29 Sep 2016

Lawyer defends court system following Filipo case

8:41 am on 29 September 2016

A defence lawyer has hit out at what he describes as wild and inaccurate attacks on the court system, in the wake of Losi Filipo's case.

Lose Filipo

Lose Filipo Photo: RNZ / Supplied

Filipo was discharged without conviction after assaulting four people, after his lawyer argued a conviction could damage his rugby career.

His contract with Wellington rugby was later terminated after a public outcry, and rugby managers admitted they should have known more about the case.

Auckland University Associate Professor of Law Bill Hodge was among fierce critics of Filipo's discharge, and said a prison sentence would have been expected for anyone else because of the aggravated nature of the assault.

But Robert Lithgow QC said Dr Hodge had got it wrong.

He said judges were required by law to see if there was any other way of dealing with a case besides sending people to jail, and this had been standard practice in courts since at least 1925.

Auckland University Associate Professor of Law Bill Hodge.

Auckland University Associate Professor of Law Bill Hodge. Photo: AUT

They were also obliged to consider a person's ability to practice their trade later on, before passing sentence.

Mr Lithgow said it was well established that sending a young man to jail very often made things worse.

Mr Lihgow told Morning Report today judges were required by law to investigate other options besides sending people to jail, and must consider their ability to work.

"Filipo was 17-years-old at the date of the offence, and the proposition was that he would not be able to work if convicted. We now discover you don't work if the public don't want you to. And is everybody happy with that? A 17-year-old with no other prospects, now not working."

Mr Lithgow said a disproportionate number of brown-skinned defendants appeared in court, desperate for options in their lives, and sending them to jail was often a highway to nowhere.

There was no point in building up prosperity for New Zealand if there was a permanent underclass being often sent to jail, he said.

Latest figures show fewer people are being discharged without conviction, with 2015 figures almost half what they were in 2010.

Criminal Bar Association vice president Len Anderson said it had become much more difficult for a lawyer to get a discharge without conviction for a client, with affidavits and supporting evidence required.

The Sensible Sentencing Trust agreed that discharges were happening less often and took some of the credit for this by encouraging public pressure to get tough on crime.

But Mr Lithgow suggested that police were more often issuing offenders with warnings, meaning they did not make it to the courts in the first place.

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