Sex, Drugs & Electoral Rolls Part XXIII: Post-scripts, Postludiums, and Electoral Post-Mortems

This has not been a particularly easy column to write. Not due to any lack of subject-matter or intellectual wherewithal, mind - there's tonnes going on in the politisphere at present; and despite the fact that I'm nearing the end of a ten-day fast, my brain still yearns to trammel through all of it here with you.

Except that's the problem. We've got far too much to discuss for it to all fit inside a single thousand-word page (even allowing for my ongoing habit of stretching out the word-limit on my pieces as far as I possibly can every week, much to the irritation of my editors). And the fact that it's a *single* thousand-word page (as in, the final installment of Sex, Drugs & Electoral Rolls for the year) is seriously weighing upon my mind.

I've come to thoroughly enjoy penning a column every week. It's quite a change from the usual staccato pace of sub-twelve-hour turnaround times for my more usual journalistic endeavors, and there's definitely something to be said for the comparative freedom of a more long-form format in which to better explore a few thoughts.

But enough introspective navel-gazing (a practice which, with an additional 'a', can often leave one all at sea).

One of the themes I've tried to both explicate and illustrate through the twenty-two previous episodes of this piece is that getting involved in politics - whether because you passionately believe in something you wish to push, or even simply because you're a part-passive proponent of what I call 'voting in self defence' - is something that everybody can do. And that even if you're not an uber-hack, you can still make a substantial degree of difference via that decision to stand up, be counted, and make your voice heard.

The best example of this from the last two weeks is probably the Hamilton mayoralty - wherein a mere 14 votes separate the top two competitors. (On a related note, I'm also told that if New Zealand First had had somewhere about the same number of additional Party Votes in 2014, we'd have gotten an extra MP - and the National-led Government would have been denied its majority, thus forcing a change in administration. On such small things do the fate of worlds turn)

But even here in Auckland - a city of more than a million people - there's tacit and tangible evidence that even up against such electoral behemoths as Phil Goff and the combined might of the local (arm of the) National Party, 'the little guy' can certainly make a difference.

By now, just about everybody's familiar with the rise to some form of prominence of Chloe Swarbrick (who successfully parlayed a position of limited resources and effective mainstream-media shutout into a noteworthily strong 'third' placing in this year's Mayoralty contest - beating even a known and moneyed previously somewhat successful candidate like John Palino). This certainly gives allegorical force to the idea of even seemingly unlikely folk from outside the 'established' political machinery being able to Influence Things (tm).

But from where I'm sitting, the true story of 'ordinary people' having a tangible effect upon the surface-firmament of the politisphere is the somewhat less commented upon one (largely because it doesn't necessarily have easily identifiable/sympathizable protagonists) which played out in dozens of local body races located in and around the isthmus.

Here, as previously presented, there was not one - but at least three - Vast Right Wing Conspiracies to attempt to take over (or, if you prefer, 'take back') Auckland. And you know what? They were largely stopped. The four year plan to install Bill Ralston as Mayor now lies in (admittedly somewhat restitchable) tatters. The now somewhat oxymoronically named 'Auckland Future' ticket succeeded in securing only a single Council seat - and even that came about through defection of a previous C&R councilor. At least nominally left-wing (or 'center-left', although I maintain that this is not the same thing - in a manner arguably similar to the subtle yet important linguistic distinction between "jacket" and "straight-jacket") councilors and local board members have made impressive (albeit somewhat incremental) gains across Auckland.

And all of this happened, in no small part, because tens of thousands of Aucklanders decided to do the deceptively simple thing of ticking a few boxes on a bit of paper (hopefully after taking a modicum of trouble to bother to inform themselves at least a little bit first), before marching up to their local post-box or library and chucking it in the slot.

It's not exactly 'the stuff of which revolutions are made' - but it has a tangible, positive impact on the world around you. And in some ways, that's sort-of the same thing.

So the next time somebody attempts to pooh-pooh taking an active interest in politics to you - perhaps by insinuating that a few people pushing their personal beliefs is likely to have an all-up null effect upon the course of political affairs ... remember that that's pretty much the main thing that's EVER had an impact upon politics in the first place.

And sure - these transitions can take time. Especially in FPP electoral contexts, wherein the immediate-ultimate outcome can occasionally feel more like a coin-toss between two almost-equally indifference- or militant-apathy inspiring candidates.

But that's the thing about coin-tosses.

Flip them often enough, and with enough force, and you'll be surprised at how many times they land on their sides.

Or how many coins, taken together, are swiftly exchangable for actual-and-desirable paper-money.

I guess that's why so many of us persist with our politics. Some, like me, are struck down by an almost compulsive avarice. The only way we'll stop pursuing the coins of politics is when two of them are laid upon our eyes to pay the ferryman in grave imitation of Greek funerary rights. But others are waiting for their promised paydays. And those do, eventually, tend to come around provided you work long and hard enough for them.

In any case, when I first set finger to keyboard way back in February to pen the first installment of Sex, Drugs & Electoral Rolls, I outlined a number of objectives which I wished to achieve with my writing. Obviously, I wanted to entertain; but I also wanted to inform, inspire the occasional bout of critical thinking, guide, educate, elucidate, and perhaps even ensnare the interests of the passing reader in putting themselves forward for more ardently political pursuits (that is to say: making the whole thing seem fun).

From a cursory inspection of the steady stream of feedback I've received for these pieces over the previous almost eight months, I'd have to say that for a certain demographic of you out there in the literary/social media wilderness ... it would seem I've somewhat succeeded.

For that, and the treasure of having an appreciative audience as I've prognosticated & propounded both week-in and week-out for the last two semesters, I should like to say thank-you.

I'll leave you now with a poem I found on the morning of one of my court appearances. May it positively guide and inspire your actions in politics as much as it has done mine in life.

"Somewhere in the universe a coin flip lands on its side.
Somewhere in the universe a drop of water saves a life.
Somewhere in the universe a pebble stops a landslide.

Maybe it is because someone believed hard enough.
Maybe it is because everything is secretly fair.
Maybe it is because the universe is a vast place.

Yesterday, I was very cold.
Yesterday, I was very hungry.
Yesterday, I wanted to run away.

Today, I am going to believe hard enough.
Today, a pebble will stop a land slide.
Today, I am not going anywhere."

And remember: "When the going gets weird ... the weird turn pro."

Sex, Drugs & Electoral Rolls Part XXII: A Rush To (Mob)-Justice & The Other Kind Of Privilege

Conversations around me for the last week have been dominated by discussion of the Losi Filipo verdict. Pretty much everyone's seemed to have an opinion about it - and, perhaps quite worryingly, almost all of them (with some notable exceptions) have been almost completely at-odds with the final decision as handed down by the judge.

Why's this a "perhaps quite worryingly"? Shouldn't the weight of public outcry in the court of public opinion ultimately triumph and prevail over the learned legal mind and reasoning of an esteemed member of the judiciary?

Well, I find this disquieting for two reasons. First up, as police have now received permission to re-prosecute Filipo in pursuit of a different sentence ... this indicates that there is a perhaps dangerous degree of responsiveness to a storming not-quite-lynch-mob mentality on the part of our state legal system. Justice is supposed to be above and beyond such ... temporal considerations.

But the second reason is the possibility that maybe, just maybe, the judge DID get it wrong, and we're effectively having to rely upon the backstop of notoriously volatile public opinion rather than the actual judicial system to act in a corrective capacity. (I say "notoriously volatile public opinion" - consider how quickly minds were shaped and then swayed about the David Bain case before and after the most recent trial)

I'm genuinely unsure as to which is scarier - that the fate of the accused must apparently dangle in the wind subject to the swirling morass of moral opinions of the mob ... or that this popular outcry might, in point of fact, be the only thing which has managed to prevent a comprehensive potential miscarriage of justice.

I say "potential miscarriage of justice". Some will be aghast at this and insist that there's nothing "potential" about it - noting, perhaps quite rightly - that a man facing assault charges against four other individuals, two of them female, ought to be looking at a significant sentence. Perhaps even, as law-and-order conservatives are wont to mention ... "serious time".

There is a perception, rightly or wrongly, that Filipo has gotten off incredibly easy here. That just because the ordinary starting point for this sort of offending in terms of sentence would be somewhere in the area of one and a half years imprisonment, that that, therefore, "ought" to be what he was lumped with.

Instead, he's received a Discharge Without Conviction (which, in the eyes of some, effective amounts to no sentence at all - notwithstanding the 150 hours of community work Filipo's done and one thousand dollars worth of proffered reparations which he offered his victims; or the ongoing personal effects from having his name bandied about in the media as a rhetorical football - something which I have a certain degree of experience with. In those situations, you still bear the 'Mark of Cain' til the last link comes off google, and peoples' memories completely fade ... i.e. "Never").

So is this genuinely a case of "Rugby Player Privilege", as many voices have been breathlessly claiming? Did Filipo effectively manage to break the judicial system around him in a truly exceptional way here by avoiding either imprisonment - or, for that matter, any form of lasting consequence whatsoever in the form of a lingering (symbolic) conviction?

This view is rather unlikely.

For starters, there's the inarguable fact that a court is almost never going to sentence a youthful first-time offender charged with a lower-end offence to jail. It just simply doesn't happen (strongly extenuating circumstances notwithstanding). So straightaway, we're working with a far lower starting-point than the "one and a half years imprisonment" proffered so suggestively throughout mainstream media reporting (and subsequent public outrage) on this case. We long ago recognized that young people are not only less culpable than their older peers (impulse-restricting frontal lobes not being fully formed etc.) - but, more importantly, that they have a far greater chance of turning their lives around and doing something different if we give them a second chance.

An opportunity for redemption which, needless to say, would go flying out the window if we were to subject them to the ongoing brutalizing experience that is a substantial stay behind bars in prison.

From there, it's a simple matter of running down the Sentencing Act 2002, and seeing how it affects what Filipo got. I quite like the Sentencing Act, as it happens. It's a wonderfully flexible piece of legislation in some respects - and it allows a positively bewildering array of 'aggravating' and 'mitigating' factors to be brought into play by both prosecution and defence as they seek to influence the judge's decision as to what desserts a given offender receives.

Included among these in the 'mitigating factors' listed in s9(2) are things like age, evidence of previous good character, expressions of remorse, a willingness to make restitutions to those wronged by one's offending, early guilty pleas, and even steps taken by the offender to save the Crown money in the course of legal proceedings (I'm not kidding - it's s9(2)(fa)). And, importantly, the opening text to the relevant subsection states in no uncertain terms that a judge "must" take these sorts of things into account as considerations (read: 'reductions') when handing down the sentence. Filipo - whether due to sound legal advice, a genuine desire to make amends, or (as is more typically the case) some mixed combination of the two - did pretty much all of these things. The court will also have taken into consideration a pre-sentencing report prepared by Filipo's Probations officer; and, perhaps rather importantly, the Principles of Sentencing outlined in s8 of the aforementioned Act. Of particular interest here would be 8 (g) - which mandates that the judge "must" impose the "least restrictive" sentencing outcome appropriate to the circumstances; and 8 (h), which requires a judge to have regard for "particular circumstances of the offender" (such as, I guess, a future career in rugby) which might make a particular form of sentencing "disproportionately severe".

I guess what I'm trying to say is ... it's not exactly hard to see how Filipo (and his lawyer) have managed to get down to a situation of effectively no sentence. It's not "the system" breaking a whole bunch of rules that has allowed him to get to that point - instead, it's "the system" working pretty much exactly as intended, and largely as it would for many other people in a similar position and with similar factors intrinsic to themselves (such as their age, lack of previous record, available evidence of prior good character etc.).

The baying mob proclaiming that this is some sort of sui generis verdict of non-custodial only available to sportspersons is, quite simply, incorrect.

However, where the suspicions of 'special treatment' DO perhaps start to hold a bit more water is when it comes to the s106 Discharge Without Conviction which Filipo has been in receipt of. That's a somewhat uncommon gem (although by no means unprecedented - the schoolboys who were charged with first murdering and then manslaughtering aspiring rugbyplayer Stephen Dudley in 2013 were also granted discharges without conviction, for instance); and particularly given the statutory demand under the subsequent s107 that the "consequences of a conviction would be out of all proportion to the gravity of the offence", I can well understand why this has met with increased skepticism.

But even here, there appears to be a certain element of hysteria in the popular response. We don't just do this for aspiring rugby-stars. There's quite a litany of doctors and those seeking to become them who receive discharges for offending (including one relatively recent case wherein the same doctor scored two 106s within a year, for offences including attempting to ram a police vessel with his yacht in one case, and drink-driving in the other) - and I'm even aware of an individual who was given an s106 thanks to his journalistic aptitudes and aspirations.

So quite clearly, this is not just something we do for rugby players - even if Filipo's rugby-playing abilities did play a role in the judge's determination of his eventual sentence.

I don't know whether I'd agree that the consequences of a conviction would be "out of all proportion" to the gravity of Filipo's offending (although I'm a great - perhaps even 'soft-headed' - believer in giving people a second chance). But one thing I do know is how nice it would be for the forces of public-outcry and the media-agitation-machine which inevitably and invariably stirs it up, to actually get acquainted with the law before rushing headlong into condemnation of those who have to dispense it and suffer its sanction.