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.

Discharge without conviction on cannabis charges

In what could be seen as a loophole in drug laws a Nelson woman has been discharged without conviction for importing medical cannabis products because she got a prescription for it overseas.

Radio NZ reports: Nelson medical cannabis case

Rebecca Reider, who has complex chronic pain syndrome, was facing five charges of possession of cannabis oil and other products.

She was also charged with importing cannabis products, including medicated chocolate.

However, her lawyer Sue Grey was able to use a clause in the Misuse of Drugs Act to argue the law allows exemptions, when the drug is prescribed overseas, for up to one month’s supply

Ms Reider, who is from California, had obtained a medical prescription for the cannabis product when she was visiting family. She later posted herself the cannabis chocolate to her Nelson address.

A judge in Nelson this week discharged Ms Reider without conviction on all charges.

Sue Grey told Nine to Noon if her client had had the medicated chocolate with her when she came back to New Zealand it would not have been an issue under the legal exemption. It was only because she posted it and it was intercepted that she was charged.

The section of the Misuse of Drugs Act that the case was argued on:

“A person, may, while entering or leaving New Zealand, possess a controlled drug that’s required for treating a medical condition, of the person – or of a person in their care or control – if the quantity of the drug is no more than one month of supply and it’s lawfully supplied to the person overseas and supplied for the purpose of treating a medical condition.”

So…

She said her clients’ cannabis was legally prescribed overseas by a doctor, it was a proper medicated product and, if brought back to New Zealand by Miss Reider, it seems it would have fallen within the law’s one month exemption.

However, the judge accepted the consequences of Ms Reider’s offending (in receiving it in the post) were the same, and ruled that she be discharged without conviction.

Ms Grey said the whole purpose of the Misuse of Drugs Act was to protect people against dangerous things, but the medical issue was completely different, with different considerations.

“The way I read it, it’s quite a simple job for parliament, or the minister, to reschedule medicinal drugs and make it so much easier for people to access them when they need them.”

Associate health Minister Peter Dunne recently announced that the Ministry of health would review procedures for dealing with applications to use medicinal cannabis.

Meanwhile there have been reports that Martin Crowe had been self medicating with medical cannabis over the last year of his life.

Mike Selvey at The Guardian:  Martin Crowe: a batting master craftsman who was ahead of his time

It is just under a year, during the Cricket World Cup, that last I saw him.

That day, he had told me that he had been given a 5% chance of living for a further year. The odds were correct: he was 13 days shy of that 12 months when he passed away peacefully. He had been diagnosed with follicular lymphoma a couple of years previously but appeared to be in remission, cleared, until the cancer returned, in the virulent terminal form of double-hit lymphoma.

The apparently hale nature of his condition was a camouflage. When he was awake, he said, he did indeed feel good, but rather than undergoing yet more chemotherapy he was by then self-medicating with liquid marijuana and sleeping 15 hours a day. Happy hours though, he said.

It seems like it is a matter of time before medical cannabis becomes easier and legal to obtain in New Zealand.

Disturbing handling of child assault case

Police have admitted ‘mishandling’ a case of assault involving a father (a “prominent Tauranga professional involved in charity work”) and his eleven year old son, but the sequence of events is disturbing.

Stuff report Police mishandle assault on 11-year-old.

The boy told police that after a dispute over a phone in November, 2012, his father slammed his head twice on to the concrete floor of their garage, dragged him up some stairs, banged him against the walls, dragged him across the lounge floor, sat him down and slammed his head on to the kitchen table.

He ran from the address, went to his grandmother’s house and was taken to Tauranga Hospital with bruising to his neck and arms and swelling and bruising to his head.

He also complained of headaches and sore eyes and according to his mother, still suffers headaches, nausea and fatigue.

But the handling of the case included:

  • Police failed to return the boy’s mother’s phone calls.
  • Police failed to keep the mother and her son informed of the fact they were reducing the charge against the offender.
    The offender was originally charged with assault on a child but police did a plea bargain and reduced the charge to common assault.
  • A senior officer admitted police had watered down the summary of facts.
    Police admit their summary of facts presented in court, which talked about the victim “falling over a suitcase” as his father “marched him to the dining room . . . to join the rest of the family for the evening meal . . . did not reflect the full seriousness of the assault”.
  • The father pleaded guilty last year and was discharged without conviction.

So police kept diminishing the case to the extent that the man got off without a conviction with permanent name suppression. And it didn’t end there.

Police further enraged the boy’s mother last week when Loper said in a statement to the Sunday Star-Times that the charge was reduced because police believed there was no prospect of a conviction on the original charge due to a lack of “evidential sufficiency”.

“I’m shocked and disbelieving,” said the mother. “In the time they sat with me they never once said lack of evidence was why they downgraded the charge.

“They said it was to protect my son from going to trial. He wanted to go to trial and to tell the judge what happened to him. His words were ‘apparently I’m just a child and what I say doesn’t matter’.”

Lopez told the Star-Times:

“Police take all assaults on children extremely seriously and this was no exception”.

There seem to be disturbing exceptions to dealing with this assault seriously from the victim’s point of view. But the ‘reputation’ of the man who assaulted the boy was taken seriously.

Judge Josephine Bouchier permanently suppressed his name, after his Queen’s Counsel argued that convicting and naming him would damage his reputation and affect his charity work.

That’s not the end of it.

The offender has subsequently pleaded guilty to charges of breaching protection and parenting orders by making unauthorised contact with his son. He will be sentenced in the Auckland District Court later this month.

The timing of this isn’t clear but it must mean either the assault occurred while breaching a protection order, or more likely after the assault a protection order was put in place and the father has breached it.

Whichever it was surely that’s reasonable grounds for beefing up rather than watering down the assault charges.

Instead a man who allegedly bashed his son’s head into a concrete floor and a table – the boy received verified head injuries – was able to get off the assault charge.

Loper said in his apology letter that Turner would make time to meet the victim, now 13, and explain the decision to change the charge was “based on securing an acknowledgement of guilt only and was not reflective of the content of [the victim’s] interview.”

An acknowledgement of guilt was secured which led to the man securing permanent name suppression and securing a discharge without conviction.

Justice and the boy seem to have been very poorly served.

Stink justice – doctor beats wife, threatens to kill, cheats, discharged

It is very difficult to accept that this case is fair justice. A doctor on significant assault charges has been discharged without conviction so there is no adverse affect on his employment. NZ Herald reports in Would-be surgeon avoids wife-bashing conviction:

“It seems to me your behaviour was out of character, with a background of particular stress, both marital and personal, and I accept Mr Schulze’s submission that you are at a low risk of reoffending.

“It is fair to say any conviction is going to impact adversely on your employment.”

Judge Cooper discharged Rose without conviction and ordered him to pay $3000 to the prosecution.

Oliver Rose appeared in the Rotorua District Court on three charges of assaulting a female, all relating to his wife. The three offences which Rose had pleaded guilty to in August.

  • In January this year, Rose dragged his wife outside to the ground where he repeatedly kicked her in the back of the leg, leaving her with serious bruises.
  • In February, Rose had grabbed his wife by her hair and repeatedly slapped her on both sides of her face.
  • In June, Rose threatened his wife, saying he would kill her if she had been with another man. He pushed her to the bed then held a beanie over her face.

That sounds serious to me.

Rose suspected his wife was having an affair, which led to his developing a relationship outside his marriage.

The suspicions of a violently jealous husband ‘led to’ him being a cheating prick – dreadful behaviour and a dreadful excuse for more dreadful behaviour.

The judge accepted Rose was “at a low risk of reoffending” – what if he becomes stressed again? What if he becomes jealous again?

Not even an insistence that Rose take measures to address his violent tendencies.

Are doctors exempt normal standards of responsibility and justice?