Police v Inifi [2016] WSDC 9 (14 March 2016)

DISTRICT COURT OF SAMOA
Police v Inifi [2016] WSDC 9

Case name:	Police v Inifi
Citation:	[2016] WSDC 9
Sentence date:	14 March 2016
Parties:	POLICE v ONO INIFI male of Maluafou
Hearing date(s):
File number(s):	D3251/15,D177/16,D178/16,D179/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	(a) In respect of your offending on 20 December 2015 (D3251/15), you are fined $500.00 to be paid by 4.00pm Friday 18 March 2016 in default, 5 weeks imprisonment; (b) In respect of your offending on 26 December 2015 driving with influence of alcohol on your breath of 76 micrograms, your are sentenced to six (6) months supervision on the following conditions: (i) You attend an Alcohol and Drugs Program with an emphasis on alcohol for a period as directed by the Probation Service during the supervision period; (ii) You are prohibited from consuming alcohol for a period of three months from today’s date; and You are prohibited from consuming alcohol for a period of three months from today’s date; and (iii) You are to carry out 50 hours community work. (iii) In respect of your driving of an unregistered vehicle (D178/16) you are fined $100.00 also to be paid by 4.00pm Friday 18 March 2016 in default, 1 week imprisonment; and (d) In respect of your driving of the vehicle whilst unlicensed, you are fined $100.00 also to be paid by 4.00pm Friday 18 March 2016 in default, 1 week imprisonment;
Representation:	Atoa for prosecution Defendant in person
Catchwords:
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.27(a)&72A(2) and s.7(1)(2) & Road Traffic Breatherlyser Act 2009 s.40(1)(5)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ONO INIFI male of Maluafou.
Defendant

Counsel: Ms Atoa for Prosecution

Defendant in person

Sentence : 14 March 2016

ORAL SENTENCE OF DCJ CLARKE

1. Ono, you appear for sentence having pleaded guilty to the following charges:
   • (i) That on the 20^th of December 2015, you were the driver of a taxi private registration plate 0519 on Falealili Street while the proportion of alcohol on your breath was 75 micrograms as ascertained by an evidential breath test exceeding the 40 micrograms of alcohol per 100 micrograms of breath;
   • (ii) That on the 26^th of December 2015, you were the driver of a taxi private registration plate 0519 while the proportion of alcohol on your breath was 76 micrograms as ascertained by an evidential breath test exceeding the 40 micrograms of alcohol per 100 micrograms of breath;
   • (iii) That on the 26^th of December 2015, you drove a Pontiac Bonville without registration plates with such vehicle not having been registered and licensed; and
   • (iv) That on the 26^th of December 2015, you drove a Pontiac Bonville on Faleata Road not being the holder of a driving licence valid in respect of such class of vehicle.
2. At your sentencing hearing on 26 February 2016 over two weeks ago, you informed the Court that in respect of the charge of being an unlicensed driver, you in fact held a valid driver’s licence. You were asked to show your driver’s licence but informed the Court that it was left at home. You were then asked to bring your driver’s licence to Court today. You have today come to the Court and advised the Court that you cannot find your driver’s licence, despite having over two weeks to locate your driver’s licence. I am not prepared to grant leave to vacate your guilty plea for driving unlicensed in the circumstances. I note also that section 27(5) of the Road Traffic Ordinance 1960 allows 5 days to present your licence. You have been given in excess of 14 days and in the circumstances and in the absence of you producing your driver’s licence to the Court, your guilty plea will remain. We will therefore proceed to your sentencing in respect of all four charges referred to in paragraph 1(i) – 1 (iv) above.
3. In the early hours of Sunday 20 December 2015 at about 2.00am, you were stopped by Police at Maluafou. You were driving a vehicle registration number T 0519 without the headlights on. Police identified that you were under the influence of alcohol and administered a breath screening test which disclosed a reading of 91 micrograms of alcohol on your breath. You were then taken to the Police Station and an Evidential Breath Test was administered disclosing a reading of 75 micrograms of alcohol per 100 micrograms of breath.
4. On Saturday night, 26 December 2015, 6 days after you were stopped and subsequently charged for driving under the influence of alcohol, you were again driving the Pontiac Bonville number T 0519 and stopped by Police at Vaitele-tai. According to the Summary of Facts accepted by you, one of your passengers waived down the Police Patrol and told Police you were intoxicated. A breath screening test was administered and a reading of 96 micrograms of alcohol on your breath was disclosed. You were again taken to the Police Station and an evidential breath test was carried out. The evidential breath test disclosed a reading of 76 micrograms per 100 milliliters of breath.
5. On the 26^th of December 2015, the Pontiac Bonville driven by you was not registered.
6. You told the Court that you are a carpenter for Ah Liki with an income of approximately $180 per week. You also told the Court that you have two children aged 6 and 3 and are married.
7. Prosecution made no submissions in respect of sentencing and a period of imprisonment has not been sought.
8. The maximum penalty for each of the offences of driving with a proportion of alcohol exceeding 40 micrograms in a person’s breath is 5 years imprisonment or a fine of $5,000 or both. The penalty for driving an unregistered vehicle is a fine not exceeding $200.00 as is the penalty for driving whilst unlicensed.
9. You are employed as a carpenter with Ah Liki, have 2 children and appeared at your sentencing hearing to be very remorseful, expressing your remorse through tears. You asked for a light sentence.
10. Whilst you expressed your remorse to the Court and requested leniency, there are a number of aggravating factors in respect of your offending. These include that in terms of your offending on 20 December 2015, you drove the vehicle intoxicated without your headlights on. This represented a danger to other road users. In respect of your offending on 26^th December 2015, you repeated the same offending as you did on 20 December 2015, only 6 days later. Having been arrested, held in custody and charged on the 20^th December 2015 with driving under the influence of alcohol, on the 26^th of December 2015 whilst your Court matter for your offending on 20 December remained pending, you again decided to consume alcohol and drive your same vehicle. This is a serious aggravating factor in your offending on 26 December 2015 and demonstrated a clear disregard for the law and an appreciation for the seriousness of the matters before the Court. You learnt nothing from your experiences on 20 December 2015 with the Police. Added to that is that your vehicle was not registered to be on the road. There are no mitigating factors in respect of your offending.
11. I note that you are a first offender, however, this is outweighed to a large degree by the fact that your second offence was committed whilst your offending for the first offence was to be called before the Courts. Your remorse however is noted as is your guilty plea to all three charges at the earliest opportunity.
12. The purpose of sentencing you Ono is to hold your accountable for what has happened, denounce and deter your conduct and deter other likeminded persons from offending in the same manner. Rehabilitation is also a relevant purpose of sentencing to reduce your risk of re-offending in future.
13. In my view, a term of imprisonment whilst open to the Court, is not necessary to address the purposes of sentencing which I acknowledge also include the need to denounce the conduct and to deter you and others in the future. You are a first offender at the age of 39 years and while the offending is serious offending and carries a penalty of up to 5 years imprisonment, it is not so serious that prison is inevitable in your case. In sentencing you today, the sentence I will impose will focus on your rehabilitation as an offender. Learning to control your drinking is a key factor in reducing the risk of your re-offending. Should you however re-appear for a similar offence of driving under the influence of alcohol, you should be prepared for a sentence of imprisonment.
14. In the circumstances you are convicted and sentenced now on all four charges as follows:
    • (a) In respect of your offending on 20 December 2015 (D3251/15), you are fined $500.00 to be paid by 4.00pm Friday 18 March 2016 in default, 5 weeks imprisonment;
    • (b) In respect of your offending on 26 December 2015 driving with influence of alcohol on your breath of 76 micrograms, your are sentenced to six (6) months supervision on the following conditions:
      • (i) You attend an Alcohol and Drugs Program with an emphasis on alcohol for a period as directed by the Probation Service during the supervision period;
      • (ii) You are prohibited from consuming alcohol for a period of three months from today’s date; and
      • (iii) You are to carry out 50 hours community work.
    • (c) In respect of your driving of an unregistered vehicle (D178/16) you are fined $100.00 also to be paid by 4.00pm Friday 18 March 2016 in default, 1 week imprisonment; and
    • (d) In respect of your driving of the vehicle whilst unlicensed, you are fined $100.00 also to be paid by 4.00pm Friday 18 March 2016 in default, 1 week imprisonment;
15. You have money to pay for alcohol; you have money to pay the fines. You have asked for leniency and a chance, you have been given both. You will not get another one. Take this opportunity to think about your actions, your family and your children and in particular, by addressing your alcohol consumption which clearly is having a significant and detrimental affect on your life.

You are disqualified from holding or obtaining and driver’s licence for 12 months and shall thereafter remain disqualified until such time as you have passed such driving test of competence to drive any class or classes of vehicles you may thereafter seek to drive.

JUDGE D M CLARKE