a rock and a hard place. If she did not say yes, then her advice (given by the Court official who was actually asking her the question) was that the Judge would take the money and simply give it someone else. So Chantel gave in and said yes. What else was she to do? Blood money to strangers or to the kindy? Clayton's choice.

[16] After the sentencing hearing, when the kindergarten was told that they were getting the money, they were very uneasy about taking it. They never asked for the money and they did not really want it. The phrase 'blood money' kept cropping up in some of their conversations also. But Clayton's choice again. If not you - then strangers. So at the time, they reluctantly said yes too.

[17] Back to the letter from the offender's lawyer offering the money. The letter is not addressed to our family. The letter is addressed to Georgia's father and his family. Why the offer was made to Chantel over the telephone by the Victims Advisor and not to the father and his family we do not know for certain.

[18] The clumsy way in which the offer of money was made by the offender's lawyer, combined with the wrong advice provided by the Department of Courts, put enormous additional stress on Chantel who, if anyone had Section 9

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cared to think at the time, was still trying to come to terms with the death of her daughter.

[19] No offender should have the right to offer money to the Court in an openended way, as was done in this case, after the mother of a dead child had rejected it. It does not matter that the Judge does not have to accept it.

[20] The lawful right of the offender as contained in the Sentencing Act 2002, to spurn a mother's refusal and offer it to the Court fills us with revulsion.

[21] s10(1)(a) reparation is intended to be a way in which the offender can himself atone for what he has done. In this case the offender had two months to decide for himself who he was going to atone to. It certainly should not have been to our family. We did not want it. He should have been advised of that on the day he got convicted.

[22] s10(1)(a) offers of reparation to the sentencing Court on the day is absolute nonsense and should not be allowed in a criminal Court of law.

[23] What else happened in the Court on the day of sentencing? There is a dry account of it in the High Court Judge's case notes: Justice Randerson [18] "I was informed that the amounts in excess of the $12,000 figure sought by the Crown in the summary of facts emerged only on the day of hearing when additional victim impact statements were provided. I am also informed that the appellant's family agreed to pay all of those sums, although they had not been sought as such by the Crown at that point."

[24] What is not related in the case notes, is how the payment of the 'amounts in excess' unfolded in the courtroom at the sentencing of the offender. It was all quite bizarre and unreal.

[25] The Crown Prosecutor stood up and asked for $12,000 for damage to the garage. The defence lawyer stood up and agreed that his client would pay.

[26] The Crown Prosecutor then asked for $1,500 to pay for the damage to Cameron's car. The defence lawyer stood and said his client would pay for that also.

[27] The Judge then said he had noticed in one of the victim impact statements that one of the victims had incurred $400 of medical bills and did the defence lawyer's client have any money for that. The defence lawyer stood and said that yes he did.

[28] The Judge then said he had noticed that one of the victims had cancelled a course that she had been attending, losing her tuition fees of Section 9

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$1,200. Did the defence lawyer's client want to pay for this also? "Yes, your honour" said the defence lawyer.

[29] Then the defence lawyer stood up and said he had another $1,500 available for anyone else who may want it.

[30] The Judge said he noticed that another victim had written on her statement that she had incurred some costs but she had not written down any amounts. So he called the Victims Advisor into the courtroom and asked her about it. The Victims Advisor said she did not know but she could go and find out.

[31] At this point the sentencing Judge did his nut. He made a crack about not turning his courtroom into a 'Dutch auction'. Then he apologised to the Victims Advisor and asked her to withdraw. And rather witheringly we thought, asked the defence lawyer if he would object if the Judge gave the $1,500 that had been made available by the defence earlier to this other victim. The defence lawyer stood and said he had no objection at all.

[32] It was truly unreal. The Judge had done his nut at what was happening in his courtroom. The Crown Prosecutor was rubbing his head like it hurt. Even the defence lawyer was looking slightly embarrassed. And one of the victims who was sitting in the public gallery was absolutely mortified, and she whispered "I didn't ask for this money. I only filled out the form I got given."

[33] All we can say is that our family is very glad that when the forms arrived for us to fill in, we threw them in the bin, and wrote letters instead. We hate to think about whatever else we might have got from the offender we did not ask for.

[34] Then the Judge said he understood that the offender had another $40,000 to give away and it went even further downhill from there.

[35] The other flaw in the Sentencing Act is that offenders can "buy" their way out of prison. The odd thing is that many people are in flat denial over this. The justice ministry denies it. Judges deny it, as do many lawyers, law professors and parliamentarians. We don't blame them. While no one wants to believe that it is true, the Sentencing Act 2002 says that it is true. The High Court says it is true even while simultaneously denying it.

[36] Under the current law - you can "buy" your way out of prison - we have to fix it.

Section 9

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Recommendations on what about the money?

[37] We recommend that the Sentencing Act be amended to say that a Judge must refuse to accept s10(1)(a) offers of reparation where the offe nder has not actually paid it to anyone at the time of sentencing. To be allowed to make a s10(1)(a) offer and leave it to the Court's discretion is wrong. It is nonsense. It must be stopped immediately.

[38] While a Judge can take into account that s10(1)(a) monetary reparation has been paid as mitigation (the current law). We recommend that a Judge cannot consider the amount of money paid to be a mitigating factor.

[39] We recommend that an appeal against a sentence imposed should not be allowed on the grounds of the amount of reparation paid.

[40] People will argue that the amount paid has to be considered. How can $400 equal $40,000 or even $400,000? There are others who will argue that the amount should be measured against the offender’s ability to pay.

A very egalitarian thought. This sounds good until one starts to think about assets stashed away in family trusts. Also, if we start counting this in, we are back to other people, other family members, paying for the offender's crime.

[41] We do not have a lot of choices here.

(i) We can leave the law as it is. The richer you are the better your chances of having your prison sentence reduced.

(ii) We can wipe s10(1)(a) reparation off the statutes completely.

However, this means that an offender who truly wants to atone for his crime will be left at the mercy of his victims under the s10(1)(b) reparation law, in terms of any punishment he may get. This would be an absolute "blood money" law. No doubt about it.

(iii) We can attempt to strike a balance between the two. Which is what we have tried to do in Section 9 [38] and [39] of this report.

We are sure that there will be other solutions offered to help fix this - as fix it we must.

[42] As for s10(1)(b) reparation, we recommend that the law stand as it is, so long as the victims’ right to choose is retained. The law works really well for many victims in many different circumstances, when offenders do pay for the actual damage they do, especially in cases of property damage or loss of earnings. However, the sentencing guidelines for judges do need to be further considered especially in cases involving death.

Section 9

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[43] We recommend that the victim impact statement form be amended to include a message telling the victim that if they write down any costs that they may have incurred, the Judge will ask the offender if he wants to pay for it. If the offender agrees and he has the money to do so, the Judge will order it and it will be counted as reparation. And the Judge will take it into consideration when determining the offender's sentence.

Section 10

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10) Notification of appeal hearings

[1] What happened?

[2] Nothing happened again. We found out about the appeal when the Victims Advisor rang to say that it was actually underway. We live in Auckland. The Court hearing was in Hamilton.

[3] Had we been there, Chantel may have been able to tell her story. The High Court Judge may have taken what she said into account when making his decision. Whether this would have made any difference we do not know - no one knows. Not even the Judge could truly answer this question. It is all speculation now.

[4] We were not informed of the appeal hearing, despite it being our lawful right. The result of not being informed was Chantel had no opportunity to tell of what had happened to her. Not being informed has not helped her one little bit - it has only made her life worse.

[5] This is a straight administrative error. Where are the red flag systems that signal that something has not been done at the time it should be? It is a system inadequacy to have the Court hearing notification process fall over simply because a junior staff member did not do their job.

[6] While it is the primary responsibility of the agency by whom the junior staff member is emplo yed to ensure that this task is carried out; it is not good enough for any agency to simply rely on another to provide critical information that they need. Both agencies need to have systems in place to ensure that critical information is transmitted in a timely manner.

Recommendations on notification of appeal hearings.

[7] We believe that if the recommendations in Section 7 of this report are implemented (a case manager charged with pro-actively liasing with the different agencies) then errors like this will require two agencies to fail rather than one as appears to be the current situation. And this may help to prevent this type of error from occurring again.

Section 11

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11) Court of Appeal action and remedies.

[1] What happened?

[2] Nothing yet. We are still waiting. We cannot appeal ourselves to the Court of Appeal. This is for the Solicitor General to decide. The last day to decide this is Monday, 30 June 2003.

[3] Our family really struggles with what the High Court has said about reparation in this case. In particular these comments: Justice Randerson [19] "... The appellant's counsel has informed me today that the persons responsible for the operation of the kindergarten are quite content for that to occur and it seems that the child's mother is in agreement with that course as well. Indeed, it was she who proposed that a sum of money be provided for the benefit of her daughter's kindergarten. ..."

[4] How did Justice Randerson get to conclude that Chantel herself had proposed that a sum of money be provided. This is a very strong statement to make. A High Court Judge would not have made this up off the top of his head. There must have been some evidence presented in his courtroom for him to conclude this. And because we were not advised of the hearing - we were not there to put our case.

[5] Chantel has, since the High Court ruling, written a statement to the Solicitor General outlining what happened to her (Section 9 of this report). And a letter to the solicitor holding the money in trust stating that she does not want her name associated with the money, that it is blood money and she does not want anything to do with.

[6] The kindergarten received a cheque in the mail for $40,000 plus interest on Wednesday, 25 June 2003 and they have declined to accept it in accordance with Chantel's views.

[7] What happens to the money now is not our concern.

[8] Georgia is dead. There is nothing we, or the offender and his family, can do about this fact.

[9] Our family can only do what we have done. To write this report, pointing out the difficulties we have encountered and making recommendations on how we believe these difficulties can be overcome in an attempt to prevent another mother from ever going through the same ordeal again.

There is nothing more that we can actually do about these matters. It is for others to take them on from here.

Section 11

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[10] The only thing left for us, as a family, to do now is to preserve the integrity and mana of Chantel, Georgia's mother. And once again we find these to be in the hands of others.

Recommendations on Court of Appeal action and remedies.

[9] We can only hope that the integrity and mana of Georgia's mother - Chantel are important to those who will make the decision to appeal.

And that they do appeal - if only to correct the record.

[10] We understand that the Court of Appeal does allow leave to appeal in special circumstances to correct the record. If according to current law, nothing can be done about the sentence itself, we can only hope that the Court of Appeal will at least correct the record.

Section 12

McCarten Family Report - June 2003 Page 36 / 42

12) Media responsibility when a child is killed.

[1] What happened?

[2] The media were given photographs of Georgia for publication by her paternal grandfather. The permission of Chantel, Georgia's mother to publish her child's photograph was never sought - neither by the paternal grandfather nor by the media.

[3] Members of the media are appalled and horrified when they hear firsthand from Chantel, how publication of her daughter's photograph badly affected her in the days after Georgia’s death and the effect it continues to have on Chantel, her mother and the children of her wider family.

[4] We believe that the media must be allowed to do their job - to report what happens as it happens. But there is nothing, absolutely nothing, more grievous than for a mother to lose her child. For some mothers, publishing a photograph of their dead child may actually help their grieving, for others - like Chantel - it was an intrusion which made the trauma worse. The overriding concern of everyone must be for the welfare of the parents at these times.

[5] In the dark days immediately following Georgia’s death we asked the media not to publish Georgia’s photograph. There were members of the media who did respond with compassion and we are thankful for this.

To this day, the New Zealand Herald has never published a photograph of Georgia. We are also grateful that images of Georgia also disappeared from other newspapers and television screens upon our request, but it was hard going for us to get around the media to ask this of them.

Recommendations on media responsibility

[6] We recommend the media’s voluntary code of conduct be amended.

After the death of a child, we recommend that the media get the custodial parent's permission (in most cases the mother) before any images or photographs of their child are published.

[7] This does not mean that the media then has personal access to the mother at these times. Should the media be given or have in their possession, photographs or images of the child who has died, if they have not got a verbal yes directly from the custodial parent, they require the written permission of this person to publish. It is not good enough to simply take someone else's word for it. If the media cannot get a response to their request - silence should be taken as a refusal. Please do not publish my child's photograph.

Section 12

McCarten Family Report - June 2003 Page 37 / 42

[8] We recommend that it is the permission of the custodial parent that must be obtained, simply because there are many families today where the parents are estranged and do not live together under the same roof.

Section 13

McCarten Family Report - June 2003 Page 38 / 42

13) What we do not need.

[1] We do not want the finger pointed at anyone. Every single Police officer and Department for Courts employee we have met has been compassionate and unfailingly courteous, even if sometimes misinformed, throughout out all of this. There are too many contributing factors to lay the blame at any one person's door. A remedial inquiry is one thing; a witch-hunt is a waste of scarce resources and serves no useful purpose.

[2] Quite frankly we are disturbed to hear that 'a junior staff member' at the Department for Courts has already been singled out as the sacrificial lamb for this entire fiasco. To that person we can only say that you will learn from this. You and everyone else, who has a similar job, are going to be the very best Court administrative assistant that you can possibly be from now on.

[3] There are many people who have been contributed to this disaster.

When so many people from different agencies are involved what we have is systemic failure, and any personal failures are a casualty of this.

It is pointless to attempt to point the finger at the individuals.

[4] What is done is done and can not be undone. No amount of breastbeating or expressions of regret can change anything, so let's move on.

Section 14

McCarten Family Report - June 2003 Page 39 / 42

14) What we must do.

[1] The matters raised in this report simply need fixing. It is not good enough for anyone to say "Leave it to me and I'll look into it." Well thanks, but we do not want you to look into it; we want you to fix it.

[2] Our family, especially Chantel, has been put through the wringer during these past months. We want to ensure that there is absolutely no way that another mother is ever going to go through what Chantel has had to endure.

[3] We have had a gutsful. To people who have also had a gutsful, we urge you to go to your local MP's office to talk to the person representing you in Parliament, or write to them and tell them how you feel.

[4] We are asking the media to help us make the recommendations in this report into a reality. You are there to keep everybody honest.

[5] To the Members of Parliament and the heads of the civil services ultimately responsible for this shambles, we simply say look to your own mothers, wives and daughters and ask yourself would you put them through this?

[6] The message from our family is very simple: "Read this report then get on and fix things so that it never happens to another mother again. If you cannot work out how to do it, then get out of the way, and let some one else through who can." Section 15

McCarten Family Report - June 2003 Page 40 / 42

15) An open letter to the driver of the car - Ding Yan Zhao.

Ding Yan Zhao, you did this and no one else - not your mother or your father.

Your mother spoke in the Court on the day of your sentencing. She spoke of your family's honour and duty, and of your culture and traditions steeped in history. Her words and her sorrow touched us.

We have your letter, written before you were sentenced, and in it we read: "I don't know what the outcome of the sentencing will be but no matter what happens, I will try my best to make up for this serious crime." In this country we live by a simple creed: "It is not what we say that defines us. It is what we do." Ding Yan Zhao it is what you do, not what you say, that truly matters. You have appealed your sentence. You have applied for home detention. Is this your best way to make up for your crime? Yes, you have the right in this country to apply to the Court for home detention, to allow you to serve out your sentence from the comfort of your own bed. But if you seek this and it is granted, you will never be accepted anywhere, not here and not at home, as an equal by any other person. You will be seen to be a coward and a weakling and all people of good character will despise you for it for as long as you live. Now you may find this a bit harsh. But go ask your father about this and he will tell you that this is actually how it is in the real world.

You have taken Georgia's life and there is nothing you can do that will bring her back or ease our suffering. The only thing you can do is to stop running away. You must face up to this and accept your punishment with all the grace, dignity and fortitude you can muster. You must do this if you are ever to find the sense of peace that you speak of in your letter.

And there is honour too. Do you not see the harm you are doing to your family's honour and the harm you are doing to the honour of your people by appealing your sentence and applying for home detention? Where does your duty lie? Is it to them or to yourself? There is nothing to forgive. There is nothing to beg for. Georgia is dead by your hand. That is all. Only you can redeem yourself. Only you can redeem your family and people's honour. You can only do this by accepting the short term of incarceration in prison handed to you by our Courts as punishment for your crime.

Kia ora tatou, The McCarten Family.

McCarten Family Report - June 2003 Page 41 / 42

Appendix A: Transcript of the letter of offer from the Zhao family lawyer.

McCaw Lewis Chapman L A W Y E R S Our ref Michael Talbot: ZHA180/1 E-mail michaelt@mlc.co.nz Fax (07) 839-6452 12 May 2003 Cameron Graham and the Family of Georgia Graham C/- Wendy Hosking Victim Support Advisor Department for Courts Private Bag J3060 HAMILTON Ding Yan Zhao We act for Mr Zhao and also for his parents who are both in New Zealand at present.

Ding and his parents are devastated by the consequences his actions have had upon your families.

Ding and his parents had hoped to express their feelings to you and, more importantly, allow you to express yours to them at a restorative justice conference.

Ding and his family remain anxious to express their feelings and have provided letters to the Court to be passed on to you.

These letters were prepared and forwarded as soon as possible after they were informed that the restorative justice process was not to proceed.

It is equally important to Ding and his family to offer in some material way to address the wrongs committed by Ding. They understand that any suggestion that money can compensate for the wrongs done, or the consequences of those wrongs, would be reprehensible. That is not their purpose of the offer. The purpose of the offer is to further express their regret and remorse for the tragedy inflicted upon the victims, and to try to make a meaningful contribution in some way towards addressing those consequences. To this end the family wish to make available the sum of $40,000. The [y] money is to be made available to Cameron and the family of Georgia Graham for use at their complete discretion, whether that be directly, or in applying it to some charitable or community cause such as driver education.

If the offer is not accepted, I am instructed that the money be made available to the Court to apply, at its discretion, at sentencing.

McCAW LEWIS CHAPMAN MICHAEL TALBOT ASSOCIATE

McCarten Family Report - June 2003 Page 42 / 42

Addendum to Court of Appeal action and remedies.

[1] The Solicitor General's Office has declined to appeal to the Court of Appeal.

[2] We were advised of this decision on the afternoon of Wednesday 25 June 2003, within a few hours of a copy of this report being sent to the Hamilton Crown Law Office, the Solicitor General and the Deputy Solicitor General.

[3] We were advised that it is the opinion of the Solicitor General's Office that the High Court decision to reduce the offender's sentence from two years to one year is within the law, and therefore cannot be appealed on any point of law.

[4] We were also advised that it is the opinion of the Solicitor General's Office that what has happened to Chantel - mother of Georgia, does not warrant enough of a special circumstance to appeal to correct the record.

ENDS

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