Part Two: Losi Filipo and NZ Justice

I have to admit to having had a knee jerk reaction to this story - caused by the fact that the mainstream news media often beats up a substantial head of froth on stories, that the law and order brigade always bays for blood before stopping to think, and that young men of colour in NZ do not usually get a fair deal at the hands of the courts or in mainstream and social media.

I have a long memory when it comes to issues of injustice and I collect examples of police and judicial bias so, even accounting for the rugby factor, I viewed the Newshub story with a degree of scepticism.

For example, I  could not understand why, if Filipo had punched a woman hard enough in the face for her to need plastic surgery, he was not charged with aggravated assault rather than male assaults female.  I could believe the police might downgrade charges because of a sympathy for a rugby player but this was not the case as they had charged him with a serious assault on one of the men. 

I was also interested in why it took so long for the story to break and whether that had anything to do with the controversy over the lenient sentencing of Nicholas Delegat for a serious assault on a female police officer. 

Delegat's legal team fought hard for over a year to retain name suppression and for a discharge without conviction to safeguard his future career prospects. The judge lifted name suppression and convicted him but handed down a very lenient sentence of community service.  If Delegat had not had money and influence behind him, he may well have been sent to prison. If he is remorseful, if his violence was fuelled by alcohol and he is taking steps to deal with that - then the decision not to send him to prison was a good one.

Losi Filipo would have avoided prison because of his youth and previous good character but it was his connection to professional rugby that led to the unusual discharge without conviction. New Zealand justice is not usually so benign when it comes to dealing with young men of colour who commit crimes of violence.

In Christchurch in 2007, a young Samoan man, Lipine Sila, drove a car away from a racially charged incident at a party and ran into a group of party goers crossing a road. He hit several of them, killing two 16-year-old girls, Hannah Rossiter and Jane Young, and badly injured several others. He drove off and was arrested later at his home. 

The police did not accept his explanation that he had been frightened for his life and had panicked. They alleged there had been an 'element of intentionality' in his actions – i.e. that he had either driven into the crowd deliberately or he had not tried to avoid them.

He was charged with two counts of murder and eight counts of GBH.  So seriously did the police take the threats to Sila's life from enraged members of the public, he had to be remanded in custody for his own protection. Threats were made to storm the court if the 'right' verdict - i.e. guilty of murder - was not returned. The coverage of the prosecution case in The Press initially was so lurid, the Judge told the paper to tone it down.

Sila was said to "swagger'"; it was said he did not look like he was sorry because he smiled and waved to his family in the court; he was said to speak sullenly and monosyllabically.

There was no thought that the "swagger" might have been an attempt at bravado in the face of so much hatred and antagonism; there was no understanding of his need to acknowledge the only friendly faces he could see in the court, and there was no account taken of the fact that he did not speak good English and found it hard to articulate his feelings.

He was subjected to a tidal wave of antagonism orchestrated by some highly vocal members of the public.  Ironically, both he and the girls who were killed were newcomers to Canterbury; he was from Samoa; they were from England and the USA respectively. 

What made his crime so rage-inducing for some people was that he was a poor, inarticulate brown-skinned man who had ended the promising lives of two young daughters of middle-class, white people. 

It was just not possible to ignore the racial dimensions in that case any more than it was possible to ignore the tragedy of two young lives lost. The way the original party was advertised which led to Sila's younger brother going to it and getting into a fight; the actions of the aggressive white 'security' men who attacked Sila; the racial undercurrents in this city which burst out that night and again in the subsequent threats to Sila's life, and which were manifested in the way the trial was covered in The Press.

Sila was sentenced to life with a minimum non-parole period of 17 years, less than the 20 years the prosecution had called for. There was an outcry about the sentence being too lenient and after the trial Harry Young, Jane's father, called him a "thug" and "scum" whose punishment should have been "a violent death".

When I asked Sila's barrister why a change of venue had not been sought given the hostile attitudes towards his client in Canterbury, at first he couldn't remember whether they had applied for it, then said they had decided Sila would face as much antipathy wherever he was tried. 

It is interesting that, 20 years earlier, another racially charged case – that of Peter Holdem – was relocated to Dunedin because a fair trial could not be guaranteed in Christchurch.  Such was the antagonism towards Holdem, who is Mâori, a petition had been circulated prior to the trial calling for reinstatement of the death penalty so he could be executed. 

Different times and different crimes obviously but it's interesting that Sila's notoriety was more widespread than that of a paedophile and child killer.  For that we can thank social media.

I have absolutely no doubt that, had Lipine Sila been white and the son of people of affluence and influence, had he been fleeing a gang of aggressively angry brown men one of whom had hit him on the head with a bottle, and had his victims been brown kids, he'd have been charged with manslaughter.  If he had been charged with murder I don't doubt that a Christchurch jury would have found him guilty of a lesser charge.

I think this because of the many examples of obvious racial and class bias to be seen in the NZ criminal justice system.  It is so manifestly and consistently biassed against people of colour and poor people that my first reaction when I read the Losi Filipo story was to question it. 

Here's another tale of two young men who each killed someone.  The circumstances in both cases indicate that neither set out to kill but it may be fair to say that each behaved with reckless disregard for the probable outcomes of their actions. 

In 2002, 17-year-old Sharne Paul Van der Wielen, who is white, drove his turbo charged car at speeds up to 200 kph in suburban streets in Christchurch. Doing an estimated 180kph, he hit and killed a young Chinese student, XiaoXi Gao who was the only child of a judge.   He drove off, conspired with two friends to lie to the police and made racist statements about Asians when arrested. 

He was charged with, and pleaded guilty to manslaughter presumably because the police doubted they would get a conviction for murder given his age, ethnicity, family background, lack of previous convictions and the 'get out of jail free' card that the law and the public can deal when someone commits vehicular homicide. (1)

A year earlier, 15-year-old Alexander Peihopa, who is Mãori hit Michael Choy on the head with a baseball bat in the course of a robbery planned and committed by a gang of kids, the youngest of whom was 12.  Tragically, Choy was not found until several hours later and died of his injuries.  It was obvious the youngsters had not meant to kill Choy as they took him back to his car and left him there, but police contended that Peihopa had recklessly disregarded the probable consequences of his actions and, because of his background and the enormous amount of publicity around the case, the police knew they would probably get a murder conviction.

In his client's defence, Van der Wielen's lawyer said that 17-year-olds typically lack judgement and behave stupidly when behind the wheel of a car. This viewpoint was not shared by the judge who stated at sentencing that Van der Wielen had used his car as 'a lethal weapon' and the manner of his driving and his failure to stop could 'hardly have been more culpable'.  However, the judge still opted for the relatively lenient sentence of 5 years and suspension of license for 7.  

I don't know how much of his sentence Van der Wielen served as neither the media nor the law and order brigade are interested in him. Unlike Michael Choy, XiaoXi Gao's name has not been etched into the public consciousness.

The possibility that a 15-year-old, exposed to violent television and video games might not understand the probable consequences of hitting someone on the head with a baseball bat was rejected by the police, and Peihopa was charged with murder. The jury also rejected that plea of mitigation and, despite having already pleaded guilty to manslaughter and aggravated robbery, he was found guilty of murder and sentenced to life imprisonment. He was paroled in 2012 having served almost 10 years. 

These are both fairly typical of the general pattern of NZ justice. There is a definite bias towards poor and / or people of colour being arrested and charged more often, being charged with more serious offences, being found guilty more often and receiving harsher sentences.

Losi Filipo was lucky to have people of influence behind him and to be sentenced by a judge who seemed to be of the opinion that the law should not unnecessarily blight young lives. 

I guess it all comes down to what you see the purpose of the law being -  retributive or restorative and rehabilitative. 

if the logic behind the push to appeal Filipo's DWC is that he ended a rugby career (and put a modelling and singing career in jeopardy) so his career ought to be similarly blighted, then that is retributive and it's a small step away from the notion of an eye for an eye. 

Some thoughts on New Zealand justice : Part 1

The following two part post was written over the course of a week or so. Family commitments interrupted me and I decided to leave it in the form of a diary. Part 1 follows the story as it unfolds; and Part 2 looks at some other examples of the workings of NZ justice and how the media report on and react to it.

September 26th 2016 

Nicholas Delegat is a 19-year-old from an extremely wealthy family who was charged originally with aggravated assault of a female police officer, assault of a security guard, wilful damage and resisting arrest. He eventually pleaded guilty to assaulting a police officer in the execution of her duty, plus the other two charges. His legal team fought for months for name suppression and for a discharge without conviction.  

He was convicted and sentenced to community service and name suppression was lifted.  The case caused a great outcry because it seemed such an obvious exercise of wealth and privilege. 

The brouhaha about the lenient sentence has died down fairly quickly due mainly to the fact that it has been overtaken by an even more controversial sentencing decision.This time it's not a wine dynasty which has sought to influence the courts, it's the world of rugby – a wealthy and powerful surrogate family. 

The breaking of the Losi Filipo story is a serendipitous bit of timing for the Delegat family as it has had the effect of pushing Delegat Junior's story out of the headlines and off the social media radar. 

Losi Filipo is a 17-year-old who has a talent for playing the country's favourite game.  Presumably because he is seen as a future star, NZ rugby spread its blazers over him to protect him from what would be the usual consequences of his actions were he just any working class kid from Porirua. He pleaded guilty to four charges of assault and on August 16th the judge discharged him without conviction so as not to interfere with his promising sporting career.

In talking about this case I'm expected to make the standard obeisance to law and order – to condemn not just what Filipo did but also to condemn him and the rugby / booze culture that is presumed to have led to him acting as he did.

But the fact is that, as of today I do not know exactly what he did or why he did it.   All I know is what is in the public arena and at the moment that is dominated by a somewhat tabloidesque story on TV3's Newshub which focuses on Filipo's victims – especially on two young women who say that their lives and careers have been blighted by a brutal and unprovoked attack.

As well as punching the women in the jaw and the throat respectively, Filipo is said to have stomped several times on the head of one of the men who was lying unconscious on the ground.  

If a large, powerful man punches women in the head region, knocks a man unconscious and stomps on his head – those actions are serious enough to warrant the charges of injuring with reckless disregard and assault with intent to injure. The most serious of the charges carries a maximum penalty of 7 years. 

Filipo is very unusual in that, as a young man of colour, the system has treated him very leniently – it might be said it treated him with common sense and humanity. The acceptance that his stated remorse was genuine, the fact of his youth (he was 16 at the time of the offence), the understanding that a conviction would ruin his career and that incarceration might well put him on the path to an entrenched criminality  – these are not ways that the criminal justice system typically treats young men of colour who are charged with crimes of violence.  

I see no reason not to discharge without conviction where there is a compelling case for it. I want to see the sensible prosecution and sentencing of young people of previous good character but the reality is that this does not usually happen to anyone other than those who have people of considerable power and influence on their side.  

The fact that Filipo, because he is good at rugby, was lucky enough to have such people on his side is not in itself a bad thing; the bad thing is that so many do not. 

September 27th

Filipo has terminated his contract voluntarily. A Stuff headline announced that he and Wellington Rugby have been "judged in the court of public opinion".  The views of the public I have read on social media range from racists bellowing for him to be deported, to justifiable concern about this being another example of the all too prevalent violence in this country.

September 28th

That arbiter of good taste and moral probity Paul Henry has weighed in on the debate and NZ Rugby has apologised to the victims and their families. I suppose it is better late than never but what are they apologising for?  For the fact that Filipo is a rugby player? For having used their influence to effect a discharge without conviction? For presiding over a culture in which these sort of incidents are all too common place? Or all of the above?

September 29th

In response to the hue and cry in mainstream and social media, the Solicitor General has recommended that the judge's decision be reviewed. The victims and their families are said to be "blown away" by this development.

Anonymous law experts are claiming the decision has nothing whatsoever to do with the outcry in social media.  Yeah right.

John Kirwan has apologised on behalf of all rugby. 


September 30th 

A man who tried to organise a protest against Filipo's contract with the Wellington Lions but  was upstaged by Filipo's decision to terminate it himself, got his moment in the media spotlight by revealing that he had been threatened on Facebook.

Also on Facebook, Eliota Fulmaono-Sapolu posted edited highlights of the judge's ruling and claimed that the media coverage has been slanted and exaggerated to sensationalise the case at the expense of Filipo and his family. He has a point. 

October 1st

Some of the obvious questions – was this an unprovoked attack and how severe it was – have been answered with the release of official documents. According to the judgement, the gravity of the offending is "unquestionable and inescapable". It was a case of "fairly serious" street violence.  Filipo's attack on one of the men involved punching and stomping which rendered the man unconscious. The charge for this was injuring with reckless disregard. The two charges of male assaults female were  "more in the nature of pushing and shoving". The victims indicated that the offending had a serious effect on them. 

There are questions that remain unanswered.  Why wasn't Fliipo tried in the Youth Court? If the male assaults female charges were in the nature of "pushing and shoving", why did Newshub report them as a punch to the jaw and throat severe enough to require plastic surgery on one and threaten the singing career of the other?  

Was the judge wrong about the nature of the offence? Were the victims talking up their injuries and how they were caused for their own reasons? Or did Newshub whip it up for their own reasons? Why did it take so long for the case to be publicised? Who approached who – i.e. did the victims approach TV3 with it or the other way round? 

I think the judge was right to say that imprisonment was not warranted. Having made that decision he then needed to consider the effects on Filipo of a conviction. In deciding to discharge without conviction he was influenced by several factors including Filipo's youth, his remorse, preparedness to pay reparations and enter restorative justice (refused by his victims)  and his previous good character. 

So – as critical as I am of the world of rugby and of the whole toxic locker room culture – I see Filipo as one who got away.  Or, as things now stand, as one who got away only to be recaptured and publicly flogged – thanks in no small measure to a social media primed and fired by Newshub.  

Whatever the stuff that went on behind the scenes, if Filipo was genuinely remorseful; if this incident had made him a better, more mature and more controlled person, then surely that is all to the good. Let's see more humane and sensible sentencing. I want to see the CJS behaved with kindness and leniency when it deals with ALL young first time offenders. I'd rather it considered what terrible harm all forms of prison WILL do to most young people and how convictions at critical stages can devastate lives. If that means sometimes some people get away too lightly, then that's far better than people typically being treated too harshly. 

The many facets of abuse

How the public and / or the various agents of the state respond to the abuse of women is tempered by many things. The social standing, age, ethnicity, attractiveness of both the victim and the accused will often come into play.  

It's not so long ago in NZ that an outcry about a stripper being badly treated by sporting icons would have been - well, improbable - unless there was a reason why the state, the media or the public wanted to target particular sporting icons. 

The myriad of statements that were made about the ill-treatment of a woman at a rugby team's end of season party were very welcome as anything which exposes and weakens locker room culture is a good thing.  

But people might like to take a moment to ponder how to square all that condemnation with the way that David Cunliffe was mocked and vilified by opposition politicians and influential media commentators for his statement in support of abused women in the build up to the last election. 

Many of those who have been puffing themselves up with self righteousness are hypocrites, and hypocrisy - when mixed with political opportunism - becomes an especially odious thing.

The mockery of Cunliffe for expressing solidarity with abused women has its roots in, and appeals to the same macho, 'laddish' culture that led a group of young, intoxicated sportsmen to act abusively towards a woman who they had employed and who was on her own with them. The sexual element aside, when a group of physically powerful young men gang up on a solo woman, it is an especially unpleasant act of bullying. The noxious culture that gave rise to the aggressive and predatory behaviour of some of the players, also resulted in a lack of empathy or a lack of courage on the part of those who were not involved but who failed to intervene to stop the abuse and to protect the woman.  

It's good that rugby is not being let off the hook but I wish there was as consistent and as loud an outcry from the great and the good about the daily abuses of women in our society. 

I am reminded of a case which involved a woman who lived in terror of and in thrall to a violent and controlling man. He beat her 7-year-old child so badly the boy died from his injuries eight days later.  The woman was charged with failing to provide the necessities of life for not getting medical help for her son. She said she did not do because she had not realised how bad his injuries were and her violent partner had threatened to kill both her and her child if she called a doctor.

She was advised to plead guilty and to throw herself on the mercy of the court. That proved to be bad advice.  She had been bailed to live with family in the North Island and as a result was sentenced in Auckland where the judge sentenced her to 3 years in prison. 

In passing sentence the judge acknowledged that she loved her son and was 'oppressed by her abusive partner, however, whilst he had been at work, her 'good sense should have asserted itself.' He went on to say that he hoped the sentence would act as a 'deterrent' to other women who might be tempted to fail their children in similar ways.  

I don't recall any outrage about the way that woman had been treated - first by her violently abusive partner and then by those who decided to charge her with a crime, by the legal aid lawyer who advised her to plead guilty to that crime, and by the judge - who did not just incarcerate her for three years but who decided to use her as a soap box from which to declare his support for children's rights. 

She served a year in prison and the last I heard of her she was still so stricken with guilt and grief she had contemplated suicide. 

She is powerless - poorly educated, working class and Mãori. The judge is powerful - male, educated, affluent and white. 

He is to be commended for his stance on children's rights but is to be roundly criticised for his complete lack of understanding of the dynamics of a violently abusive relationship. It is well known that victims of domestic violence can be controlled by their abuser even at a distance; that physical and emotional abuse can paralyse a person and reduce their ability to act independently.  

Yes, the child's mother should have sought help; she should have known how badly injured her son was; she should have put him before her own safety, she should have trusted the authorities to protect her and him from her abuser.....'should have ' is all too easy to say from a comfortable distance. 

When a tired and over-worked doctor left her toddler locked in her car because she'd forgotten she had him with her and the child died of hypothermia - it was seen as a tragic accident in which the woman was in need of sympathy and support. 

The cases are not the same obviously but the possibility that a tired, harassed, preoccupied mother could make a terrible mistake that she will live with all her life was - quite properly - accepted by the police and the public.  

The possibility that a physically beaten and psychologically abused woman could be so in terror of her abuser that she was rendered incapable of independent action, was not. 

And now onto the vexed question of Losi Filipo ......