Main photo: RNZ/ Anneke Smith

Violent racist guilty of violent racist attack. The law says: nah, no hate crime

A nightmarish and near-fatal high-speed pursuit of a New Zealand Chinese family concluded with a judge rejecting the prosecution’s request for hate crime sentencing. Tze Ming Mok discusses why New Zealand’s approach to hate crime is utterly useless.

I don’t like horror movies. I could only watch Get Out while on a plane, on a tiny, psychologically manageable screen. Real life is terrifying enough. Latest nightmare fuel: The case of the long-resident New Zealand Chinese family run off the road in a scene out of Terminator set in gothic rural Awhitu, but where the T2 is made of gammon steaks instead of nanobots.

When the court reporting on this case began in May, I could not even get all the way through the first article. I had to close the tab while muttering to myself, “don’t worry, you never ever have to leave central Auckland again for any reason.” The thing is, being run off the road to your death in a racist road-rage incident is also a major risk in central Auckland, but at least you’d be able to get out of your car and immediately be among people who could shield you from the Gammon Terminator. It’s all about hiding inside densely populated urban infrastructure rather than running screaming through a desolate field with three cows in it.

You might be wondering, how could the Gammonator not have been convicted of a hate crime?

It is because you cannot be convicted of a hate crime in New Zealand, because it is not a specific offence, nor is it defined in any law. All we have is a sentencing provision that allows a higher sentence for crimes that were “racially aggravated”.

And why was this condition not met? It turns out that racially “aggravated” in the sentencing context does not mean “aggravated” in the normal sense. The judge followed precedent to conclude that racially aggravated sentencing only applies where “the offending has only come about because of the victim’s characteristics”, not where some racism became evident after the crime was already in process. The judge considered that the defendant would have given violent chase to anyone who he’d perceived to have caused damage to his car, because our boy, let’s say, has problems. Where racism might have exacerbated his attack, the judge did not consider the potential difference to the outcome to be “very significant” compared with a possible counterfactual non-racist meth-rage. We could argue this point, but ultimately she was interpreting case law, and the law is a dog that is of nearly no use to the New Zealand communities that experience hate crime.

“Hate crime” is essentially a meaningless term here, because it refers to nothing in the legal jurisdiction of this country. Nothing that is enforced. Nothing that is counted. Since March 15, journalists have discovered how impossible it is to find any statistics or data on hate crimes in this country, and why. But there has been no noticeable movement from government to do something about it. The justice minister, Andrew Little, has brought forward the already-scheduled review of the Human Rights Act, which may deal fairly minimally with expanding the hate speech provisions (no one is ever actually prosecuted under these because the threshold is very high) to cover protected characteristics other than race, but statements on moving on hate crimes have been vague. However, the government seems to have been happy to let everyone confuse hate speech and hate crimes, which is probably worse than having done nothing, because now people think some specific action has been announced about hate crimes when no specific action has been announced about hate crimes.

It’s also super dumb to not be pushing for a clear hate crimes law, because hate speech by comparison is so easy for the likes of David Seymour to hijack and obfuscate, because many people are legitimately unsure about what threshold hate speech should be prosecuted at or even whether it “really” exists. Meanwhile people seem much more sure that hate crime exists, is bad, and can be defined, even though it doesn’t exist in law and is not defined.

Counting hate crimes has historically been left to the occasional very small-scale community project. I am only aware of three of them currently operating here, two of which have only just been set up. They don’t seem to be coordinated, don’t have government support, they focus on different areas, and may not be working to the same definitions. Affected community groups that attempted in the past to push the police into recording hate crime or even recording the ethnicity of victims of any crime, have privately voiced huge frustrations about the level of police interest or willingness to engage. And yes, we may bemoan the inaction of the police. But ultimately the police haven’t been mandated or legislated or funded into action by government.

As usual, New Zealand is making no plans to deal with a problem that it is pretending it doesn’t have. And as usual, there are already existing models it could learn from. In 1993, Stephen Lawrence was murdered by a racist white youths in London, and the police investigation and prosecution was botched due to institutional racism. This eventually led, after two decades of controversy and self-examination, to the British government implementing a robust system of hate crime legislation, policy, monitoring, and community support for victims. Since 2012, the British police are required to collect and record all reports of hate incidents.

“Hate incidents” can end up being assessed as amounting to crimes or not, but are any incident perceived to have been motivated by hostility to protected characteristics of the victims (eg race, religion, disability, etc) or witnesses, that were deemed worth reporting. Police must receive and record all incidents reported to them. They are counted. If investigated and found to meet the level of a crime, all crimes that have a hate-y element are then flagged as potential hate crimes by police. This too, is counted. Cases don’t need to be prosecuted to be flagged, but it is an indicator of how they might be prosecuted. An actual hate crime in the UK is defined in law as requiring proof of hostile intent rather than just perception, but the law still uses terms broader than New Zealand’s sentencing laws. Prosecutors need only prove an “element” of hostility based on a protected characteristic. 83% of hate crimes taken to court by crown prosecutors secure a conviction.

The difference between where we are in New Zealand, counting only successfully sentenced criminal cases under our narrow laws, is a world away from counting all hate incidents reported. But this is the kind of model we need to move towards, because the courts are not going to solve racism. The point of monitoring by police and communities is to figure out where we have a problem in the first place. Hate incidents and “flagged” crimes allow us to monitor with much more sensitivity, exactly how hot it is getting out there, the places most affected, and what needs to be done about it, whether it be targeted deradicalisation of white extremists, support for mental health, or community mediation. We are in the absurd situation of knowing that hate crimes spiked in the UK after the Christchurch attacks this year, but having no official data on how it affected New Zealand.

Secondly, and no less importantly – collecting reports of all hate incidents says to us that our experiences of daily abuse and humiliation matter, because these things are unacceptable. That our society recognises that our existence and humanity count for something.

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I have been told that to implement a proper hate crime monitoring system would take a massive amount of investment in training the police, which would make it too hard. Surely though, if a police officer can’t be trained to identify the motivation, intent or effect of a crime, then why are they a police officer. A less petty point, is that in the UK, the model works because the majority of first instance monitoring, collating and reporting of hate incidents is undertaken by mandated and funded community organisations that already understand these issues, like Tell Mama for Islamophobic and racist incidents and the National LGBT Hate Crime Partnership. Crucially, this allows for the anonymous reporting of incidents for communities with low trust in police. As Māori and Pasifika communities know, plenty of hate crimes occur at the hands of cops themselves. These community-based monitoring groups also coordinate victim support for the hate crimes they are receiving reports on. That, too, is fundamental. Because the point of any system meant to fight hate crime, is to make things less shit for those who are affected by it.

These things are incredibly obvious and straightforward, but there needs to be the money to implement them. The minister of ethnic communities, Jenny Salesa, boasted about getting $7m extra in her budget as a post-Christchurch win, which is kind of pitiful, but I don’t need a fancier Chinese New Year festival, thanks. Fund hate crime monitoring.

Why does it always take a human sacrifice before something gets done? Stephen Lawrence paid too high a price for reform 20 years later. The March 15 victims have paid too, but nothing has been delivered yet. You would actually not believe what a cautious, cowardly and considerate driver I am, because I don’t want to a) kill anyone; b) die in the Waterview Tunnel; c) be killed by a racist in a road-rage incident. It’s not much to ask. But if c) ever does come to pass, I just hope that by then there will be a system in place for it to have counted for something.

Tze Ming Mok is a writer and social researcher. Her child once made her stop the car on a desolate road on the way to the Awhitu peninsula to rescue his balloon that had flown out the window and into oncoming traffic. They are never making that journey again without a white person in the car.


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