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.