"Ten plus five" results in 21 day prison sentence of New Zealand man for contempt
Posted On: Wednesday, 28 March 2012


28 March 2012
Northland resident Myles de Montalk's 21 days prison sentence for contempt after District Court Judge John McDonald took offence to his submissions was reduced by High Court Justice Graham Lang to 7 days on appeal last week.

De Montalk, who was seeking a defended hearing in the Whangarei District Court on 1 December 2011 to a reckless driving charge, was thrown in prison for 21 days when the Judge - repeatedly confused by de Montalk's reference to "paragraph fifteen" of a previous judgment - believed his lack of comprehension was being belittled when de Montalk replied on the third request "ten plus five". The transcript revealed that when the Judge asked "Is that how you're always going to talk to a Judge?", de Montalk replied "It depends Your Honour, if they hear me or not."

In pronouncing sentence, Judge McDonald concluded: "I find that his comment, "10 plus five," was calculated by him to show his utter disrespect for the Court. He has sought to explain that comment today as a way of explaining to me what the number 15 means. I do not accept that for one minute."

Earlier in the appearance, de Montalk became upset by the Judge's dismissive refusal to address Police challenge to a summons of a police witness despite this issue being on the court agenda that day. When de Montalk expressed his desire for the police notes taken from witnesses, the judge made comment that just because the police were there does not mean they took notes. When de Montalk referred the Judge to police evidence of their existence only to get the same reply, de Montalk responded, "Yes Your Honour, just as what Judges say in Court's not true."

Though this earlier exchange, which resulted in a prompt warning from the Judge, was referenced as setting the tone for the ultimate contempt, Lang's judgment was evasive of the judge's conduct which prompted the earlier exchange, stating, "I accept that there could have been fuller discussion of the issue given that the Registry had advised Mr de Montalk that it was to be heard on that day. Nevertheless, the fact that it was not resolved does not assume any practical significance in the context of the principal issues that this Court is dealing with on the appeal."

In the storybook fiction of New Zealand court lore, Lang J declared de Montalk's appeal unsuccessful by stating, "RESULT - Although I have upheld Mr de Montalk's submission that the sentence was clearly excessive, this does not result in the appeal being allowed. Mr de Montalk only spent six nights in custody before being released. As a consequence, I am satisfied that he ultimately served a sentence that was actually slightly less than was appropriate having regard to his conduct. For that reason the appeal is dismissed."

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