IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-000080 [2016] NZHC 2573
BETWEEN NEW ZEALAND POLICE
Appellant
AND
LOSI FILIPO Respondent
Hearing: 26 October 2016 Counsel:
S Carter for Appellant
N J Sainsbury for RespondentJudgment:
27 October 2016 at 3.30 pm
JUDGMENT OF COLLINS J
AThe 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.
PART I: BACKGROUND
Introduction
[1] The issues raised by this appeal are encapsulated in the following four questions:
(1) Did the District Court Judge err in law when he discharged Losi
Filipo without conviction in relation to the following four charges:
NEW ZEALAND POLICE v FILIPO [2016] NZHC 2573 [27 October 2016]
one charge of injuring with reckless disregard;1 one charge of assault with intent to injure;2 and two charges of male assaults female.3
If so,
(2)Should the police be granted an extension of time to seek leave to appeal?
If so,
(3) Should the appeal be allowed?
(4) What should be done if the appeal is allowed?
Background
[2] At 2.00 am on 11 October 2015 a violent incident occurred in a central Wellington street. The protagonists were Losi Filipo, then aged 17 and Sam Filipo, his 18 year old brother.
[3] The four victims were two women and two men of a similar age to the Filipo brothers.
[4] The four victims were walking along a footpath. The Filipo brothers were on the opposite side of the road. They crossed the road at which point Sam Filipo yelled to the victims who ignored him and kept walking. The Filipo brothers followed the victims, challenging them to a fight. The victims said they did not want
to fight.
1 Crimes Act 1961, s 189(2).
2 Section 193.
3 Section 194(b).
[5] Losi Filipo then stood in front of Gregory Morgan, the first victim. Losi Filipo grabbed Gregory Morgan by the collar with one hand and with his other fist he punched Gregory Morgan to the ground. Gregory Morgan was knocked unconscious. While he lay on the ground Losi Filipo stomped on Gregory Morgan’s head about four times.
[6] Losi Filipo then shoved Olivia Samuel, the second victim in her throat, causing her to lose balance and fall to the ground. The third victim, Kelsey Odell, was then struck on her chin by Losi Filipo. She fell to the ground.
[7] Sam Filipo had by this stage punched the fourth victim, Hayden Williams, in his eye. They then traded punches. There was a pause in their fighting after which Sam Filipo grabbed Hayden Williams and partially restrained him while Losi Filipo punched Hayden Williams in the head.
Victims’ injuries
[8] Gregory Morgan was taken to hospital by ambulance and kept there till later that morning. His victim impact statement explains he had to take six months off work. He suffered bruising, scratches and severe concussion. He had been a promising rugby player. He has been told…
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- AGLC
- Police v Filipo [2016] NZHC 2573
- Case
- [2016] NZHC 2573
- Decision Date
CaseChat Overview and Summary
The court found that the District Court had indeed erred in law by not adequately considering certain aspects of the gravity of the offence, particularly the seriousness of Filipo's attacks on the victims, including stomping on an unconscious victim's head. Additionally, the court held that the District Court had overstated the adverse consequences of a conviction for Filipo, particularly in relation to his prospects of pursuing a professional rugby career. The court concluded that the appeal should be allowed because the direct and indirect consequences of a conviction were not out of proportion to the gravity of the offence.
As a result of the appeal being allowed, the discharge without conviction was set aside. The court opted to allow Filipo the opportunity to vacate his guilty plea if he wished, and if he did so, the case would be remitted back to the District Court for trial. The hearing was resumed to determine the next steps, including whether any sentencing should occur in the High Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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