A District Court judge's innovative attempt to punish a gang member by ordering he forfeit his patch has been overturned by the High Court.
Black Power member Mauri Heke landed in Whakatane District Court after a boisterous night out in June.
He had been charged with disorderly behaviour after refusing to leave a bar.
The judge sentenced him to 140 hours of community service, but in a novel step also ordered the long-term gang member surrender his patch to the court.
Gang expert Jarrod Gilbert who wrote Patched, the definitive book on gangs in New Zealand, says patches are akin to heirlooms for gang members.
"To gain a patch takes significant commitment. It's a symbol of the group so its status is incredibly high. People will protect that patch with their life.
"To get a patch you're at the beck and call of the gang. There's no set rule of what you need to do but it's about proving that over a period of time you've got a commitment to the crime, that you're not going to drop and run."
The move by the judge to target the patch was applauded as an imaginative piece of sentencing by a legal expert - but the ruling has been overturned by a higher court.
Heke was happy to cop community service, but appealed against the order to lose his patch. He went to the High Court at Rotorua - and won on a technicality. He gets to keep his patch.
In order for an item to be forfeited under the Sentencing Act 2002, the offence a person is convicted of must carry a maximum penalty of five years or more.
A conviction for disorderly behaviour carries a maximum penalty of three months' imprisonment.
"The judge, with good intentions, is trying to imaginatively use new provisions of the Sentencing Act, but I would suggest he's fallen over because disorderly behaviour isn't a serious offence," legal expert Bill Hodge said.
Nor, he says, does a patch qualify as a piece of property used to "facilitate or assist the commission of a crime" as outlined in the act.
Where a car or even a sword could be confiscated, Hodge says "I just don't see a piece of cloth, which is sewn onto a jacket, as being an instrument to enable crime." Hodge said he understood why the District Court judge made the decision but it didn't quite meet the standards of the sentencing act.
"Full praise to the judge for trying to be imaginative. What we all want to do is not just endlessly send people to prison. We want to stop them in their pathways and make sure they are somehow turned into another pathway. Some of those imaginative things can be creatively helpful in that regard."
Black Power was formed in the 1970s in Wellington but quickly spread nationwide. They are now New Zealand's second-largest gang.
- Sunday Star Times