Tuesday, 4 October 2016

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 injuring 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. 

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