Police v Viane [2016] WSDC 56 (21 December 2016)

DISTRICT COURT OF SAMOA
Police v Viane [2016] WSDC 56

Case name:	Police v Viane
Citation:	[2016] WSDC 56
Decision date:	21 December 2016
Parties:	Police (Informant) and Viane, male of Vaitele uta (Defendant)
Hearing date(s):
File number(s):	D420/16
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai A. Roma
On appeal from:
Order:	You are ordered to pay $300.00 court costs by 12pm today before we all disperse to celebrate half the day off for Joesph Parker’s recent WBO title victory. Upon payment of those costs you will be discharged without conviction.
Representation:	Sgt K. Stanley for Prosecution Mr. S. Leung Wai for Defendant
Catchwords:	Influence of alcohol in breath –
Words and phrases:
Legislation cited:	Criminal Procedure Act 1972 s104, Sentencing Act 2016 s69
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant
AND

ROMERO TOBYAS VIANE, male of Vaitele uta
Defendant

Representation
Sgt K. Stanley for Prosecution
Mr S. Leung Wai for Defendant

Sentence: 21 December 2016

ORAL SENTENCE OF JUDGE ROMA

1. Mr Viane you appear this morning for sentence on the charge of driving whilst the level of alcohol, in your breath exceeded 40 micrograms per 100 millilitres of breath. The maximum penalty for this charge is 5 years imprisonment or a fine of $5,000.00.
2. Your offending occurred on the 28^th of January 2016 which is almost 11 months ago. Earlier this year in a decision I delivered on the 15^th of July 2016, I went through the circumstances of your offending. I do not need to do that again this morning.
3. In the same decision I also referred to the test to be applied in an application for a discharge without conviction, I need not also go through that this morning.
4. But there was an important matter that I was not satisfied with, which was why I deferred your sentencing to this part of the year to allow you the opportunity to undergo a certain programme and provide real evidence of. That matter relates to the consequences of a conviction on you.
5. I have before me this morning your affidavit of the 15^th of December 2016. The affidavit addresses 3 matters.
6. Firstly it confirms that you have successfully attended a drug awareness programme at Care NZ, Manaaki Aotearoa Clinic in Hamilton following an assessment and referral by Moana Solomona who is our Drug and Alcohol Court Clinician.
7. Secondly it confirms that you had enrolled and completed this year at the Waikato University School of Law, and awaiting your results.
8. Thirdly, the affidavit attaches a letter from the Samoa Law Society which refers to several matters. The most important is paragraph 4 which states that a conviction against you is a serious and relevant consideration in assessing your character in the future when you complete your law studies and apply for admission to the bar.
9. Against that background, the important point I must consider is whether the consequences of a conviction would be out of proportion to the gravity of your offending.
10. Again you were 8 micrograms of 100 milliliters of breath, over the limit, and I have found your offending to be at the lowest end of the scale.
11. On the letter from the Samoa Law Society, I am satisfied that a conviction would have an impact on your proposed application for admission to the bar upon completion of your law studies.
12. After weighing up the gravity of your offending against the consequences of a conviction on you as I am required under section 104, Criminal Procedure Act 1972 I am satisfied that the consequences of a conviction would be out of proportion to the gravity of your offending.
13. Even if I apply the more onerous test under section 69 of the new Sentencing Act 2016, I am equally satisfied that the consequences of a conviction would be out of ‘all’ proportion to the gravity of your offending.
14. Mr Viane I hope you have learnt a valuable lesson from an obvious poor judgment and the long process that you have gone through. I wish you the best in your studies and for the future.
15. You are ordered to pay $300.00 court costs by 12pm today before we all disperse to celebrate half the day off for Joesph Parker’s recent WBO title victory. Upon payment of those costs you will be discharged without conviction.

JUDGE FEPULEAI AMEPEROSA ROMA