Editorial: Deportation case presents a hard call

Senee Niusila was given a gift last August by a compassionate judge who did not wish the direct and indirect consequences of a conviction to outweigh the seriousness of the crime of which he stood accused.

In effect, Judge Josephine Bouchier gave him the gift of life because the kidney dialysis treatment he was receiving would not be available in his native Tuvalu, to which he would almost certainly have been deported.

Niusila has repaid that compassion by repeating the very offence for which he had been discharged without conviction last year. Again he assaulted his wife. And again, incredibly, she has stood by her man and made excuses for his conduct.

New Zealand is once more faced with a dilemma: should it deport Niusila and, in effect, sentence him to death? Or should it continue to offer him life-saving medical care and risk ongoing violence against his wife? Whichever way one looks at it, it is a hard call.

Were it to deport him, the action would be analogous to extraditing a serious offender to a country that continues to use the death penalty.

The Government has given an assurance that no such extraditions will be allowed. Logic suggests it cannot, therefore, condone a unilateral act of deportation that would have the same effect on an offender.

However, the state also has a responsibility to protect the victims of domestic violence. This week's campaign by Women's Refuges - "You can't beat a woman" - has highlighted the scale of the problem. Last year 23,782 women and children sought refuge, usually from violent partners.

Niusila's wife, whether she admits it or not, is such a victim. And she has faced an escalating problem. Last year her husband assaulted her. This year he assaulted and threatened to kill her. What next? Society has a moral responsibility to protect her from further harm, her misplaced sense of loyalty notwithstanding.

The question is how? Niusila has confronted our justice system, and the Government that last year supported his cause, with a form of moral blackmail.

He must, however, pay both for his crime and for the abuse of the compassion already shown to him. That means a term of imprisonment. There he will continue to receive the medical treatment necessary to keep him alive. His wife will be protected from further assaults. Unfortunately it will be, at best, a temporary solution. Sooner rather than later he will be released from prison and his recent behaviour suggests he does not learn lessons.

Ideally, he could become a suitable candidate for a kidney transplant while serving his sentence and be deported as an overstayer upon release. He had long outstayed his welcome even before being given his current permit, which was predicated on his need for life-saving treatment.

If that need were removed, so should he be. Yet ideal and reality are two different things. People can wait years for transplants and Niusila has already been on the list for about 12 months.

He is not the first to escape the consequences of a crime through a medical condition. In times past, when the death penalty was widely used, many a woman escaped the gallows by "pleading her belly". It was one of the perversities of justice that it was permissible to take the life of a prisoner but not that of her unborn child.

Nor is he the first whose medical condition gave rise to controversy. In 1986 a convicted molester in need of a heart transplant caused a public uproar.

Almost 20 years later we are no closer to reconciling the opposing needs of justice and humanity in such cases. The hard line, as advanced by National's Wayne Mapp, says "deport him" but the hardliners, unlike a judge, have the luxury of not having a man's life on their consciences.

The humanitarian stance, and the one that will almost certainly prevail in Niusila's case, is that he must continue to receive the treatment that keeps him alive. That is the price of living in a civil society. It is, however, a price we pay with great reluctance.