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.