Appeal allowed against Filipo discharge

Today a High Court judge allowed the appeal against Losi Filipo’s discharge without conviction.

The High Court’s decision to set aside the discharge without conviction for Losi Filipo’s assault on four people means the Wellington rugby player could face jail.

Filipo, 18, pleaded guilty to an early-morning assault, which happened last October, when he was still at school.

He escaped conviction when he appeared in Wellington District Court in August, when Judge Bruce Davidson took into account the effect on the rugby career of the Wellington under-19 wing and fringe member of the Lions squad.

An appeal by the Crown was heard by Justice David Collins yesterday.

In a judgment delivered this afternoon, he said the appeal should be allowed, and set aside the discharge without conviction.

Having set aside the discharge, Justice Collins said he would normally substitute the District Court’s decision with his own, but Filipo had only pleaded guilty due to the sentence indication that he would be discharged without conviction.

He would allow Filipo to vacate his guilty plea if he wanted to, in which case the matter will be sent back to the District Court for trial.

In Justice Collins opinion, the starting point for sentencing should be two to two and half years’ imprisonment.

In the ruling, Justice Collins notes an affidavit from the head of the police prosecution service stating Filipo’s victims had notified police that they believed an appeal should be filed because the “factual basis of the sentencing was inaccurate”.

The police prosecution service explained that either through an oversight or miscommunication within the police prosecution service, Filipo’s case was not referred to the Solicitor-General when it should have been.

Justice Collins also noted the sentencing judge did not refer to the fact Filipo stomped on the head of one victim.

“Those stomps were particularly serious and occurred when Gregory Morgan was already unconscious. This is the most disturbing aspect of Losi Filipo’s behaviour. It was potentially lethal conduct and required specific consideration,” Justice Collins said in his notes.

More from NZ Herald High Court allows appeal to Losi Filipo discharge without conviction ruling

So if Filipo chooses to reverse his guilty plea the case will go back to the District Court for trial, otherwise Justice Collins will sentence Filipo.

Link to the decision: Police v Filipo [2016] NZHC 2573 (27 October 2016)

JUDGMENT OF COLLINS J

A The application for an extension of time to seek leave to appeal is granted.

B The appeal is allowed.

C The discharge without conviction is set aside.

Proportionality

[82] Fourth, Losi Filipo’s offending was serious and the direct and indirect consequences of a conviction were not so significant as to have been out of all proportion to the gravity of his offending.

[83] I am therefore drawn to the conclusion the appeal should be allowed.

Next steps

[84] Having determined the appeal is allowed the immediate consequence is that the decision discharging Losi Filipo without conviction is set aside.

[85] Normally I would substitute the decision of the District Court with the decision that I believe should have been made. In this case that would result in convictions. However, in the present case, Losi Filipo pleaded guilty after being given a sentence indication that he would be discharged without conviction. In these circumstances, the appropriate course of action is to allow Losi Filipo the opportunity to vacate his guilty plea if he so wishes. If Losi Filipo wishes to vacate his guilty plea then the case will be remitted back to the District Court for trial.

[86] I will resume the hearing of the appeal at 9.30 am on 2 November 2016 to enable a decision to be made as to whether or not the case will need to be remitted back to the District Court or if any sentencing should be dealt with in this court.

Leave a comment

21 Comments

  1. patupaiarehe

     /  27th October 2016

    IMHO, a custodial sentence isn’t in anyone’s best interest. The damage is done, and if he is truly sorry, perhaps fronting up with a sincere apology, and agreeing to take disulfuram daily, might just work in his favour. He would be a fool to change his plea now.

    Reply
    • patupaiarehe

       /  27th October 2016

      The stinky thumber obviously doesn’t know what disulfuram (aka Antabuse) is.
      https://en.wikipedia.org/wiki/Disulfiram
      He shouldn’t drink if he gets nasty, and what better way to ensure he doesn’t?

      Reply
      • Kitty Catkin

         /  27th October 2016

        It would be nice if it worked on abusive natures as well as liquor.

        I suppose that a determined drnker will do it anyway-look at the ones who drink meths and turps. I once put a tiny bit of meths on a cold sore when I had nothing else, and accidentally touched it with my tongue….I still shudder at the memory….

        Reply
        • Klik Bate

           /  27th October 2016

          But you don’t just drink ‘pure’ meths Kitty – you mix it with a touch of Sarsaparilla Cordial. Not sure how that would react on cold-sores though?

          Reply
          • Kitty Catkin

             /  27th October 2016

            I thought that it might dry it before it spread, and I knew that meths was something that would dry skin-it seemed worth a try in an emergency. I think that it did have some effect. But if barely touching it with a tongue tip was so appalling, what drinking it must be like, even with soft drink (I have seen one or two men with large soft drink bottles that MAY, of course, have contained nothing else) is beyond my imagination.

            Reply
            • Kitty Catkin

               /  27th October 2016

              The meths was neat, of course. not diluted with sarsaparilla, and just dabbed on.

              People drink perfume-what a waste. And expensive. I use Revlon’s Charlie. and even that’s $10-12 in a sale.

        • Corky

           /  27th October 2016

          That was the additives, not the pure meths. The additives are meant to make it undrinkable. I think you will agree.

          Reply
          • Kitty Catkin

             /  27th October 2016

            It was beyond nauseating-and yet people drink it. I would have thought that it would make someone sick before they’d be able to get enough down, no matter what they put with it. In a book I have about a pilot coming down in the Sahara, when he became really desperate he thought that he could force down the liquids in the first aid box, no matter how vile they tasted. His body wouldn’t let this happen. I forget the details, just that it was physically impossible.

            Reply
            • patupaiarehe

               /  27th October 2016

              Back in my ratbag youth Kitty, I knew a guy who had access to pure ethanol from his workplace. Watered down 3:1 with water, & a little flavour from the homebrew shop, it was as good as whiskey/rum/gin/whatever 😀

            • Kitty Catkin

               /  28th October 2016

              Yes, and one heard about people dying because they drank stuff like that.

  2. Klik Bate

     /  27th October 2016

    Finally – a Judge with a bit of common sense. And obviously in touch with how the vast majority of normal Kiwis think and feel.

    Onya’ Davy :!:.

    Reply
  3. Corky

     /  27th October 2016

    This is a hard one. No easy decisions here. If he heads back to court he may face a judge and jury so head-shy given the case, he would probably go down for 3 years. However, if his lawyers could sway the jury selection that may improve his odds. Can he choose a judge only trial?

    Ditto if he keeps his guilty plea. Probably the best he could hope for is 12 months HD and a fine plus community service. That’s if he hires a mind-buster to work on Justice Collins.

    However, given the way our justice system works….anything is possible. He may walk again.

    Reply
    • Kitty Catkin

       /  27th October 2016

      It could be hard for people to remember details from then. I had hideously traumatic things going on at that time, and some of the details are blurred from being traumatic, not because I have forgotten-but others are just forgotten because the memory can’t retain everything.

      Reply
  4. Alan Wilkinson

     /  27th October 2016

    Best result would be a hefty compensation payment obligation to his victims and freedom to go out and earn the money to pay it. Penalty for non-payment within specified time is jail.

    Reply
    • Kitty Catkin

       /  27th October 2016

      I agree. Prison’s no use to the victims. If the two heartless hags who ploughed into me and left me squashed on the road had been caught, what use would their going inside be to me ? I’d rather that they had to pay me and the taxpayer.

      Reply
      • Klik Bate

         /  27th October 2016

        Do you think you would have been able to pick them out in an Identity Parade, Kitty ?

        Reply
        • patupaiarehe

           /  28th October 2016

          Trick question Kitty. They both look quite fetching to me KB 😉

          Reply
        • Kitty Catkin

           /  28th October 2016

          Hardly. Could you identify someone who hit you from behind and left you seriously injured and unconscious on the road ? But they were seen by someone else, who tried to stop them and failed.

          Reply
          • Kitty Catkin

             /  28th October 2016

            I wasn’t just concussed, I was lucky to survive. I don’t know how long I was unconscious, and my injuries included having my left arm ripped from its socket and it and the shoulder shattered-I spent several hours in surgery having it all reassembled and encased in metal. My rings were so crushed that the jewellers couldn’t believe that the person wearing them had survived.

            It’s hardly surprising that I couldn’t identify the two women in the car. Most people couldn’t identify someone whom they didn’t see because they hit them from behind and left them bleeding, broken and unconscious for other people to take care of.

            Reply

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