Up­front ED­I­TO­RIAL

The qual­ity of mercy.

North & South - - Contents - Mike White

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.

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