Kodak Black and plea bargaining - is this process really okay?

Dieuson Octave, also known as Kodak Black in his career as a rapper, left the courts happy. Today he was let off a 55-year maximum sentence through a process known as plea bargaining.

A plea deal was made. The deal allowed Koda to agree to do five years of probation and a year of house arrest brought the result.  He had fans calling for his release, showing their support by wearing ‘Free Kodak’ shirts. The overwhelming support of fans was likely an influencing factor for the prosecution’s eagerness to get him out of the courthouse.

The young rapper has gathered followers through the popular video platform Youtube. Well-known rapper ‘Drake’ has even featured his song ‘Skrt’ on his YouTube channel.  However, Kodak's career is plagued with a series of legal issues including assault and drug offenses. While the rapper stereotype matches the conflict with the legal system, the impact on his career would be significant. Some sources suggest this was part of the reason why Kodak was let off.

Lawyers Allan Stephen Zamren and Gary Kollin were both very pleased with the result. Their client will appear on the international music circuit shortly.

So what exactly is a plea bargain?

The term plea bargaining comes from the United States. In Australia, the practice is used as well. It is mostly commonly involved in criminal or civil penalty charges. Usually, the defense will bargain with promises of good behavior and house arrest in exchange for the prosecution recommending a non-custodial sentence.

A plea deal is where your legal team makes an agreement with the prosecutor to accept a lesser charge. That will most likely mean that you will have to enter a plea of guilty. You will plead guilty to a lesser charge.

In Barbaro v The Queen the issue was examined carefully. There the facts are unique. Accused Pasquale Barbaro and Saverio Zirilli were charged for involvement with drugs. The defense and prosecution had negotiated away from court benches. They’d reached an agreement on a sentencing deal.

The judge refused to accept the prosecution’s request for a non-custodial sentence. The judge then lay down his own sentence, upsetting the usual practice.

The case was taken on appeal to the high court. There the prosecution was on a matter of law. The high court had to consider where a plea bargain can be used to prevent the judge from exercising his discretion. It in that the judge as the superior legal mind is capable and should is not his discretion over the case. Usually, this isn’t an issue, but when the defense has bargained away a rightly deserved custodial sentence – can the judge do anything?

It was not a material error for the judge to refuse to accept the prosecution’s submission. The judge was allowed not to take into account any sentencing ranges from the prosecution or defense. The 2014 case was significant as it overruled the previous right for the prosecution to set the bounds of the sentencing range; R v MacNeil-Brown.

Kodak Black is not an isolated case of individuals freed from crimes by plea deals. In fact, he is probably one of the few cases where plea bargaining is just a simpler litigation process. Some litigants who benefit from plea bargaining faced serious crimes
.
Then plea bargaining becomes a threat to the safety of the community as a whole.

Carl Williams was a famous underworld figure. He of with three counts of murder and one count of conspiracy to commit murder. These serious crimes are usually reserved for the most heinous of cases. We’d all like to think they’re treated with the respect they deserve. However, plea bargaining minimizes the severity of the crime. In some cases, it can feel like there was no retribution at all.
Williams’ sentence was thrown away when the Victorian Office of Public Prosecutions struck a deal with Williams’ defense team. Barbaro v The Queen was a 2014 and Williams was trialled in 2007. Then the judge felt he had to follow R v MacNeil-Brown. That meant he accepted the prosecution's submissions and Carl Williams walked away.

So what’s the issue?

Some may find themselves supporting plea bargaining. On face value, it’s a great way of minimizing expensive court costs and negotiating your way out of a devastating custodial sentence. However, the private negotiation process can either force a guilty plea on an innocent accused or realign the sentence to something less serious than what it is.

Plea bargaining is somewhat of a double edged sword. It can save or ruin lives and the foundations of society at the same time.

It is also one of the most secretive processes of the criminal law system.
It is secretive because the negotiation takes place without any official recordings. There is no legislation that can referee this bargaining process and there’s no objective review tribunal. It harbors a little bit too close to the saying ‘you get the justice you pay for.’
If you can afford to hire a good negotiator, you could avoid a drug trafficking charge with a mere use of drugs fine and rehabilitation condition.

To pinpoint what you should be concerned about – realize that this plea bargaining process is entirely anti-democratic an d undermines the foundations of the Australian constitution. There is no jury watching the process. There is no law to ensure justice. Instead, there is just two rogue lawyers and an accused in a room.

It sounds a lot like the plot line of suits, and you would be right to think so.
Some people suggest that this entire process undermines the right against self-incrimination and the right to a retrial. After all, if you accept the wrong plea bargain, there're no files there for you to appeal against.

It’s a lot like an illusory promise. For those who are not familiar with the term, this refers to a contractual promise that has no legal force behind it. It lacks payment or consideration forcing the courts to ignore it.

A plea bargain carries no weight in an appeal court. That being said American courts have treated plea bargains like contracts. That, however, does require some documentation of the bargaining process. Many Australian lawyers prefer to plea bargain through a series of subtle changes and applications to the court. This slower, costlier process has no action in contracts and can take much longer.
Overall, plea bargaining is a well-established process of the courts. However, it can legally pervert the course of justice. Judges are seldom as brave as seen in Barbaro v The Queen. Requiring that plea bargaining becomes an above the table, recorded litigation process can help to ensure justice on both sides of the bench.

No Way Bob Day!

[[TRANSCRIPT]]

 Bob Day’s barrister, Peter King, received a warning from Chief Justice French on the third of may against making speeches with politically charged references in front of the high court. He was responsible for presenting, the cross-bencher, Bob Day’s constitutional challenge about electoral change for the upcoming election process to the High Court.

Mr. King is helping Senator Day launch a constitutional case against the Australian Parliament contesting the electoral reforms designed to prevent independents running for a position in the Senate who don’t represent the Australian general public from receiving a seat. Day complains that the new system would unfairly skew the thousands of votes for minor parties as the votes would quickly be thrown away under the new regime. His fears are that it would only grow Australia’s two-party government issues.

Policy discussions - best reserved
for university lecture halls?

King’s scolding arose when he compared the laws, as equal to dissuading signs out the front of polling places. Chief Justice French rose to action warning King to “go to the nitty gritty rather than have speeches that are best made outside of this place.”

 Legal challenges are very serious and formal affairs. In the entirety of Australia’s history, there have been less than one hundred constitutional challenges. Since the high court opened in 1903, the number of cases the court has seen are incredibly small averaging sixty a year since commencement. Again, the number of constitutional challenges are even lower, meaning they are marked down in Australia’s history for special consideration. The minuscule amount of challenges only leaves more room for humiliation as it is certain that Mr. King’s scolding in front of the high court won’t be quickly forgotten.

The policy reform, which is the subject of the legal challenge, is trying to prevent small senators from creating preference deals with other parties to win the seat in Parliament through the preferential voting system. This voting system works so that political groups can show voters how to choose senators that best support this policy in descending order. The plan was put forward after it was debated in Parliament for forty hours, revealing just how contentious this decision is.

The challenge in the high court has prevented the South Australian electoral officer and federal government from issuing the next round of ballot papers needed for the Senate election, which was scheduled to be held on July 2.

In detail, the new policy intends to eradicate the process requiring below the line voters to place their preference for each listed and instead choose their top twelve favorites for the seat. Party logos would also be included in the paper simplifying the process for less politicized individuals. It was seen in a previous election that taglines printed on group voting papers can be very misleading, this will be eradicated by printing logos onto the ballot paper.

Prime Minister Malcolm Turnbull has argued that the new legislation was good for democracy as it will encourage voters to vote for at least six senators above the line individually. But if their preferred candidates are unsuccessful then their votes will be entirely unsuccessful.

If anything the new policy makes
brilliant brunch conversation!

As beneficial as the changes may appear senators are warning that these changes violate the principle of representative government. Day body proclaims that voter’s rights were taken away and today no one is a step closer to restoring those rights. This bold claim adds a frightening spin to the turn of events but in reality, Commonwealth solicitor-general Justin Gleeson has criticized the senator for speaking out and dismissed his arguments as having a considerable weakness.

Gleeson has pointed out that if Day’s case is accepted that it would invalidate all voting since 1984. Following that train of logic then Australia would not have had voted in a valid Senate since the last election before 1984. This would put Australia’s legal and political system in serious jeopardy as it would invalidate all legislation.

According to the Constitution, no law can be passed except on agreement by both houses – therefore is the Senate is eradicated so is all of the laws that have been passed in the last thirty years!

Additionally, the case outlines that the policy interferes with section seven of the Australian constitution that claims senators shall be composed of senators for each state chosen directly by the people of the state and that this means that every person’s vote must directly go towards selecting one candidate.

Constitutional law experts from the University of New South Wales have applied legal reasoning and have clarified that governments are allowed to use a range of electoral systems to satisfy direct election. Day’s loss is that the constitution is ambiguous about by what means the voting has to be direct. As a consequence, he cannot claim that one form of voting is more direct than the other as long as they’re both direct.

To be honest, I think we should all
just have a calming cup of tea.

Overall, it seems that King has set himself up for an uphill battle as he failed to present an outline of his argument to the High Court before his presentation.

The courts are still examining the case as we speak, and I look forward to hearing more about this constitutional challenge…as unlikely as Senator Day’s success may be. 

Why I chose to become the underaged lawyer

Oh my goodness look! I can post gifs on here!

My blog title often amuses the many people I meet. They associate being underaged with youth and innocence. I too do not separate these qualities from youth. Childhood and young adulthood feature the growth of curiosity

I believe one of the many characteristics of today’s children is that they suffer no fools. Many children state it out how they see it – I’m sure you’ve all heard ‘that’s dumb.’ Or ‘Why not just tell them no?’. The simplicity of youth is something I wish never to forget as a lawyer. 

Also, I chose underaged because being underage means that the law of the world cannot restrain me. No, I don’t mean unconstrained in the strict sense of law. I mean unconstrained in that the formalities of the world seem as flexible as a piece of string.

 If I don’t agree with it – why not say it? If there is a war- why not tell them to stop fighting?

 The older an individual gets, the more constrained they appear by the realities of the world in which they live.

Just because a lawyer's work isn't fun
doesn't mean I cant have a flower to make it better!

The role of a lawyer is always to dodge these realities. I see no human rights lawyer that looks at the world and thinks ‘well that’s the way it is, and that is the way it always will be’. I like to think of lawyers like a relay team. We all acknowledge that it should be one way and set about in a relay race to make it happen. Think back to the history of law – how did it develop? Because one day one person said hey – we should have a way to fix things when they were unfair!

And it took a long, long time to get close to what we have today – and even now there are still issues – yet we started as a group on a venture that appeared impossible. The judges that started the law were effectively holding onto the spirit of youth. An undaunted challenge to the future to improve things in the way that they morally should be. 

It is impossible to propose that a happy young person would not aim for a better tomorrow but it is not unprecedented that the contented mature person will merely seek to keep the peace for the present. I am now studying law and global policy, and often I find myself pulling back on proposing theories of change merely because I see troubles with current political sensitivities. However, I have determined to stop holding back. Present day sensitivities should be mere passing thoughts to proposals for future benefit. 

It is a selfish proposition that any change must occur within my lifespan. Rather I must consider myself a simple member of a relay team for a change. If I wish to see the globe operating with a democratic government, I must prepare myself to see turmoil and for the future youth of the world to see the success. 

Although Lord Denning never let go of that
underaged mindset - question all assumptions!

It is only in the mind frame of someone who is free from the constraints of the academic and political world that propositions for change can occur. It is undoubted that in present times they must be altered to minimize the conflicts which are faced, but they should never be modified during the future to cater to the conflicts of the present.

It is common knowledge that wars end. Whether the political sensitivities remain are purely up to the generation of today. I can see that as our world become interconnected and we suddenly have friends in every country across the globe political conflicts cannot remain. What person would hold a grudge against the country in which their beloved aunt lives? Or where a favourite actor spends the majority of their time? Our current views of states and borders are rendered irrelevant by transnational communications leading to the only conclusion – we must ignore the realities of today to develop a functional future.

I am currently writing an essay about creating a global government. I will admit that I have been torturing myself by attempting iron out exactly how differing cultures and ideologies could mix until I realized that was simply my perspective. 

I may view some cultures as roadblocks to change – but I do not see their population as road blocks. As communication and personal expression take the reins of country control so must these ideological setbacks fall away. Young people of today have seen the devastation of war and the crippling effects of food shortage, of racism, land loss and the importance of human dignity. 

Each of them represents a generation that has never considered a postcode or border when communicating with someone else. The conflict of the future will not lie with countries, and it is critical that as lawyers, businessmen and people of the world, we make plans to deal with a generation that does not understand there is a separation between countries. 

Is it sad to admit I've never actually used a
post code except in online forms?

After all, for my generation, where is the separation? I can see my friends in Italy, follow my auntie in England and enjoy the acting ventures of Benedict Cumberbatch all from one place. I have no understanding of the borders between countries – I’ll admit it took me time to understand why we had to draw lines. Yes, there is a great conflict in many countries, and not all people will view others in equal stead to themselves. But I propose the vast majority do and as time goes by the majority can reach out to the minority to develop the ability for the world to grow as a single community free from conflict and turmoil in order work entirely for the global benefit of all members.

 As overly confident as the proposition may appear I’d like to invite you to consider what it means to be a young person today. Think about having no understanding of having to wait to communicate; there ’s no need for physical contact in a fight – most ‘brawls’ between youth happens online. It’s purely verbal. In the future, the value of physical contest will not compare to the value of the written word. Global governance will become our centerpiece for the new war – taking form in the diplomatic art of discussion.

And since we're at the end of the post we can talk about fun things ^^^
meet my plant family; marcus the chilli and george the italian basil.