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Police v Robles [2018] WSDC 13 (19 June 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Robles [2018] WSDC 13


Case name:
Police v Robles


Citation:


Decision date:
19 June 2018


Parties:
POLICE (Informant) and MARIO ANDREAS ROBLES, male of Colombia (Defendant).


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
You are Discharged without conviction but subject to the following:
(i) You are ordered to pay Court costs in the sum of SAT$1000;
(ii) You are also ordered to pay SAT$1000.00 costs to Customs for doing such a wonderful job in checking those who enter our border.
The sum of SAT$2000 must be paid to our Ministry by 10am this Friday, which is the 22nd of this month. You are to return to this Court at 10.30am the same date to provide proof of payment. If you turn up with the proof of payment (receipt), then I will make the final order to discharge you without conviction. Should you fail to appear and we find out from the records you have not paid, then I will issue a warrant of arrest against you and you will be remanded in custody until brought before me for re-sentencing. And I can tell you for sure now, that a conviction will definitely be entered. So it is so important Mr Robles that you pay this sum and be here this Friday.
In the meantime, your travel document or your passport will remain in the custody of the Registrar until further orders as to its release from me on this Friday at 10.30am.


Representation:
I Atoa for Prosecution
M McFarland for the Defendant


Catchwords:
Possession of utensil – pipe – importing a prohibited implement – tourist – undeclared item – first time offender – remorseful – immigration and travel impediment – low gravity of offending – conviction out of all proportion to gravity of offence - discharge without conviction


Words and phrases:


Legislation cited:
Customs Act 2014 ss. 91 schedule 1; 249.
Narcotics Act 1967 s 13B.
NZ Sentencing Act 2002 ss. 106; 107.
Sentencing Act 2016 ss. 5; 6; 11; 69; 70.


Cases cited:
A (CA 747/10) v R [2011] NZCA 328;
Adams on Criminal Law: Sentencing (Brookers: 2007);
Alshamsi v Police HC Auckland CRI – 2007-404-62, 15 June 2007;
Blythe v R [2011] NZCA 190;
Chang v AG [2018] WSCA 3 (13 April 2018);
Currie v Police HC Auckland CRI -2008-404-307, 27 May 2009;
DC v R [2013] NZCA 255;
Gasson v N [2012] NZHC 2988;
George v Police [2014] NZHC 1725;
Han v Police [2012] NZHC 791;
Iosefa v Police NZHC Unreported Christchurch CIV-2005-409-624, 21 April 2005;
Jeon v Police [ 2014] NZHC 66;
Mu v Police 24/10/03, CA 262/03;
NZ Police v Xu (DC Auckland-2009-004-026303, 6 July 2010);
P v Barlow [2017] WSSC1 63;
P v Lafi [2008] WSSC 44;
Police v Lauina [2017] WSDC 5 (12 May 2017);
Police v M [2013] NZHC 1101;
P v Magalogo [2006] WSSC 18;
P v Masame [2007] WSSC 92;
Police v Nelson Annandale [2017] WSDC 15;
Police v Papalii [2011] WSSC 130 (7 November 2011);
Police v Ropati [2018] WSDC 9 (11 May 2018);
Police v Salele (unreported decision delivered on 12/04/18);
P v Tulua [2016] WSSC 123;
P v Webber [2016] WSSC 37;
R v Foox [1999] NZCA 281; [2000] 1 NZLR 641;
R v Hermard; HC Christchurch T30/03 11 April 2003;
Z v R [2012] NZCA 599.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E
Prosecution


A N D:


MARIO ANDREAS ROBLES, a male of Colombia
Defendant


Presiding Judge: Alalatoa Rosella Viane Papalii
Counsel: I. Atoa for Prosecution
M. McFarland for the Defendant
Submissions: 7 and 15 June 2018
Decision: 19 June 2018


SENTENCING DECISION

Introduction

  1. Mr Robles you face two counts for sentencing today. First, possession of a utensil in the form of a pipe (“the Pipe”) under section 13b Narcotics Act 1967 attracting a penalty of 7 years’ imprisonment or a fine not exceeding 200 penalty units or both. Secondly, importing into Samoa a prohibited implement, contrary to s91 schedule 1 and s249 Customs Act 2014 which has a penalty of a fine not exceeding 3000 penalty units or a maximum imprisonment term of 6 years or both. To both charges you changed your plea via counsel on 7/06//18.
  2. I have perused written submissions and heard further oral address in Court from Counsel. This is my sentencing ruling.

Background to the Offence

  1. Your counsel informs you accept the summary of facts (“SOF”). According to those facts on 22/03/18 you arrived on our shores on flight No OL732 where a routine check was carried out by our Customs division at its check point whereby the pipe was discovered in a zip lock bag in your toiletry bag. You did not declare this item or anything else of interest on your arrival card.
  2. Customs officers were understandably alerted to the pipe given it is contraband. A full screening and search of your luggage and your person was performed. You were later interviewed by the Customs Principal Officer about the pipe and you told him that you used to smoke cannabis in New Zealand. The pipe was sent to SROS for testing and their report confirmed the presence of burnt marijuana residue on the flare end of the pipe.
  3. You filed an affidavit setting out your version of events where you deposed you had packed in haste when you moved out of your flat and had carelessly thrown items in the bathroom into your toiletry bag. You stated the pipe belonged to your flatmate who smokes marijuana. But you do not smoke this, tobacco or do drugs. You also deposed you invited Police to take a drug test from you to confirm this. I have read your caution statement dated 9/04/18 and it confirms this portion of your affidavit.
  4. You accept you were careless and stupid and that you should have gone through the contents of your bag to double check. But that you had no intention of using the pipe whilst in Samoa or of committing a crime for that matter.

Your Personal Background

  1. You are a 25-year-old Colombian National but have been residing in NZ for three years now whilst pursuing tertiary studies in Auckland NZ at Avonmore Tertiary Institute. You are a private international student and your mum funds your tuition fees from a loan she took out in your home country to enable you to continue your studies and fulfil your dreams. Whilst studying you work to support yourself.
  2. You recently graduated on 20/03/18 with a Level 6 Diploma in Business Studies but also have other qualifications of the same nature at different levels. You decided to reward yourself for all your hard work by travelling to Samoa on holiday and hence this trip.
  3. It is your wish to return to reside in New Zealand so you may find employment and put your qualification to good use. Your counsel also verbally informed the Court you wish to continue to pursue a Post Graduate Degree if given the chance. But your first priority is to secure a post study work visa then take it from there.
  4. According to the documents before me your student visa which allowed you to remain in NZ has expired but you have submitted to NZ Immigration (“NZI”) a new application for a post study job search visa. It seems there is a pressing need to process this and have it concluded so you may return to NZ to pursue your plans.

Victim

  1. The victim as we all know is the State and Ministry of Revenue and Customs.

Aggravating factors

  1. I see as aggravating the fact that the pipe found on you at the point of entry at our border is contraband and subject to our laws. In simple terms it is illegal and you should have never brought it with you.
  2. I also consider the fact that as a tourist you should have been more diligent by double checking the contents of your luggage and declare any items or dispose of them before the check point. However, in your case you said you were careless and negligent in not doing so.
  3. You are a first time offender so there are no aggravating factors personal to you.

Mitigating Factors

  1. The mitigating factors are:

Submissions

  1. Ms McFarland on your behalf requested that you be discharged without conviction under sections 69 and 70 Sentencing Act 2016 (“SA”) as the consequences of a conviction would be out of all proportion to the gravity of the offending. Prosecution in their amended written submission dated 15/06/18 argue that a conviction and monetary fine is a suitable penalty. They also put forth cases decided in the Supreme Court which are obviously distinguished.
  2. However, I also record that at the conclusion of oral submissions by Prosecution last week, they informed that they are amenable to concede to your application for a discharge but they seek $1000 costs be paid to Customs and any other pecuniary penalty the Court deems just in the circumstances.
  3. Be that as it may, I remind myself that the Prosecution’s consent does not bind the Court because as a sentencing judge, I am still required to assess and determine whether a discharge without conviction should be granted on the materials before me. I will now turn to consider this.

Law of Discharge without Conviction

  1. Section 11 SA provides that where an accused has pleaded guilty to an offence, then before entering a conviction and imposing sentence, the Court must consider whether such accused would be more appropriately dealt with by a discharge without conviction under sections 69 and 70. This is a mandatory requirement as confirmed by our Court of Appeal in Chang v AG [1] where the learned Justices stated “it appears from s 11 that in every case the Court is to consider the possibility of such a discharge.”
  2. The law is now settled in relation to a discharge without conviction as set out by the learned CJ Sapolu in P v Papalii and Moalele[2] involving a three step test. It was also further canvassed in my sentencing decision of Police v Lauina[3] and subsequent cases. I again gave a comprehensive analysis in the recent case of Police v Fepuleai Atila Ropati[4].
  3. As I observed in the two latter cases, section 70 SA mandatorily requires that before a Court exercises its discretion to discharge an accused without conviction under section 69 of our Act, it must firstly be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. This is normally referred to as the disproportionality test and is effectively a jurisdictional test. So it is a two staged approach as recently recognised by our Court of Appeal in Chang v AG.[5] So section 70 is a gateway that must be met first before exercising the discretion to discharge under s69.
  4. As I said above section 70 involves a three step approach and requires a Court to make the following judicial assessments:
  5. This is the same approach to sections 106 and 107 of the NZ Sentencing Act 2002 and our Courts have been following it.
  6. I will now consider the three step test and I start with the gravity of the offending.

Gravity of the Offending

  1. It is well established[6] as clarified by the NZ Court of Appeal in Z v R[7] that:

“[27] when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the Court should then identify the direct and indirect consequences of a conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the Court determines that they are out of all proportion it must still consider whether it should exercise the residual discretion to grant a discharge without conviction (although as this court said in Blythe, it will be a rare case where the Court will refuse to grant a discharge in such circumstances).

The approach just outlined seems to us to fit best with the structure of s107 and to provide the most helpful framework for analysis. While we are conscious that the Court in Blythe expressly disapproved it, we do not consider the approach to be wrong in principle. What we do consider to be wrong in principle is to leave the consideration of personal aggravating and mitigating factors out of the s107 analysis and to address them only in the context of the s106 discretion. We do not see how the disproportionality analysis required by s107 can be undertaken without taking into account the offender’s personal aggravating and mitigating circumstances. However, while consideration of these circumstances must in our view be carried out in the context of s107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s107 context the precise point at which they are considered is unlikely to be material.”

  1. I have been following this approach in at least five discharge without conviction cases and I intend to do so here as well.[8]
  2. So in terms of the gravity of the offending, I take into account the aggravating factors listed above in paragraphs 12 to 14. There is also the seriousness of the offences as indicated in the penalties imposed by Parliament; the leading one namely possession of a utensil has a maximum imprisonment term of 7 years and the importing one 6 years. But as I said in Ropati, the seriousness of the offence and the allowable penalty imposed by law is not the only determining factor for assessing the gravity of the offence.
  3. I also take into account the fact that the pipe was confiscated at the airport checkpoint at our borderline. Put simply even if you intended to use it here thereby completing the offence under s13(b), you never did get the chance to do so as the pipe was instantly discovered and confiscated. This differs from a case scenario involving someone reporting seeing you with the pipe after you have been here for a couple of days.
  4. Also the discovery of the pipe was not accompanied or compounded by a further finding of illicit drugs including marijuana. As I said before, the mens rea element of s13(b) that you intended to use the pipe to commit a crime against the Narcotics Act is absent. I believe you when you said that you never intended to use the pipe in Samoa for personal consumption of marijuana or any drug as you never knew you had it with you. In my view the absence of the mens rea element significantly reduces the gravity of the offending.
  5. I accept what you said which remains unchallenged in that respect that you had packed the pipe in haste with your other possessions. I accept that it was inadvertent error on your part and unintentional. But this does not exonerate your obligation as a visitor to this country to be more responsible and diligent when packing the contents of your bag rather than being reckless and careless.
  6. Similarly you have an obligation to truthfully declare the items you carry with you or the contents of your luggage as a false declaration is an offence and would definitely land you into further trouble. It is so crucial that you remember that and that once you enter a country you are subject to its laws. But I accept that had you known about its presence you would have either declared it or dispose of it.
  7. I am certain this incident will be a lifetime lesson for you and one you will never forget the next time you intend to travel outside of New Zealand, Colombia or wherever.
  8. Taking into account all the relevant aggravating and mitigating factors, I form the view that the gravity of the offending is on the lower end of the spectrum of this type of offending.

Consequences of a Conviction

  1. As I said in Lauina[9] and more recently P v Salele[10] and P v Ropati,[11] the threshold test for the consequences to be taken into account was explained in the NZ High Court case of Iosefa v NZ Police[12] where that Court observed that:

“...It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient that the Court is satisfied there is a real and appreciable risk that such consequence would occur.”

  1. Put simply to meet the test it is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences may occur.[13] As I said in Salele and Ropati, taking guidance from NZ case authorities, there is no onus of proof on the Accused. The test is simply the Court must be satisfied. It is expected however that those seeking a discharge would place before the Court sufficient information for the Court to assess this.[14] You have done so here. But a Court may also take judicial notice of facts and rely on its own direct knowledge.[15]
  2. You have put forth Mr Robles that there would be serious ramifications of a conviction on your person, particularly your ability to secure an open post- study work visa so you may continue to reside in NZ and find employment matching your qualification. You also intend to continue to the next level of your tertiary education. But a conviction would mean the end of all that as you would either be deported or forced to return to Columbia.
  3. I have on record a lengthy affidavit from Mr Zenzhen Chen, an Auckland based Immigration lawyer. He deposes of the following and hindrances likely to occur (in no order of importance) as a result of a conviction:
  4. At paragraph 10 of Mr Chen’s affidavit he deposes that:

“To my knowledge, possession of a prohibited item or a utensil is sufficient reason for immigration to revoke or refuse a temporary visa and face deportation liability as well as the refusal to grant a visa due to character issues despite a character waiver and in my opinion, this is a real and realizable risk to Mr Robles that he would not be granted a post –study open work visa”.

  1. Then at para 11 he says:

“Mr Robles application which he currently applied for would be declined if the immigration case officer decides not to consider a character waiver request as is his/her discretion”.

  1. These concerns are also echoed in your own affidavit where you deposed of these extreme ramifications. You stated you do not wish to return to Columbia and that you have worked and studied hard to make your mum proud. But your moment’s inadvertence has proven costly. Your affidavit and that of Mr Chen’s remain unchallenged.
  2. Having considered all material facts and case authorities, I am of the view that there is a real and appreciable risk the consequences you stated may well happen to you, i.e. that a conviction will result in your visa application being denied, leading to refusal of entry to NZ, your being deported or forced to leave. Moreover it impede your travel. I am satisfied that this is not just a fanciful speculation or simply conjecture. It is a real and appreciable risk. There have been known cases where travel impediment was put forth as a reason for discharging an accused and one such example is P v Nelson.[17]
  3. I have read numerous immigration cases[18] concerning non NZ nationals including Samoans and can say with confidence that it further confirms my view that such risk does exist especially given good character references and police record is a must. These case examples also reaffirms that even if we adopt the view as some case authorities seem to suggest, to enter a conviction but leave this to the statutory body in charge with such decisions (as with NZI here) to determine, there is still no guarantee that they will see past a conviction and consider the overall circumstances of the offending instead. Even if granted a character waiver, there is still no guarantee.
  4. Here, your offence occurred contemporaneously to the time of lodgement of your current visa application and the refusal of that visa on the basis of a conviction for an offence of this nature is real and significant. If it was some several years ago say for example 6 years, you might have stood a chance especially given the lapse of time since the last conviction. But here the risk is even greater given the close proximity of the time of the visa filing and this offence.
  5. Yet you are still young with aspirations and countless opportunities you must explore unabated. But there is no one else to blame here but yourself for your own “stupidity” excuse the language because that is exactly what happened here and even you yourself say so in your affidavit.
  6. So I accept that there will be severe and adverse ramifications on you. A conviction will be a permanent black mark to your name. Yet you are so passionate about taking your studies further and finding good employment in NZ so you may make your mom even more proud of you.

Are the consequences of a Conviction out of all Proportion to the gravity of the Offence?

  1. I answer this in the affirmative. Yes, it will be. As I said earlier I view the gravity of your offending to be on the lower end. Your degree of culpability is also low. You were careless. Also you were stopped at the very early stages of your arrival at the point of entry. Customs discovered the pipe and seized it. As I said before you never really got the chance to use pipe here in Samoa during your trip unlike other cases that have become before this Court and the Supreme Court.
  2. But due to your carelessness in not paying attention to the items you packed to bring on your trip, this has otherwise marred what could have been a wonderful experience for you given this is your first visit to Samoa. You had aimed to come here on holiday and enjoy it but it has turned out to be quite a terrible one. But you have only yourself to blame.
  3. In the wake of all this, it brings to the fore the importance of the role that our Customs Officers play at the point of entry or our borderline. I commend and applaud the crucial role they play and for being vigilant in performing their duties with due diligence to ensure that our borderlines are safe and secured. It goes without saying that early detection of potential crime (such as here and illicit drugs and so forth) at the entry check point is crucial. This is to ensure potential cross boarder crimes do not infiltrate our shores and prevent the likelihood of further offending leading to more criminal and social problems that neither our law enforcement nor our people need. The security, safety and protection of our people should always remain the number one goal. So it is a matter of public interest. So I acknowledge with thanks our Customs division.

Should the Court exercise its discretion under s69 to Discharge?

  1. Having assessed all material facts of your matter, I have decided to exercise the residual discretion under s69 SA to discharge you without conviction. Such discharge is deemed an acquittal.
  2. However, I am not just going to let you walk away with a pat on your back and say “Mr Robles have a safe trip back to New Zealand mate”. If I do that, I will be sending out the wrong message to members of the community as well as those potential tourists who will be travelling to our shores causing public uproar. The last thing I want is for the public to think that it is okay for anybody to come to our shores with unlawful utensils and be able to walk away with a discharge without conviction. I will be crucified by members of our community if such a decision was to be imposed without having due regard to the purposes and principles of sentencing set out under ss5 and 6 SA.
  3. The relevant ones include, general deterrence not only for yourself but others who might be tempted to test our laws by bringing unlawful utensils and think they can get away with it; promoting in you a sense of responsibility for your offending and I note you have resolved to do so; denouncing your conduct and protecting our community from any future occurrences of this nature.
  4. I tread here with caution least it be thought that a discharge without conviction could be easily dished out or our local residents charged with similar offences might regard inconsistency in the Courts’ approach. I am mindful of the message this decision will send out to members of our community especially given past decisions on similar charges of this nature. But I note the facts of the case laws relied upon by Prosecution and others are distinguished from your one. In those cases there were other charges as well either tied to possession of narcotics or firearm.[19] This is absent here.
  5. I remind all, there is a test to meet and unless you satisfy the Court of that test, please do not expect a discharge without conviction could be easily or automatically dished out. As our Courts have said on a number of occasions, each case will turn on its own peculiar facts.
  6. I can only pray Mr Robles that this will be a lesson for you that you will not repeat in your future travels.

Penalty

  1. You are Discharged without conviction but subject to the following:
  2. The sum of SAT$2000 must be paid to our Ministry by 10am this Friday, which is the 22nd of this month. You are to return to this Court at 10.30am the same date to provide proof of payment. If you turn up with the proof of payment (receipt), then I will make the final order to discharge you without conviction.
  3. But should you fail to appear and we find out from the records you have not paid, then I will issue a warrant of arrest against you and you will be remanded in custody until brought before me for re-sentencing. And I can tell you for sure now, that I will definitely be entertaining a conviction. So please bear in mind Mr Robles that it is so important that you pay this sum in full and be here this Friday.
  4. In the meantime, your travel document or your passport will remain in the custody of the Registrar until further orders from me as to its release on this Friday at 10.30am.
  5. I was thinking of deporting you but I have decided against it as it would not be in your favour given your pending visa application. I am certain you will leave at your own free will.

JUDGE A R VIANE PAPALII


[1] Chang v AG [2018] WSCA 3 at para 53.
[2] Police v Papalii [2011] WSSC 130 (7 November 2011).
[3] Police v Lauina [2017] WSDC 5 (12 May 2017).
[4] Police v Ropati [2018] WSDC 9 (11 May 2018).
[5] Supra n 1 at para 65.
[6] But note it was not always so given the confusion created by Blythe v R [2011] NZCA 190 at 11. Z v R has cleared this
[7] Z v R [2012] NZCA 599 also see DC v R [2013] NZCA 255 at 30-31
[8] See Lauina, supra n 3; P v Nelson Annandale [2017] WSDC 15; P v Lagaia & Otrs [2017] WSDC 23; P v Salele (Unreported decision delivered on 12/04/18) and P v Ropati, supra n 4.
[9]Supra n 10.
[10] Supr an 8.
[11] Supra n 4.
[12] Iosefa v Police HC Christchurch CIV -2005-409-64, 21 April 2005 at [34]; Also see Alshami v Police HC Auckland CRI – 2007- 404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI -2008-404-307, 27 May 2009 at [49].
[13] Also see DC v R supra n 16
[14] Adams on Criminal Law: Sentencing (Brookers: 2007)
[15] Gasson v N [2012] NZHC 2988 at paras 24 to 24; Police v M [2013] NZHC 1101 at paras 49 to 60 – 62. Also adopted in P v Ropati supra n 4.
[16] A5.45 ©(i) and (ii) of Immigration Operational Manual
[17] Supra n 8
[18] See for example NZ Police v Xu (DC Auckland -2009-004-026303, 6 July 2010); R v Foox [1999] NZCA 281; [2000] 1 NZLR 641; Mu v Police 24/10/03, CA 262/03; A (CA 747/10) v R [2011] NZCA 328; George v Police [2014] NZHC 1725; Jeon v Police [ 2014] NZHC 66; Han v Police [2012] NZHC 791. R v Hermard; HC Christchurch T30/03 11 April 2003.
[19] See for example P v Magalogo [2006] WSSC 18; P v Masame [2007] WSSC 92; P v Lafi [2008] WSSC 44; P v Webber [2016] WSSC 37; P v Tulua [2016] WSSC 123; P v Barlow [2017] WSSC1 63.

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