Police v Siauvale [2015] WSDC 9 (25 November 2015)

DISTRICT COURT OF SAMOA
Police v Siauvale [2015] WSDC 9

Case name:	Police v Siauvale
Citation:	[2015] WSDC 9
Decision date:	25 November 2015
Parties:	POLICE v TALALELEI SIAUVALE, male of Sinamoga.
Hearing date(s):
File number(s):	D1801/15 & D1802/15
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Roma
On appeal from:
Order:	- For those reasons, you are convicted and fined $200.00. That amount is to be paid by 4pm tomorrow 27 November 2015, in default, you will serve 2 weeks imprisonment
Representation:	B.F. Lo Tam for prosecution T. Tuioti for defendant
Catchwords:	Sentence - assault – armed with a dangerous weapon – maximum penalty – common assault – aggravating factors – mitigating factors
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123 Police Offence Ordinance 1961 s.25 R v. Hughes [2000] NZCA 544 Police v Papalii and Moalele
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TALALELEI SIAUVALE, male of Sinamoga.
Defendant

Counsel:
B.F. Lo Tam for Police
T. Tuioti for defendant

Decision : 25 November 2015

SENTENCING REMARKS OF JUDGE ROMA

Charges

1. Talalelei, you appear for sentencing on 2 charges. The first is one of common assault, contrary to section 123 of the Crimes Act 2013, which carries a maximum penalty of 1 year imprisonment.
2. The second is one of being armed with a dangerous weapon contrary to section 25 of the Police Offences Ordinance 1961, which also carries a maximum penalty of 1 year imprisonment.
3. At first, you denied the charges. Subsequently through your Counsel, you sought to vacate your pleas of not guilty and enter guilty pleas to both.

Offending

4. According to the Summary, which you accept, both charges arise out of an incident that occurred at Toamua in the afternoon of Sunday 31 May 2015.
5. The victim was amongst a group of males who had been drinking at Toamua. They later became involved in a brawl, and a team from Faleata Police Outpost was called to assist. You were part of that team.
6. Upon your arrival at Toamua, the brawl had dissipated but the victim had gone home to retrieve two machetes. He came back through the crowd and towards the direction of the Police vehicles swinging one machete.
7. Against police warning to stop, the victim threw one machete which hit one of the police vehicles. He threw the other machete at one of the officers who had called out to him to stop. Fortunately it missed.
8. The victim alighted and along with other officers, chased after him. When the victim was finally apprehended and escorted to a police vehicle, you picked up a stone and threw it at the victim, hitting him on the side.

Victim

9. The victim is a 21 year old single male of Toamua. He is currently unemployed.
10. In the Victim Impact Report, he says that he suffered bruising and swelling as a result of being hit with a stone. He has learnt a good lesson from the incident and now avoids drinking alcohol and hanging out with the other youths of his village.
11. He says that you have not apologised to him but that he feels for you as the incident may have affected your work.

Aggravating Factors

12. I accept the Prosecution’s submission that an aggravating feature of your offending lies in the fact that you are a Senior Police Constable on duty at the time of the offending. More significantly, the victim was already apprehended and under police custody when you acted in the manner charged.
13. No doubt, what the victim did could have caused damage and injury to a member of the crowd or any of the officers including yourself. He had 2 machetes. He swung and threw one at the direction of the police vehicles. He threw the other at one of the officers and you all had to chase after him. But he was already apprehended when you decided to pick up a stone and throw it at him.
14. You have a duty to ensure the safety of those under police custody. For that brief moment, you lost control and failed in upholding that duty. You should have known better.
15. The fact that you used a stone is also an aggravating feature of your offending.
16. Because the incident had attracted and was witnessed by a crowd, I am also of the view that your actions tended to lower the image of the police in the eyes of the public and that is also an aggravating feature of your offending.

Mitigating Factors

17. In relation to your offending, I accept that you were frustrated by the actions of the victim. However, I do not place much weight on it, again because of the fact that the victim was already under police control when you approached and threw a stone at him.
18. Your assault on the victim involved one throw, enough to cause him bruising. Compared to other cases of common assault, the nature of your assault and the impact on the victim, is in my view less serious.
19. In respect of yourself as an offender, I consider in mitigation of penalty your guilty pleas to both charges.
20. I accept that you are remorseful.
21. I must also consider your personal circumstances. From your counsel’s submission, you are now 29 years of age and the eldest of 5 siblings. Since completing secondary school, you have realised your dream of becoming a Police Officer. You have been a Police Officer for over 10 years and now hold the rank of Senior Constable. You are currently on suspension as a result of these charges. In her testimonial, your mother speaks of your contribution to the upkeep of your family and in funding the education of your other siblings. This is the first time you have appeared in Court for a criminal offence and clearly, you are person of previous good character.

Discussion

22. I bear in mind that the sentence I impose must take into account the gravity of your offending, hold you accountable for your conduct, provide deterrence for other likeminded police officers and provide for rehabilitation and reintegration into the community.
23. Having said that, I say at the outset that a custodial sentence is inappropriate.
24. The important question in my view is whether I should grant your Counsel’s application for a discharge without conviction under section 104 of the Criminal Procedure Act 1972.
25. The exercise of the Court’s discretion to grant a discharge without conviction has been discussed in many numerous cases and decisions. One of those is decision in Police v. Papalii & Moalele [2011] WSSC 132, also referred to in the submissions of your Counsel and the Prosecution.
26. In that case, His Honour the Chief Justice adopted the three step approach identified in R v. Hughes [2000] NZCA 544 as the relevant approach in determining an application for a discharge without conviction under section 104(1)(b) of our Criminal Procedure Act.
27. The three questions the Court must therefore consider are:
    • (i) The gravity of the offending;
    • (ii) The consequences of a conviction on the defendant;
      • (iii) Whether the consequences of the conviction are out of proportion to the gravity of the offending.
28. In support of your application, your Counsel submits that a conviction will be detrimental to your employment. As to how a conviction will be detrimental, I do not know from the material before me. There is also nothing before me to say what impact, if any, a conviction will have on your employment.
29. Ms Tuioti also relies on previous cases involving police officers. The most relevant in my view is again the case of Police v. Papalii & Moalele, where a police officer was discharged without conviction for assaulting a female suspect. The assault involved the officer hitting the victim’s fingers twice with a stick. The assault in that case followed days and hours of police interrogation of the victim, and the victim giving the police the run around as to the whereabouts of the burial site for the victim’s son.
30. Your application is strongly opposed by the prosecution. They say that because of your status as a Police Officer, and the fact that your offending involved the abuse of a victim who was under police custody, it is of no trifling, a nature.
31. As to the likely impact of a conviction, they argue that that would be a matter for the Ministry of Police.
32. I have considered your case carefully Talalelei and I accept that your offending was not of a trifling nature. I accept that you were frustrated; there was a momentary lapse of good judgment on your part and the assault involved one throw. But you were an officer on duty; you were in uniform and the victim had already been apprehended and under custody. The victim was then clearly defenceless and what you did was unnecessary. I am therefore not persuaded that your offending was at the low end.
33. As to the consequences of a conviction, apart from the fact that you will have a record, I am not convinced on the material before me of an impact of any such conviction on your employment.
34. Accordingly, I am also not satisfied that the consequences of a conviction will be out of proportion to the gravity of your offending.
35. No doubt, the Courts have exercised the discretion in favour of other police officer defendants in the past by discharging them without conviction. In the circumstances of your case Talalelei, I am of the respectful view that to do so, would be sending a wrong message to the public and particularly to your other fellow officers, especially because of the important duty that you owe the public.
36. For those reasons, you are convicted and fined $200.00. That amount is to be paid by 4pm tomorrow 27 November 2015, in default; you will serve 2 weeks imprisonment.

JUDGE ROMA