Police v Ropati [2016] WSDC 46 (21 October 2016)

DISTRICT COURT OF SAMOA
Police v Ropati [2016] WSDC 46

Case name:	Police v Ropati
Citation:	[2016] WSDC 46
Decision date:	21 October 2016
Parties:	POLICE v MAVAEGA HERMAN ROPATI, male of Vaiusu tai.
Hearing date(s):
File number(s):	D1362/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	JUDGE LEIATAUALESÃ D M CLARKE
On appeal from:
Order:	- Ordered to pay $350.00 prosecution costs within 7 days. On payment of prosecution costs, you are discharged without conviction. .
Representation:	L. Sio for National Prosecution Office T.T. Patea for defendant
Catchwords:	Assault – common assault -
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123
Cases cited:	Police v Papalii and Moalele, [2011] WSSC 132 (25 November 2011), R v Hughes [2000] NZCA 544, Fisheries Inspector v. Turner [1978] 2 NZLR 233.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

MAVAEGA HERMAN ROPATI, male of Vaiusu tai
Defendant

Counsel:
Ms L.Sio for National Prosecution Office
T.T. Patea for defendant

Decision: 21 October 2016

SENTENCING DECISION OF JUDGE CLARKE

2. Mavaega, you appear this morning for sentencing on one charge of common assault in breach of section 123 of the Crimes Act 2013 that on the 26^th April 2016, you assaulted Police Constable Ioane Iosefo.
3. You pleaded not guilty to the charge. On 28 September 2016, your plea of not guilty was vacated and a plea of guilty entered. The maximum penalty is 12 months imprisonment.

The Offending

4. According to the amended Summary of Facts, on 26 September at approximately 4.30pm, the victim who is a police officer attended to a call regarding a school fight at Savalalo Flea Market involving Maluafou and Avele Colleges. Upon arrival, the victim saw a student throwing a ‘teddy bear’ towards the other side of road. The victim quickly ran over and apprehended that student. As he was doing this, you intervened by punching the victim on the back of the head. You then ran off but were apprehended. The victim was not wearing a police uniform.
5. In your counsel’s submission, he says that when you punched the victim, you did not know he was a police officer and that you believed he was another person involved in the altercation at the market that day. There is nothing in the amended Summary of Facts that you knew the victim was a police officer and accordingly, I will accept for the purposes of sentencing what your counsel has said.

The Accused

6. You are an 18 year old male of Vaiusu. You are currently a student at the National University of Samoa completing your University Preparatory Year. In your affidavit submitted in support of your sentencing, you say that you are studying “Arts Papers” as well as “Introduction to Law”. Your hope is that you will get a scholarship to study law to become a lawyer as your first option and as a police officer as your second option.
7. Through a letter from the National University of Samoa, it is confirmed that a conviction against your name for a criminal offence would adversely affect your eligibility for a scholarship.

The Victim

8. The victim is Constable Ioane Iosefo. I have read Constable Iosefo’s letter dated 20 July 2016 where your parents have apologized to him, he has accepted the apology and has asked for the matter against you to be withdrawn.

Aggravating features of Offending

9. The aggravating features of your offending are as follows:
   • (a) Punch to the back of the head of the victim; and
   • (b) The victim is a police officer who was carrying out his policing duties.

The mitigating features of your offending

10. There are no mitigating features of your offending.

The aggravating factor relating to you as an Offender:

11. You are a first offender.

The mitigating factors relating to you as an Offender:

12. First, I take into account that you entered a guilty plea, late as it was. Secondly, I accept that you are remorseful and have accepted responsibility for your actions.

Application for a discharge without conviction

13. You have asked the Court through counsel to exercise its discretion in favour of a discharge without conviction under section 104(1) of the Criminal Procedure Act 1972. The application for discharge without conviction is not opposed by Prosecution.

Discussion

14. The exercise of the Court’s discretion under section 104 has been discussed in previous decisions of the Courts including in Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011), a sentencing decision of His Honour Sapolu CJ. In that case, His Honour Sapolu CJ adopted as the relevant approach in determining the question of whether to discharge an accused without conviction under 104 (1)(b) under Criminal Procedure Act 1972, the three step approach that was indentified in the case of R v Hughes [2000] NZCA 544, as derived from the judgment of Richardson, J in Fisheries Inspector v. Turner [1978] 2 NZLR 233.
15. The Court must firstly consider the gravity of the offending; secondly, the consequences of a conviction, and finally whether these consequences are out of all proportion to the gravity of the offending.
16. Applying the three step approach to your case:

(i)The gravity of your offending

17. You punched a plain clothes Police Officer in the execution of his duties. I accept that you did not know the victim was a Police Officer. He was also not injured and has asked for this matter to be withdrawn. Your offending in the circumstances are in my view at the lower end of offending.

(ii)The consequences of a conviction on you

18. You have submitted an affidavit in support of the application for a discharge without conviction. You are an 18 year old student with the ambition to become a lawyer and if not a lawyer, a police officer. The letter from the National University of Samoa clearly states that should a conviction be entered against you, it would adversely affect your opportunity for a scholarship. I have also perused the Police Service Regulations 2010 which states that a requirement for applicants to the Samoa Police Service includes that they shall not have been convicted of an offence punishable by imprisonment.

(iii)Whether the consequences of a conviction will be out of proportion to the gravity of your offending.

19. You are at the cusp of taking on further studies that will determine the course of your future life. You wish to become a lawyer or a police officer, both honorable roles through which you can serve your community. I accept that a conviction against you for your offending will have a significant and detrimental effect on you that substantially outweighs the seriousness of your offending. For those reasons, I will grant you a discharge without conviction.
20. Before I however formally grant the discharge without conviction, I want to say this to you. I sincerely hope that from your experience through the justice system, you have learnt a valuable lesson. As a young man who wishes to become either a lawyer or a police officer, it is critical that you are a law abiding citizen. These roles entrust in our lawyers and police officers great responsibility in terms of the practice and enforcement of the law. Therefore, it requires those who are entrusted with these responsibilities to conduct themselves to a very high standard and importantly, in accordance with the law. Make the most of this opportunity today and may it add to your learning that should you achieve the goals that you have set for yourself, it will make you a better lawyer or police officer.

The penalty

21. You are ordered to pay $350.00 prosecution costs within 7 days. On payment of prosecution costs, you are discharged without conviction.

JUDGE LEIATAUALESÃ D M CLARKE