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.

What now for Lecretia Seales?

Of course there’s little left for Lecretia Seales except her funeral. Except that in her memory it’s possible she might prompt some political action on assisted dying or euthanasia.

In a media conference today her husband Matt Vickers said how disappointed Lecretia and he were with the news that her legal action had been turned down by the court (Judge Collins).

NZH reports Lecretia Seales’s husband: ‘Her reaction utterly broke my heart’

“On Tuesday night I relayed Justice Collins’ decision to Lecretia. I explained she would not be able to seek assistance to die, and nature would need to run its course, and that her mother and I would do everything we could to make her comfortable and pain free.

“Lecretia listened to me as I explained the decision. Even though she couldn’t speak, she was able to share her feelings through her expression. There was no mistaking her response.

“She was hurt and disappointed. She fixed me with a stare with her good eye as if to say, ‘isn’t this my body? My life? Her breath slowed and she turned her head away. Her reaction utterly broke my heart.”

Very sad but not really surprising. Judge Collins has said that Parliament needs to deal with it.

Mr Vickers said the judgment was not what they wanted, but did make it clear that the law is “paternalistic, overly-protective and rooted in the past”.

He said Parliament had to work across party lines to ensure the issue reached select committee stage. That would enable the facts and overseas evidence to be properly examined and debated.

“We must respect the autonomy and dignity of terminally ill people like Lecretia and say, ‘yes, we respect your wish to go your way’. Anything else is paternalistic. Anything else says, ‘I know better than you’.
“I implore our Prime Minister, who only two weeks ago said publicly that he would welcome a debate, to actually initiate that debate and to not defer it and wait for a private member’s bill, which may not see it debated for months or years.

“This debate needs to happen now. Prime Minister, I urge you to give the public what they want and start the debate. I urge you to follow my wife’s example and to be a courageous leader…let us give Lecretia her legacy.

That sounds like something worthwhile for Lecretia’s legacy.

It’s now up to the MPs and the parties to do something about it.

Lecretia Seales judgement to be announced on Friday

RadioLive report:

Lecretia Seales & attorney have received full judgement from Justice Collins tonight. They’ll hold press a conference tomorrow in Wellington

Tim Fookes Morning Show

UPDATE: The family of terminally ill Wellington woman Lecretia Seales say they’ve received a decision from the High Court in her right to die case.

But they say the judgement won’t be made available to the public until tomorrow afternoon.

Breaking: the Lecretia Seales judgment is in. Embargo to be lifted at 3pm tomorrow, with press conference from family to follow after.

Lecretia Seales case closes with thanks from judge

Radio NZ sums up the final day of the Lecretia Seales right-to-die case in Judge thanks woman for right-to-die case.

Lecretia Seales, 42, has terminal brain cancer and said in her statement of claim she will face a choice between taking her own life or suffering a slow and painful death, if a doctor cannot lawfully help her die.

Ms Seales wants clarification of whether the Crimes Act prevents a doctor from helping her to die without then being charged themselves.

If Justice Collins finds it does then she wants him to consider whether a ban on assisted dying under the Crimes Act is contrary to her human rights under the Bill of Rights Act.

Solicitor-General Michael Heron, QC…

…argued that New Zealand’s constitution meant such changes had to be made through Parliament rather than through a court; Parliament had considered euthanasia three times in recent years and each time rejected a law change enabling it.

Human Rights Commission lawyer Dr Matthew Palmer:

 the court had the jurisdiction to make a ruling.

Victoria Casey, a lawyer for vulnerable persons umbrella group Care Alliance, said…

…it would effectively legalise assisted dying on demand, leaving groups such as the elderly and the disabled at risk.

Euthanasia was legal in the Netherlands, where 97 people with dementia there had been euthanised in 2013, and there had been a “dramatic” increase in the euthanasia of people with long-term psychiatric illnesses, she said.

“When you combine this with New Zealand’s well-documented problems with elder abuse and the neglect and abuse of the elderly and disabled in care, the prospects are … chilling.”

Voluntary Euthanasia Society lawyer Kate Davenport, QC, said…

…what Ms Seales wanted her doctor to do by prescribing medicine to relieve an aspect of her suffering could not be classed as either homicide nor assault.

“If what Ms Seales’ general practitioner is seeking to do can properly be defined as treatment, then it doesn’t fall within the definition of the Crimes Act,” she said.

That was particularly so, given it was up to Ms Seales to decide whether or not she took the medicine prescribed.

Ms Seales’ lead lawyer Dr Andrew Butler said, in closing…

…sometimes ethics drove the law and sometimes the law drove ethics.

He said it would be wrong to leave the issue to Parliament to deal with.

“You cannot allow the Crown to come along and say ‘leave it to Parliament to have a debate about it’ when there’s no prospect of such a debate occurring and there has never even been select committee hearings on the topic,” he said.

Justice Collins closed the case by…

…thanking Ms Seales for taking the action and said he would endeavour to make a quick decision.

“It is obviously a matter of extreme importance to you but also is extremely important to the way in which medicine and law is conducted in this country,” he said.

He told the lawyers their submissions, both written and oral, had been “exceptional” and said it had been a “privilege” to listen to them.

“I only hope that my judgement will ultimately do justice to the quality of those submissions.”

Some will be happy with his judgement, some won’t.

I can’t find any indication of when the judgement is expected to be made.