The quality of mercy.
They built the gallows in a matter of hours, a mixture of rude materials and precise right angles. They coiled a rope, and then they hanged him. He was 17.
His name was Maketu Wharetotara and, in March, it will be 175 years since his death – the first time the death penalty was used in New Zealand. Three months before, Maketu had killed two adults and three children on Motuarohia (Roberton) Island near Russell, after being bullied by one of his victims.
The son of Ngapuhi chief Ruhe, Maketu was eventually handed over to British authorities and taken to Auckland. He was assigned a lawyer an hour before his trial, and his case was heard before an all-white jury on March 1, 1842. He pleaded not guilty, but the jury wasn’t inclined to debate whether British law applied to Maori, his age, or whether he understood the consequences of his attack.
They found him guilty and the judge sentenced him to death. He was led to the scaffold at midday, cloaked in penitence and a blue blanket. Prurience, righteousness, entertainment – a thousand settlers turned out on the corner of Queen and Victoria Sts to watch him twitch, to see justice done.
Capital punishment for murder was finally abolished in 1961, but between Maketu and Walter Bolton, hanged in February 1957 for poisoning his wife, 82 others were put to death.
The public has always prized finality and fitting punishment in our justice system, and the death penalty certainly offered that. But other sentences are less emphatic, more exposed to argument.
Last month, two cases created controversy. Nikolas Delegat was 18 when he assaulted two people, one a police officer who he knocked unconscious. Losi Filipo was 17 when he attacked four people early one morning in Wellington, badly injuring one of his victims. Delegat was convicted, ordered to complete community service and pay reparation. Filipo was discharged without conviction. Both sentences stirred public condemnation of the judges for stupid leniency, for favouring a richlister’s son, for succumbing to the hollow pleas of a promising rugby player. Firestorms of indignation and fury swept across all media.
The judge in Filipo’s case, Bruce Davidson, had considered the effects of a conviction on his professional sporting career, and ruled the potential consequences were out of proportion to the crime. In a section of his judgment that gained little coverage, Judge Davidson commented: “It is only now in New Zealand in 2016 that people are truly beginning to understand the impact of convictions on people for all sorts of reasons.” It appears the judge overestimated how cognisant and compassionate we are about this.
The public, rightly moved by the victims’ testimonies and affronted by the sheer ferocity of Filipo’s attack, demanded more, demanded some tangible totem of punishment.
Frustratingly, few have ventured just what that appropriate punishment should be, though many hint at jail.
To those who do, and any who’ve bayed for harsher justice, there are some genuine questions: What would sending Filipo to prison truly achieve? Would he be more or less likely afterwards to commit similar offences? How is someone who was a schoolboy at the time of his attack meant to be a social role model? Why have so few considered what other factors may have led to his propensity for violence?
This is not an excuse for Filipo. This is not to suggest judges are sages or their decisions inviolate. This is not to claim that past leniencies from judges have not proved naive and unsuccessful. But it is a call to avoid haste in judgment, or a clamour for revenge.
We lash out in response, seeking to sate our own anger, but often blinded by fury to a long-term view. No matter what Filipo does from now on, his life will forever be framed on Google by this mad moment and our response to it.
If I was one of Filipo’s victims, I too would wonder how serious an assault needed to be to warrant a conviction and would feel my injuries had been invalidated. Equally, if I was his family, I would seek an outcome that minimised the effect on the rest of his life. I’m neither. But I’m aware of the phenomenal power of a second chance. And every time I read of scorn at Filipo’s sentence, I think of Hautahi Kingi, whose story North & South recounted this year.
Sentenced to jail for assaulting his friend as an 18-year- old, Kingi’s conviction and sentence were eventually quashed. In May, a blameless decade later, he gained a PHD from Cornell University and now works as an economist in Washington. He will change the world for good.
When Justice Simon France discharged Kingi and a co- offender, he stated: “It is to be hoped they repay society for the opportunity it is thereby giving them.” That is the challenge facing Filipo – and any of us who’ve ever been spared, or offered quarter.