New Zealand Police v Filipo

• Jurisdiction: New Zealand
• Judge: Collins J
• Judgment Date: 27 October 2016
• Neutral Citation: [2016] NZHC 2573
• Docket Number: CRI-2016-485-000080
• Court: High Court
• Date: 27 October 2016

BETWEEN

New Zealand Police

Appellant

and

Losi Filipo

Respondent

[2016] NZHC 2573

CRI-2016-485-000080

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application for an extension of time to appeal and appeal against a District Court (“DC”) decision which discharged the respondent without conviction under s106 Sentencing Act 2002 (“SA”) (discharge without conviction) on charges of injuring with reckless disregard; assault with intent to injure and male assaults female — the respondent was aged 17 at the time and was a promising rugby player — whether the DC erred in law in applying s107 SA (guidance for discharge without conviction) 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 — whether the DC judge erred in his assessment of the weight he gave to the potential consequences of a conviction — whether the DC judge erred in concluding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

Counsel:

S Carter for Appellant

N J Sainsbury for Respondent

• 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.

JUDGMENT OF Collins J

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:

  • 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.

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

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...