Police v Filipo
[2016] NZHC 2573
•27 October 2016 at 3.30 pm
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 to stop playing rugby because of the risks of further head injuries.
[9] Olivia Samuel received bruising to her throat and a sore neck and collar bone. She had to take a day off work.
[10] Kelsey Odell received a scar on her chin, a “deep cut inside [her] mouth” and a “swollen jaw”. She states in her victim impact report that the scar on her chin has caused her to lose confidence in her work as a part-time model. She has had to receive counselling to help her deal with the assault.
[11] Hayden Williams says in his victim impact statement that he suffered a broken finger and as a consequence he could not continue his work as a builder for about three months. He describes in his victim impact statement the emotional
shock he suffered as a result of what occurred on 11 October 2015 and says he is
“going to live with the effects of this assault for the rest of [his] life”.
Sam Filipo
[12] Judge Davidson, the District Court Judge whose decision is the subject of this appeal, was informed that Sam Filipo had previous convictions. The sentencing notes of Judge Walker, who sentenced Sam Filipo in the Porirua District Court on
26 June 2016 refers to him having just one previous conviction for disorderly behaviour.
[13] Sam Filipo pleaded guilty to assaulting Hayden Williams with intent to injure. He was sentenced to four months’ community detention, 12 months’ supervision and ordered to pay $1,500 by way of reparation.4
Losi Filipo
[14] At the time of the offending Losi Filipo was in his final year at St Patrick’s College in Silverstream (Silverstream), a school that is renowned for the sporting and scholastic achievements of many of its students.
[15] Losi Filipo attended that school because of the efforts of a voluntary youth worker who recognised his potential if he could be nurtured and shielded from the adverse social environment he was experiencing as a young boy in Waitangirua.
[16] The move to Silverstream and the continued mentoring of Losi Filipo by the voluntary youth worker and others ensured Losi Filipo enjoyed five years at Silverstream.
[17] The material before me suggests Losi Filipo at times struggled with his academic studies at school. He developed however into being an exceptional rugby player. In 2012, when he was in Year 10, Losi Filipo was selected for the Silverstream First XV. He was also contracted to the Warriors Rugby League Club
on a four year contract. In 2015 he was selected for the New Zealand Secondary
4 New Zealand Police v Filipo [2016] NZDC 19043.
School side. A social media site rated Losi Filipo as being in the top five school boys playing rugby in New Zealand that year. In 2015 the Wellington Rugby Football Union (WRFU) entered into a two year contract with Losi Filipo.
[18] There is more to Losi Filipo than being a promising rugby player. He was, up until the time he was charged, doing teacher aid work at a low decile school where he was trying to help at risk youth. He had also been doing voluntary work with the Ignite Sport Trust four days a week. After he was charged Losi Filipo took up part- time work as a car groomer from which he earned $1,000 to pay reparation to the victims. He also attended counselling to address the causes of his offending.
Evidence in the District Court
[19] The evidence before Judge Davidson included an affidavit from Losi Filipo dated 14 June 2016 in which he expressed remorse for his actions. He said that he could not remember much of what happened on the night in question but that he:
… had been walking towards the railway station with [his] brother Sam and another friend. Sam was ahead of [them]. For some reason [Sam] got into an argument with a group of guys. [He] remembered once [he got] there one of them argued with [him]. He [then] felt [his] face go numb. [He] had a cut lip. [He] reacted to that. [He] accepted that [he] became angry and lost control of what he was doing.
[20] In the next paragraph of his affidavit Losi Filipo said that he understood the two young women tried to break up the fight and got hit by him. He said he did not remember hitting the young women and that he would not have deliberately tried to hit them “if [he] had realised they were women”. He accepted he must have hit them and that he was “responsible for any harm that happened to them”. Losi Filipo said he said he was “very ashamed to have become involved in this incident”.
[21] Losi Filipo explained in his affidavit the voluntary and paid work he had been engaged in, which I have summarised in [18]. He also explained the counselling programme he had attended and that he wanted to pursue his ambition to become a professional rugby player.
[22] Mr Williamson, the voluntary youth worker who had provided considerable help and guidance for Losi Filipo from an early age provided a detailed affidavit setting out an explanation of the extensive support he and his family had provided Losi Filipo.
[23] Mr Alcock, an agent for rugby players, provided a detailed affidavit in which
he traversed Losi Filipo’s rugby career to date. He said:5
Predicting whether a player will become a professional rugby player is a bit like predicting the weather. We work on what we see and probabilities. I can say that I would expect Losi [Filipo] to become a professional player either in NZ or overseas so long as he remains committed and associates with the right people …
[24] Mr Alcock acknowledged that:6
… very few people in professional rugby in NZ would publicly say that a conviction would stop them signing a player for super rugby … However, what has become clear is that in recent years franchises have become very adverse to players who are capable of being trouble.
He said “that a serious assault conviction will make it much harder for Losi [Filipo]
to get a professional/super contract in NZ”.7
[25] Mr Alcock explained the principal overseas opportunities for a New Zealand professional rugby player are the United Kingdom, France and Japan. Mr Alcock focused upon Japan as a country in which Losi Filipo has the potential to play rugby. Mr Alcock explained that in his assessment it was unlikely Losi Filipo would get employment in Japan if he had a conviction for a serious crime.
[26] A number of letters and references were placed before Judge Davidson. Those letters and references included:
(1)A letter from a counsellor confirming Losi Filipo had attended six counselling sessions to understand the cause and consequences of his
conduct.
5 Affidavit of W D C Alcock, 9 June 2016 at [14].
6 At [16](a).
7 At [16](a).
(2)A letter from the WRFU explaining the processes that the Wellington and New Zealand Rugby Football Unions follow when a contracted player receives a criminal conviction. Those consequences include a disciplinary hearing, which can result in a range of penalties from a fine to termination of a player’s contract.
(3) A letter of reference from Losi Filipo’s former First XV coach.
(4)A letter of reference from the Sports Trust where Losi Filipo worked on a voluntary basis and two letters of support from individuals connected with that trust.
(5)A letter from a school deputy principal confirming that a conviction for a violence offence would preclude a potential candidate from being employed at that school.
(6) A letter of reference from the car grooming business where Losi
Filipo worked.
(7)A letter of reference from the school where Losi Filipo performed voluntary work as a teacher’s aid.
(8) Letters of reference from two former teachers of Losi Filipo.
(9)A letter of reference from the Petone Rugby Football Club, which is the club where Losi Filipo has played rugby since leaving Silverstream.
District Court decision
[27] On 15 August 2016, Judge Davidson gave Losi Filipo a sentence indication in which he said he would discharge Losi Filipo without conviction if he pleaded guilty
to the charges. That sentence indication was accepted.8 As a consequence,
8 New Zealand Police v Filipo [2016] NZDC 18820.
Losi Filipo was discharged without conviction pursuant to s 106 of the Sentencing
Act 2002 (the Act).
[28] In his sentence indication decision, Judge Davidson said that the “genesis of the incident [was] not entirely clear”. He later said the assaults were “seemingly… unprovoked”.9
[29] Judge Davidson assessed the gravity of Losi Filipo’s offending as being:10
… a fairly serious case of street violence … The attack on one of the males was serious with repeated punching and stomping, rendering him unconscious and overnight hospitalisation for observation.
[30] In assessing Losi Filipo’s circumstances, Judge Davidson referred to the
following facts:
(1) Losi Filipo’s age and that he was still at secondary school when the
offending occurred.
(2) The fact Losi Filipo has no previous convictions. (3) Losi Filipo’s remorse.
(4) The offer of reparation.
(5)The willingness of Losi Filipo to attend a restorative justice programme. This offer was apparently declined by the victims.
(6) The fact Losi Filipo had completed around 150 hours’ voluntary
community work with Ignite Sport Trust.
(7) The fact Losi Filipo attended counselling sessions.
[31] Judge Davidson explained that “conventional sentencing of [Losi Filipo]
would demand a starting point of at least 1½ years’ imprisonment”. The Judge
9 New Zealand Police v Filipo, above n 8, at [3] and [13].
proceeded to explain that “conventional sentencing would not see [Losi Filipo] sent to prison but would see him suffer a conviction”.11
[32] Judge Davidson determined there were real and significant consequences for Losi Filipo if he were convicted. “His chosen career [as a professional rugby player] could well be outside his purview if convicted” and the evidence about the potential damage to Losi Filipo’s career prospects as a professional rugby player was “all one way”.12
[33] In undertaking the balancing exercise required of him, Judge Davidson said that he had to ask himself if the courts are “truly in the business of destroying people’s career prospects when there is a safety valve mechanism available … it is only now in 2016 that people are truly beginning to understand the impact of
convictions on people for all sorts of reasons”.13
[34] In summarising his reasons, Judge Davidson said:14
The offending [was] in the relatively serious category, both in itself and for the kind of offending it [was]. But there are significant potential consequences.
[35] For these reasons the Judge chose to offer Losi Filipo a discharge without conviction. He directed Losi Filipo pay the victims a total of $1,000 by way of reparation.
Events following District Court decision
[36] Upon learning the outcome of the District Court proceeding the victims expressed their concerns about the appropriateness of Losi Filipo being discharged without conviction. The media then became interested in Judge Davidson’s decision. This in turn led to significant publicity. Pressure was placed upon the Wellington and New Zealand Rugby Football Unions. Losi Filipo then initiated the termination
of his contract with the WRFU.
11 New Zealand Police v Filipo, above n 8, at [14].
12 At [15].
13 At [16].
[37] Media coverage led the Solicitor-General to call for the file. She received the file several days after the deadline for the police to file any application for leave to appeal. The Solicitor-General promptly reviewed the file and authorised an application for an extension of time to file an application for leave to appeal and an application for leave to appeal on the basis of an error of law in Judge Davidson’s decision. Those applications were filed 13 days after the time for filing an application for leave to appeal had expired.
[38] Superintendent Johnson, the National Manager of the Police Prosecution Service, filed an affidavit in which he explained the victims had notified the police that they believed an appeal should be filed because the “factual basis of the sentencing was inaccurate”. It was thought this did not constitute a basis for an appeal. Superintendent Johnson explained that either through an oversight or miscommunication within the police prosecution service, Losi Filipo’s case was not referred to the Solicitor-General when it should have been.
Grounds of appeal
[39] The grounds of appeal have been distilled to the following three questions:
(1)Did Judge Davidson err in law in applying s 107 of the Act, by failing to properly determine the gravity of the offence by reference to all the aggravating and mitigating features of both the offending and the defendant?
(2)Did Judge Davidson err in his assessment of the weight he gave to the potential consequences of a conviction?
(3)Did Judge Davidson err in concluding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence?
[40] Mr Sainsbury’s submissions explained the opposition to the appeal in the
following way:
(1)Judge Davidson carefully and properly identified and considered the aggravating features of the offending. He had before him an agreed summary of facts which set out the aggravating features of Losi Filipo’s conduct. Judge Davidson properly considered those factors.
(2)The material before Judge Davidson amply demonstrated there were significant direct and indirect consequences for Losi Filipo if he were convicted. The risks identified by Judge Davidson were real and appreciable.
(3)The third ground of appeal advanced by the police did not involve any question of law.
(4)Leave should not be granted to the police to extend the time for them to file their notice of application for leave to appeal.
PART II: LAW
Time limits for filing notice of application for leave to appeal
[41] Any notice of application for leave to appeal on a question of law was required to be filed within 20 days of Judge Davidson’s decision15, which in this case was 12 September 2016.
[42] In R v Knight,16 Richardson P explained the principles governing applications by the Crown when seeking an extension of time in which to apply for leave to appeal criminal cases. The provisions of the Crimes Act which Richardson P was considering have since been replaced by a number of provisions in the Criminal Procedure Act, including s 298(4). That section provides this Court with the discretion to extend the time allowed for filing a notice of application for leave to
appeal.
15 Criminal Procedure Act 2011, s 298(3).
[43] In R v Knight, Richardson P said:17
… the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) [Crimes Act 1961] is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject (R v Hawkins [1997] 1 Cr App R 234 at p 239)”.
[44] This statement of relevant principles was reaffirmed by the Court of Appeal in Solicitor-General v Steinmetz.18 In that case the Court of Appeal refused an application by the Crown to appeal eight days out of time in circumstances where no evidence was presented by the Crown to explain the reasons for the delay.
[45] For the purposes of this case the principles which apply when considering whether it is in the overall interests of justice to grant the police an extension of time to pursue an application for leave to appeal may be distilled to the following points:
(1)What, if any prejudice will Losi Filipo suffer if the Court grants an extension of time for filing an application for leave to appeal?
(2) Whether the proposed appeal has merit.
(3)The reasons for the delay. Have the police put forward a cogent explanation for not filing an application for leave to appeal within time?
(4)The desire for finality in criminal proceedings. The length of the delay may be an important consideration.
[46] In R v Knight, Richardson P referred to the liberty of a defendant as being a relevant consideration when determining if there should be an extension of time
17 R v Knight, above n 16, at 587.
granted to the police to file appeal documents. As Judge Davidson noted however, Losi Filipo has never been at risk of a custodial sentence.
Appeals on questions of law
[47] Section 296 of the Criminal Procedure Act relates to appeals on questions of law. That section provides that a prosecutor may, with the leave of the appellate court, appeal to that court on a question of law against a ruling by the trial court. A decision to discharge a defendant without conviction is a ruling made by a trial court.
[48] For leave to be granted under s 296(2) of the Criminal Procedure Act the prosecution must identify an arguable question of law.19
[49] The Court of Appeal has explained that:20
“Questions of law” in the context of s 296(2) [of the Criminal Procedure Act] must raise one or more of the three standard errors classified by modern authorities as creating a question of law:
(a) a misdirection of law apparent in the decision …;21
(b) oversight of a relevant matter, or consideration of an irrelevant matter;22 or
(c) a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.23
[50] If I am satisfied Judge Davidson made an error of law, I then need to decide whether the appeal should be granted. If I decide the appeal should be granted I should consider the case afresh. Section 300(1) of the Criminal Procedure Act
provides that I may, amongst other steps:
19 Police v Paki [2014] NZHC 3112 at [17].
20 Brown v R [2015] NZCA 325 at [16].
21 Citing Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.
22 Citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25] and Vodafone
New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].
23 Citing Bryson v Three Foot Six Ltd, above n 22 and Vodafone New Zealand Ltd v Telecom New
Zealand Ltd, above n 22.
(1) confirm the ruling appealed from;
(2) remit the matter back to the District Court; or
(3) make any other order that I consider “justice requires”.24
Discharges without conviction
[51] Section 106 of the Act confers a discretion upon a sentencing judge to discharge a defendant without conviction unless the Court is required by an enactment to impose a minimum sentence. A discharge without conviction can only be entered if the defendant is found guilty or pleads guilty. A discharge without conviction is deemed to be an acquittal.
[52] Section 107 of the Act provides guidance for courts considering a discharge without conviction. That section provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[53] The following four-stage process should be followed by a court when deciding whether or not to discharge a defendant without conviction.25 The first three of these steps give effect to s 107 of the Act. The final step involves the exercise of the residual discretion conferred upon sentencing judges by s 106 of the Act:
(1)First, the Court should consider the gravity of the offence. This involves the Court considering all the aggravating and mitigating factors relating to the offending and the defendant.
(2)Second, the Court should then identify the direct and indirect consequences of conviction for the defendant. This involves the
24 Criminal Procedure Act 2011, s 300(1)(e).
25 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and DC (CA47/2013) v R [2013] NZCA 255 at [35].
Court evaluating all relevant information. The Court does not have to be satisfied that the direct or indirect consequences will inevitably or probably occur. It is sufficient if the Court is satisfied that there is a “real and appreciable risk” that the consequences will occur.26
(3)Third, the Court must then consider whether the consequences are out of all proportion to the gravity of the offence.
(4)Fourth, if the Court determines that the consequences of a conviction are out of proportion to the gravity of the offence the Court must still consider whether it should exercise its discretion under s 106 of the Act to grant a discharge without conviction. Rarely, however, will the Court not exercise its discretion to grant a discharge without conviction when the criteria for a discharge in s 107 of the Act are satisfied.
PART III: ANALYSIS Extension of time27
[54] Applying the relevant considerations to the present case, I am satisfied that the interests of justice warrant the police being given an extension of time to file their application for leave to appeal. My reasons for reaching this conclusion are:
(1)Aside from the obvious risk of the appeal being allowed, Losi Filipo has not demonstrated any prejudice by allowing the police an extension of time to file their application for leave to appeal.
(2)As I explain in the balance of this judgment, there is merit to the appeal.
(3)While the reasons for the delay in filing the application for leave to appeal are not particularly satisfactory, the reasons for the delay are
26 DC (CA47/2013) v R, above n 25, at [43].
27 Although the application for an extension of time is the second issue at [1] it is convenient to deal with this first.
explained. There appears to have been an error on the part of people in the police prosecution section who should have sought the permission of the Solicitor-General to file within time an application for leave to appeal.
(5)When the Solicitor-General received the file she acted promptly and an appeal was filed the following day.
(4)The desire for finality in criminal proceedings is an important consideration. There appears to have been a delay of approximately
10 months between the date Losi Filipo was charged and when he was discharged without conviction. In the overall context of this case, the
13 day delay by the police prosecution service is comparatively insignificant.
First ground of appeal
[55] The essence of the first ground of appeal advanced by Ms Carter for the police alleges Judge Davidson failed to properly determine the gravity of Losi Filipo’s offending.
[56] There are four aspects of Judge Davidson’s assessment concerning the
gravity of the offending that I have focused upon.
[57] First, although Judge Davidson said that the attacks were “seemingly … unprovoked”28 he did appear to harbour a degree of uncertainty about the genesis of the assault.29 The source of Judge Davidson’s uncertainty appears to have been the statements in Losi Filipo’s affidavit, the relevant portions of which I have set out in [19]. In particular, Losi Filipo portrayed his role as being one of assisting his brother
after the fighting had started and that he was hit before he delivered any blows. Losi Filipo’s explanation about the genesis of the assault conflicted with the agreed
summary of facts.
28 New Zealand Police v Filipo, above n 8, at [13].
29 At [3].
[58] Under s 61(3) of the Criminal Procedure Act, Judge Davidson was obliged to base his sentence indication on the agreed summary of facts and the victim impact statements.
[59] If Losi Filipo wished to dispute that he instigated the attack, then he should have asked for an indication as to the weight Judge Davidson placed on that issue if Losi Filipo were to be sentenced. If the disputed facts would have had a material effect on the sentence, Losi Filipo could have asked for a disputed facts hearing under s 24 of the Act, even though this may have caused distress to the victims and possibly undermined the weight the District Court could give to Losi Filipo’s acceptance of his guilt. Alternatively, if Judge Davidson was in any doubt about who instigated the attack, and if he considered that issue was important then he could have declined to give a sentence indication until that factual issue was resolved.
[60] Second, while Judge Davidson recorded that Losi Filipo stomped on Gregory Morgan on about four occasions, the Judge did not refer to the fact that the stomps were to Gregory Morgan’s head. 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. Judge Davidson appears to have understated the seriousness of Losi Filipo’s conduct by not specifically referring to the fact he stomped on Gregory Morgan’s head on about four occasions.
[61] Third, the assaults against Olivia Samuel and Kelsey Odell were described by Judge Davidson as being “not particularly serious in themselves” and “more in the nature of pushing and shoving”.30 That description only partially reflects the agreed summary of facts. In particular, the agreed summary of facts portrays the assault on Kelsey Odell as being more serious than Judge Davidson described. The agreed summary of facts states:
[Losi Filipo], without warning shoved [Olivia Samuel] who is a female in the throat causing her to lose balance and fall to the ground.
As a result of the assault [Olivia Samuel] received a red mark to her chest.
30 New Zealand Police v Filipo, above n 8, at [4].
[Losi Filipo] lashed out at [Kelsey Odell] who is a female.
He made contact with the victim’s chin and she fell to the ground.
As a result of the assault [Kelsey Odell] received a cut to her chin.
In her victim impact statement Kelsey Odell described having been punched by
Losi Filipo.
[62] As previously mentioned, the victim impact report records Kelsey Odell suffered a “deep cut inside [her] mouth” and a “swollen jaw”. She now also has a scar on her chin. Victim impact statements were a source of information that Judge Davidson was required to consider.31
[63] Fourth, Ms Carter took issue with the indicative starting point of one and a half years’ imprisonment, which Judge Davidson referred to in his decision. Ms Carter submitted that Losi Filipo’s offending required a starting point of three to three and a half years’ imprisonment.
[64] Ms Carter’s analysis was made by deriving comparisons with the judgment of the Court of Appeal in Nuku v R32 in which the Court of Appeal described three bands of offending for offences involving intent to injure. Mr Sainsbury correctly points out, however, that the charge involving Gregory Morgan was one of injuring with reckless disregard. It did not involve an actual intent to wound or injure.33
Nuku v R is therefore not of direct assistance in relation to the lead offence in this case.
[65] In my assessment, there were three aggravating features to Losi Filipo’s
offending, namely:
(1)First, his attacks to Gregory Morgan’s head. In R v Taueki the Court of Appeal said:34
31 Sentencing Act 2002, s 61(3)(c) and Edwards v R [2015] NZCA 583 at [12].
32 Nuku v R [2012] NZCA 584.
33 Waitohi v R [2014] NZCA 614 at [15].
34 R v Taueki [2005] 3 NZLR 372 (CA) at [31](e).
Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.
(2)Second, the vulnerability of Gregory Morgan when Losi Filipo stomped on his head. At that stage Gregory Morgan was unconscious and particularly vulnerable.35
(3)Third, Losi Filipo’s actions have had serious consequences, particularly for Gregory Morgan, Hayden Williams and Kelsey Odell. Those consequences have meant that all three have had their employment curtailed to varying degrees as a result of Losi Filipo’s conduct.
[66] In my assessment, Losi Filipo’s offending against Gregory Morgan would warrant a starting point of a minimum period of 18 months’ imprisonment.36
Assessing Losi Filipo’s overall culpability also requires some consideration to be given to his offending against the other three victims. The assaults on Kelsey Odell, Olivia Samuel and Hayden Williams were in themselves serious and justified an uplift of at least six months’ imprisonment. The minimum starting point in this case would normally have been two years’ imprisonment. A starting point of two and a half years’ imprisonment would be unimpeachable.
[67] I am satisfied Judge Davidson erred when he overlooked relevant matters
relating to the gravity of Losi Filipo’s offending. Those matters were:
(1) Losi Filipo’s role as an instigator of the offending.
(2)The fact that Gregory Morgan was stomped on his head about four times when he was unconscious and therefore vulnerable.
(3) The seriousness of the consequences for the victims.
35 Sentencing Act 2002, s 9(1)(g); R v Taueki, above n 34, at [31](i).
36 Waitohi v R, above n 33; L (CA708/2013) v R [2014] NZCA 41; Harris v R [2013] NZCA 218, AL v Police HC Invercargill CRI-2011-425-44, 29 November 2011 and R v Osuji HC Auckland CRI-2010-404-353, 15 September 2011.
These errors constituted an error of law as that concept was explained by the Supreme Court in Bryson v Three Foot Six Ltd and Vodafone New Zealand Ltd v Telecom New Zealand Ltd.37
Second ground of appeal
[68] The second ground of appeal alleges Judge Davidson overstated the adverse consequences of a conviction for Losi Filipo.
[69] The evidence before Judge Davidson was that Losi Filipo had a contract with the WRFU, that he was very talented player with the potential to have a successful career in rugby “if he remained committed and associated with the right people”. The evidence was that it is impossible to predict if a young player will evolve into a professional rugby player. There are far too many factors that impact upon a player’s career for there to be any degree of surety about any young player’s prospects of advancing as a professional rugby player. The factors which may impact upon the prospects of a player’s career include injuries, the player’s attitude, their playing environment and competition for places. For every player who reaches the upper echelons of New Zealand rugby there are countless young men who do not achieve their goals.
[70] The evidence in the District Court also made it clear that a conviction would not prevent Losi Filipo from obtaining a professional rugby contract in New Zealand. The evidence was that a conviction would make obtaining a professional rugby contract “much harder”, but that is not the same as a “real and appreciable risk” that Losi Filipo would not get a professional rugby contract in New Zealand if he was convicted. The possibility of pursuing a professional rugby career was not ruled out, or “outside his purview” if Losi Filipo was convicted.
[71] Mr Alcock’s evidence makes it clear that it was highly unlikely that Losi Filipo would get a professional rugby contract in Japan if he were convicted. Japan is one of several countries where New Zealand professional rugby players
pursue their careers. Mr Alcock did not suggest that a conviction would necessarily
37 Refer to [49].
impact on the chances of Losi Filipo playing professional rugby in France, the
United Kingdom, South Africa or Australia.
[72] Disappointingly for Losi Filipo his contract with the WRFU was terminated following the publicity about Judge Davidson’s decision. That contract was brought to an end at Losi Filipo’s instigation. This consequence was not able to be anticipated by Judge Davidson. The events following the District Court decision underscore however the point that Losi Filipo’s conduct on 11 October 2015 should be the focus of rugby administrators and anyone else who may in the future consider employing him. It is the conduct of Losi Filipo and not simply whether or not he is convicted that is the key consideration for rugby administrators and future employers.
[73] Ms Carter is, in my assessment, correct when she says there was not sufficient evidence before Judge Davidson to enable him to conclude that a conviction would be a real and significant barrier to Losi Filipo fulfilling his ambition to become a professional rugby player.
[74] Judge Davidson therefore erred by taking into account an irrelevant factor, namely his concern there was a real and appreciable risk Losi Filipo would be unable to pursue his ambition to become a professional rugby player if he were convicted. This error was therefore also an error of law.
Third ground of appeal
[75] Having decided that Judge Davidson erred in law in the two ways I have already identified, it probably follows that Judge Davidson erred when he held that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence. It is however not necessary for me to address the third ground of appeal.
The appeal is allowed
[76] In assessing the significance of the errors of law I have explained in [55] to [75] I have reviewed the evidence and submissions and reached the following conclusions.
Gravity of offending
[77] First, Losi Filipo’s conduct was very serious. The injuries he inflicted to Gregory Morgan when he stomped upon his head about four times were particularly grave. At the time Gregory Morgan was unconscious and therefore vulnerable. The injuries inflicted upon Kelsey Odell and Hayden Williams were also serious. The victims have suffered serious consequences as a result of having been attacked by Losi Filipo and his brother on 11 October 2015.
Circumstances of Losi Filipo
[78] Second, Losi Filipo was a young man and still at secondary school at the time of his offending. The youthfulness of an offender is an important factor when considering an application for a discharge without conviction. This is because:38
There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
In addition, young people have a greater capacity for rehabilitation.
[79] Losi Filipo was also entitled to credit for the fact he had no previous convictions, had engaged in community work, had attended counselling to understand the causes and consequences of his offending and offered what for him was a significant sum by way of reparation. It is also significant that Losi Filipo demonstrated some remorse and was willing to participate in restorative justice.
[80] When these factors are weighed in the balance it is easy to understand why
Judge Davidson took the compassionate approach that he did. As I have stressed
38 Churchward v R [2011] NZCA 531 at [77].
however, Judge Davidson erred by not taking into account relevant matters. As a
result he under assessed the gravity of Losi Filipo’s offending.
Consequences
[81] Third, the evidence before Judge Davidson was that a conviction would make it more difficult for Losi Filipo to pursue his goal of becoming a professional rugby player. A conviction would mean he was very unlikely to get a contract to play rugby in Japan, but the evidence fell short of demonstrating that there was a real and appreciable risk that Losi Filipo would not be able to play professional rugby, except in Japan.
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.
Solicitors:
Crown Solicitor, Wellington for Appellant
Greig Gallagher & Co, Wellington for Respondent
D B Collins J
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