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  Reply # 1642998 29-Sep-2016 22:32
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mattwnz:

 

Mspec:

 

This was extreme violence and I believe it required a conviction to reflect that, jail no but certainly home detention and or community service and reparation.

 

 

 

 

Wouldn't that sort of conviction prevent him working overseas, which is what most top rugby players end up doing eventually. 

 

This was discussed on Radio NZ today, and one panelist said this sort of thing happens all the time with well off families, who want to protect their children, where people will ask for name suppression, and will ask for discharge without conviction to protect their future employment opportunities, and most would get it. It is just never reported. I was somewhat surprised to hear that. Is that true? They also said they think there is a race element to the story, and more to it than is being reported. 

 

 

No. he would require a visa, as a waiver to Oz or the US are for those with no convictions. If he got jail time at 12 months or more, that is an issue, but he wouldn't get that.

 

Even if he did get 12 months and breach that threshold, he was 17, first offence, he's just here for sport than beck home, no real issue. The travel thing is a hoax.  


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  Reply # 1642999 29-Sep-2016 22:34
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Fred99:

 

Note that the appeal will be about a point of law - probably about whether the judge was acting correctly and within the law when he made the decision to discharge without conviction, or possibly something else about the trial itself.  The appeal isn't going to be about the "fairness" of the decision to discharge. If it's found that he was acting correctly within the law, then his decision stands. I don't expect to see what many people are hoping for - overturning the decision to discharge without conviction and dealing with this person - who IMO acted like a thug - in a more appropriate manner (which doesn't necessarily mean jail).

 

The law needs changing, also name suppression laws which have the appearance of being abused by the rich and/or powerful to protect themselves (and their families), evidence that this may be the case excluded from the media by the fact that they'd be breaking the law to present it to you, and I'd be breaking the law if I said much more than I've already said.

 

 

We are all equal, but some are more equal than others. George Orwell.


 
 
 
 


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  Reply # 1643003 29-Sep-2016 22:44
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Dratsab:

 

Sentencing indication here. Filipo entered the suggested guilty plea and received the indicated DWOC.

 

 

Thats the thing. Do a crime, do the time. Do a crime and your guilty. Or do a crime, plead guilty to get off it? Plead guilty, and offer to do 150 community work as suggested by your lawyer to get off it? 

 

I might rob a bank, I just need to know that for every 10k I steal, what do I need to do if I get caught? Plead guilty, use my ill gotten gains to give to a charity, offer to sweep gutters for a few days? Ok, a slight exaggeration, but really.

 

I could also ask for name suppression as I must be related to someone well known. 

 

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  Reply # 1643004 29-Sep-2016 22:46
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Rikkitic:

 

Fred99:

 

Also nuts is the fact that we can't mention the case of xxxx who did xxxx and was the xxx of the well known xxxxx, because all details of the case have been suppressed. Now that's a very difficult situation and one which should be very carefully considered before ever granting such a suppression order, as I suppose hypothetically, there could be people out of jurisdiction of NZ law, presenting information which could be found, though it would be illegal for anybody in NZ to look for it, read it if they accidentally stumbled across it, or talk about it or to direct anybody to any such place where that information may be available Then hypothetically, if someone was to find that information, they might not consider that the person(s) making that information available may have some kind of axe to grind, so as well as making suppressed information available, they might add all kinds of other theories and allegations which can't be challenged and might suggest that NZ judicial system is thoroughly rotten to the core.  I don't believe we've got that one right either - in that case possibly because of judges being a little naive, but there's always that shadow of doubt that perhaps there is is deep seated corruption - indeed an "old boys club" in a banana republic.

 

 

I'm not sure this is correct. I'm not sure it isn't, but I think the principle of open justice means anyone in this country can attend any trial. All a suppression order means is that those present in the courtroom, especially media, are prohibited from 'publishing' the suppressed details, but no-one is prohibited from knowing them. There is also no prohibition on communicating them individually from person to person, or reading about them on an overseas website. I may well be wrong, but that is my understanding.

 

 

 

 

That correct, so many know the truth, many yak about it, but it can't be said by reporters. Its like a Claytons Crime.


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  Reply # 1643012 29-Sep-2016 23:24
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IMO (and coming from the somewhat unusual perspective of having lawyered for the judiciary, worked in defence and prosecuted), the judge got this badly wrong. What the Sentencing Act requires in deciding whether to grant a discharge without conviction is a three stage process:

 

1. Establishing the culpability of the offender, in terms of the seriousness of the offending -- for this exercise, the judge is entitled to look at the acts concerned and any subsequent efforts by the offender to mitigate his or her offending;

 

2. The likely consequences of a conviction. The consequences need not be inevitable and the offender does not bear any onus of proof to show that any consequence alleged will happen; and

 

3. A weighing exercise to see whether the consequences of a conviction is completely out of proportion with the gravity of the offending, with the understanding that a discharge without conviction is an unusual outcome.

 

My view is that the judge's weighing of points (1) and (2) are okay enough to having some chance of withstanding appellate scrutiny. But I cannot see his analysis at (3) surviving any close look by any High Court judge. The District Court judge's diatribe at [16] of the decision simply cannot pass for any kind of a serious analysis under limb (3) of the test. This thug stomped on the head of somebody who was already on the ground and defenceless -- that offending alone is extremely serious. Even if it is accepted that it is likely that any conviction(s) will serve as a significant bar to his future travelling (and overseas rugby playing prospects), it certainly cannot be said (IMO) that the outcome is entirely disproportionate to the gravity of his offending. Yet although the judge referenced the male victim's head injuries, little about it featured in any kind of serious analysis. And it is at least arguable that in declaring convictions as being likely to destroy this thug's career prospects, the judge went too far as well. This was some damn poor judicial reasoning, regardless of whether one agrees with the ultimate decision or not. The errors of law are pretty obvious IMO.

 

OTOH, I cannot help but be appalled at some of the uninformed commentary about discharges without conviction generally and this notion that "a plumber would have been convicted and therefore there is a two-tier judicial system". Wrong. Differing treatment for different people does not per se prove that there is a two-tier system. That's because implicit in this idea is that the different treatment is morally unjustifiable. This is not always the case. A guy who does X to somebody but stands to lose (say) a future career of great prospects has a lot more to lose than a guy who (extreme example and argument ad absurdum used to illustrate the point) realistically might never earn much more than minimum wage. As such, the impact of a conviction is far higher for the first guy than the second. I also have no time of the day for some defence lawyers' suggestion that because NZ has chosen the internationally embarrassing course of trying 17 year olds as adults that this was the only realistic outcome. The relevant legislation provides for those otherwise subject to Youth Court jurisdiction to be sent to be sentenced at the District Court as adults if their offending is sufficiently serious. I would have thought that even if this guy had been subject to YC jurisdiction, there would have been arguments in favour of moving this to the District Court.

 

All up, a poor day for the judicial system and the legal profession.

 

 

 

 


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  Reply # 1643014 29-Sep-2016 23:38
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Thanks for chiming in, I was considering an @ call but knew it would only be a matter of time...


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  Reply # 1643073 30-Sep-2016 07:34
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A couple of thoughts.....

 

Even at 17 this man was in a very public position, playing a game at a level that many of our youth aspire to. As such a higher level of responsibility is required - he is after all a roll model.

 

This and the Nikolas Delegat case are two examples, that have been in the news media recently, where the sentencing has caused some ire with the public.

 

To my mind, where there is privilege or a public profile, the bar on acceptable behavior needs to be set higher. The penalties need to also be harsher then the norm for transgressions.

 

These people are an example to the public. Our expectations of them are higher. This should not mean that they get away with things.

 

What is the opinion of their victims - it seems that the courts have marginalised them, perhaps making them a victim of the crimes twice over. I have problems with this.

 

What is justice - should the perpetrator of a crime suffer similar or greater harm than the victims of their crimes? (an eye for an eye, life for a life argument)

 

I don't think their has been any justice in either of these cases - especially from the public point of view. I cant comment on what the victims would say, but can certainly imagine it.

 

 

 

 


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  Reply # 1643108 30-Sep-2016 08:48
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Prison time seems appropriate - but not much, minimum security. Enough to hopefully scare him straight. You can't assault four people that seriously with no repercussions, and if it means he can't play rugby, so be it.





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  Reply # 1643118 30-Sep-2016 09:09
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timmmay:

 

Prison time seems appropriate - but not much, minimum security. Enough to hopefully scare him straight. You can't assault four people that seriously with no repercussions, and if it means he can't play rugby, so be it.

 

 

3 months, which is probably 6 weeks for good behaviour, wont affect his ability to travel.

 

As long as he gets what anyone else would get, and if he is in a position of double punishment (affecting career) then the punishment is altered. ALTERED, not DROPPED

 

And I cannot see the reason that his sentence affects his career, thats a cop out. Assumming if he got jailed it will be less than 12 months how can that affect his rugby career??  He can travel, the only inconvenience being he needs to apply for a Visa, is that too hard and too onerous???? 


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  Reply # 1643125 30-Sep-2016 09:26
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dejadeadnz:

 

A guy who does X to somebody but stands to lose (say) a future career of great prospects has a lot more to lose than a guy who (extreme example and argument ad absurdum used to illustrate the point) realistically might never earn much more than minimum wage. As such, the impact of a conviction is far higher for the first guy than the second.

 

 

I can't agree with that argument.

 

The guy who has more to lose (and also clearly has more to gain as a member and beneficiary of a cohesive law-abiding society) and is held in high regard by society in general as some kind of a "leader", surely has a greater moral responsibility to behave him/herself.  IOW if they betray society, they've committed a worse moral crime than the "serial loser" you portray above.

 

If you start letting people off or giving them easy sentences because they're already rich or have "great potential" then at the extreme you end up with a system totally rotten to the core with corruption, no respect by anybody for the laws, police - everybody "on the take" - morally justified by the observation that "everybody does it".  This is "normal life" for billions of people in the world. 


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  Reply # 1643131 30-Sep-2016 09:44
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Fred99:

 

dejadeadnz:

 

A guy who does X to somebody but stands to lose (say) a future career of great prospects has a lot more to lose than a guy who (extreme example and argument ad absurdum used to illustrate the point) realistically might never earn much more than minimum wage. As such, the impact of a conviction is far higher for the first guy than the second.

 

 

I can't agree with that argument.

 

The guy who has more to lose (and also clearly has more to gain as a member and beneficiary of a cohesive law-abiding society) and is held in high regard by society in general as some kind of a "leader", surely has a greater moral responsibility to behave him/herself.  IOW if they betray society, they've committed a worse moral crime than the "serial loser" you portray above.

 

If you start letting people off or giving them easy sentences because they're already rich or have "great potential" then at the extreme you end up with a system totally rotten to the core with corruption, no respect by anybody for the laws, police - everybody "on the take" - morally justified by the observation that "everybody does it".  This is "normal life" for billions of people in the world. 

 

 

But arent you saying that you agree with varying punishments for different people?  In that if he got the same sentence as you or I would have, that his is a larger punishment. Its not right he got off, its also not right that he gets a higher punishment than anyone else

 

This stuff about a role model, etc etc is a crock. Richie is a role model. Sophie Pascoe might be a role model. If your a pro sports player you are not an automatic role model.

 

IMHO he should get a penalty that if it STOPPED him from being able to travel, it gets modified, but its also at the same level of penalty and hardship. 

 

However, I dont know what the sentence would have been but it would not have stopped him from travelling, so there was in fact no need to change his sentence

 

 

 

 


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  Reply # 1643135 30-Sep-2016 09:53
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KGM:

 

A couple of thoughts.....

 

Even at 17 this man was in a very public position, playing a game at a level that many of our youth aspire to. As such a higher level of responsibility is required - he is after all a roll model.

 

This and the Nikolas Delegat case are two examples, that have been in the news media recently, where the sentencing has caused some ire with the public.

 

To my mind, where there is privilege or a public profile, the bar on acceptable behavior needs to be set higher. The penalties need to also be harsher then the norm for transgressions.

 

These people are an example to the public. Our expectations of them are higher. This should not mean that they get away with things.

 

 

My understanding is that at the time of the crime, this young person (not man) was *not* in a very public position. That didn't happen until later. Changing the rules because of what he became *after* the crime isn't just.

 

Even if he was in a position of privilege or public profile, the same law should be applied. The bar shouldn't be set higher (or lower), and the penalties shouldn't be harsher (or softer)... they should be the same. The penalty should fit the crime, not the criminal. And our higher expectations should be irrelevant to the court of law... they can be expressed in the court of public opinion.

 

 


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  Reply # 1643149 30-Sep-2016 10:02
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An important point that I don't think has been raised here yet is again something discussed on the Panel yesterday: that the Police did not oppose the request for a discharge without conviction.

 

I took it that this could be part of the "something more behind the story", ie whether there were discussions between Police and Wellington Rugby that led them to not opposing the request.

 

The interviewee indicated this could make it harder in terms of the appeal of the sentence (why should the Police have a problem now if they didn't then?). Indeed, the way things have played out indicates to me that if there hadn't been the public outcry the sentence would not have been appealed; indeed, basically all actions since have been a result of this outcry.

 

The interview from the Panel (with lawyer /ex cop Tony Bouchier) is here: http://www.radionz.co.nz/national/programmes/thepanel/audio/201818042/losi-filipo


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  Reply # 1643154 30-Sep-2016 10:07
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jonathan18:

 

An important point that I don't think has been raised here yet is again something discussed on the Panel yesterday: that the Police did not oppose the request for a discharge without conviction.

 

I took it that this could be part of the "something more behind the story", ie whether there were discussions between Police and Wellington Rugby that led them to not opposing the request.

 

The interviewee indicated this could make it harder in terms of the appeal of the sentence (why should the Police have a problem now if they didn't then?). Indeed, the way things have played out indicates to me that if there hadn't been the public outcry the sentence would not have been appealed; indeed, basically all actions since have been a result of this outcry.

 

The interview from the Panel (with lawyer /ex cop Tony Bouchier) is here: http://www.radionz.co.nz/national/programmes/thepanel/audio/201818042/losi-filipo

 

 

If that was the case, corruption and discrimination.


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  Reply # 1643156 30-Sep-2016 10:09
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frankv:

 

Firstly, I recall wild-child Marc Ellis years ago advised students to apply for discharge without conviction because it had always been good for him, or words to that effect. So it's not just rugby players that benefit... anyone youthful with good prospects could potentially get out of jail free. I don't know enough about what actually happened to second-guess the judge on granting this. Presumably the Solicitor-General review will answer that.

 

Secondly, if Filipo is the thug he has been portrayed, it's up to the courts, not the WRU, to punish him. I doubt that my employer would fire me if I'm convicted of assaulting someone.

 

Thirdly, I'm not happy with the whole idea of hiring people to be role models. I have no particular problem with paying people to play sport, but including the requirement of (the appearance of) 24-hour sainthood is unreasonable. What business is it of the NZRU or WRU what one of their employees does in their own time, so long as it doesn't detract from their on-field performance? 

 

Fourthly, I gather that the offense happened *before* Filipo got his rugby contract. That makes firing him even more tenuous, IMHO. Unless his contract required him to expose all pending prosecutions, and he didn't. But extending the sainthood requirement to the time before the contract was signed is crazy.

 

Fifthly, there's no reason for the NZRU or the WRU to apologise to anyone. That's ridiculous. They've done nothing wrong. If I should ever be convicted of anything, I'm damn sure my employer won't be apologising.

 

Sixthly, I suspect that Filipo "voluntarily" withdrew from his contract in the face of an offer he couldn't refuse, possibly including some kind of payout by the WRU. It stinks that the WRU would stoop to this rather than facing the PR issue.

 

 

 

 

What a great post. I wish I could upvote it more. 

 

Why the NZRU are apologizing is beyond me. More PC crap. 

 

Filipo resigned I believe based on HIS suggestion, though it would have been strongly supported. 

 

I think he knows he did the wrong thing, and while I believe his sentence is too light, at the end of the day, the review will handle this. 

 

Asking an employer to apologise for the actions of an employee's after hours behaviour is absolute non-sense though I believe they should have known the facts more fully before supporting him publically.


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