Police v Salele [2018] WSDC 14 (12 April 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Salele [2018] WSDC 14

Case name:	Police v Salele
Citation:	[2018] WSDC 14
Decision date:	12 April 2018
Parties:	POLICE (Informant) and VAIMAILA SALELE, female of Matautu-uta (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:	1. You are ordered to pay the following: a) Court costs in the sum of $400; b) Prosecution Costs in the sum of $100; and c) Probation Costs of $100. 2. You are to pay these fines/ costs really of $600 in total by 4pm today. As soon as I receive the receipt of proof of payment, you are discharged without conviction. 3. If for some reason it is not paid by 4pm today then next Monday, 16th your matter will be recalled before me and I will issue an alternative sentence. Note it is crucial you pay these costs by 4pm today.
Representation:	Ms I Atoa and Ms R Titi for Prosecution Ms D Roma for the Defendant
Catchwords:	causing actual bodily harm – with intent – armed with a dangerous weapon – discharge without conviction application – relationship dispute – infidelity – physical altercation – verbal altercation – first offender – pre-mediation – provocation
Words and phrases:
Legislation cited:	Crimes Act 2013 s119(1); Criminal Justice Act 1985 s19; Healthcare Professions Registration and Standards Act 2007 s18A; Medical Practitioner’s Act 2007 s10(1)(b); NZ Criminal Justice Act 1954 s42; NZ Sentencing Act 2002 ss106; 107; Police Offences Ordinance 1961 s25; Sentencing Act 2016 ss5; 6; 11(1)(a); 19(1)(b); 69; 70.
Cases cited:	Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; Blythe v R [2011] NZCA 190; Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009; DC v R [2013] NZCA 255; Fisheries Inspector v Turner [1978] 2 NZLR 233. Gasson v N [2012] NZHC 2988; Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005; Meredith v AG [2017] WSSC 48; Ministry of Social Development v Wirepa [2017] NZDC 21831; P v Afoa Tui Vaai (Unreported Sentencing Decision of Judge now Justice Clarke delivered on 30 November 2017); P v Amituanai [2017] WSSC 49; P v Annandale [2017] WSDC 15; P v Fepuleai [2015] WSSC 105; P v Foalaulima [2016] WSDC 32; P v Lagaaia & others [2017] WSDC 23; P v Lauina [2017] WSDC 5; Police v M [2013] NZHC 1101; P v Menefata [2016] WSFVC 7; P v Niko [2013] WSSC 65; P v Pale [2010] WSSC 122; P v Papalii & Moalele [2011] WSSC 132; P v Rimoni (Unreported sentencing decision of Judge now Justice Clarke delivered in District Court on 11 May 2016); Police v Roberts [1991] 1 NZLR 205, 210 per J Bisson; P v Soolefai Faalogo (unreported Sentencing Decision of Justice Nelson delivered on 5/03/15); P v Tulaga [2016] WSDC 22; P v Tualagi Anita Paul (Unreported Sentencing Decision of Judge Roma delivered on 7 November 2016); P v Viane [2016] WSDC 56; R v Appleby [2009] EWCA Crim 2693; R v Brown (A) [1993] UKHL 19; [1994] 1 AC 212 HL; R v Donovan [1934] 2 KB 498; R v Hughes [2008] NZCA 536 Roberts v Police [1989] NZHC 488; (1989) 5 CRNZ 34 (HC); Tupu v Police [2014] NZHC 743; Z v R [2012] NZCA 599.
Summary of decision:

THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

VAIMAILA SALELE, female of Matautu Uta
Defendant

Counsel: Ms I Atoa and Ms R Titi for Prosecution
Ms D Roma for the Defendant

Date: 12 April 2018

S E N T E N C E

The Charges

1. Vaimaila Salele (“Vaimaila”) you appear today for sentence on two charges. The first one states that on 4 November 2017, you caused actual bodily injury (“ABH”) with intent to Gardenia Betham of Siusega contrary to s119(1) Crimes Act 2013 (“Crimes Act”) which carries a penalty of a maximum of seven (7) years imprisonment. The second offence relates to your being armed on the same date with a dangerous object namely an “iron” for an unlawful purpose contrary to s25 Police Offences Ordinance 1961 which attracts a penalty of not more than 1 year imprisonment.

Plea and Pre-Sentence Appearances

2. You had originally entered not guilty pleas but this was vacated on 14/03/18. The matter was then set down on 22/03/18 for filing sentencing documents, namely the summary of Facts (“SOF”), Victim Impact Report (“VIR”) and Pre-sentence Report (“PSR”) and for sentence. On this date however, Ms Roma sought an adjournment informing that the defence disputed parts of the SOF and that she would be filing an application for a discharge without conviction. Prosecution consented to the adjournment but also informed that this would allow time for the parties to discuss issues defence raised. The matter was then adjourned to 5/04/18 for the parties to come to an agreement on the SOF. In the meantime Ms Roma was directed to file and serve the application for a discharge without conviction and affidavit in support by 3/04/18. This was received.
3. On 5/04/18, Ms Atoa for the Prosecution sought a final adjournment to sort out an agreed SOF with defence counsel. Ms Atoa indicated to the Court that there was a real possibility of the SOF being amended to reflect the facts the defence put forth. She also handed to the Court Prosecution’s comprehensive sentencing memorandum where I noted that the recommendation put forth was a conviction and starting time of at least 2 years imprisonment or alternatively a conviction, fine and reparation. Prosecution was questioned further about the basis of the reparation recommendation where Ms Atoa responded there was no actual basis and that it was just submitted for the Court to consider.
4. But contrary to Ms Atoa’s assurances above, Ms Titi today appears for the Prosecution where she informed that there are not really any facts in the SOF that are disputed rather it is more the concern that a balanced SOF be put forth. Ms Titi expressed the view that the circumstances of the offending in the PSR goes to explaining the reasons for the offending as a mitigating factor. Ms Roma confirmed the telephonic communication she had with Ms Titi about this and accepted the SOF. But she also refreshed her request for your version in the PSR to be taken into account.
5. As a sentencing Judge, it is crucial that a balanced SOF be put forth and the importance of having a balanced one in my respectful view goes to the right of a litigant to be heard on his or her version up to the stage of sentencing. Furthermore, Prosecution has a duty to place before the Court all relevant facts for and against its case so the Court is well informed of all circumstances of the offending before sentencing. So as is the practice, I will take into account Vaimaila your version of events in the PSR also echoed in defence counsel’s submission to give a complete picture of what occurred bearing in mind s19 (1) (b)Sentencing Act 2016 (“SA”) dealing with a PSR and its contents including inter alia the factors contributing to the offence.

Factual Background

6. According to the SOF, on the night in question (4/11/17), the victim was sleeping at her boyfriend’s house at Moamoa. The boyfriend as clarified in your PSR Vaimaila and defence counsel’s submission, is really your de- facto partner (“Your Partner”) from whom you have three dependent children and another one on the way. The reference to the “boyfriend’s house at Moamoa” where the victim was sleeping is really your home of residence with your partner where you raise your children. Although the house belongs to your partner’s parents, it is still in every sense of the word the place you call home. These material facts are not in the SOF and only clarified in the PSR. I regard this part of the SOF misleading. Prosecution as I said earlier should disclose the true state of the facts but not premise the SOF solely on the victim’s statement as seen here. Even after receiving the PSR there was no move to amend the SOF to reflect this.
7. According to the SOF, sometime after midnight, the victim awoke and saw you Vaimaila standing at the end of the bed where she was sleeping with your partner. Again the SOF omits to say that this is the same bed you share with your partner. It is said your partner had awoken and questioned you Vaimaila as to what you were doing there. According to the facts before me, on either version, an altercation took place. You ended up in a physical scuffle with the victim and nasty verbal exchanges were hurled back and forth. Your partner intervened and took you away from the victim. The scuffle led to your work uniform being torn. Again this is not mentioned in the SOF.
8. Your partner took the victim out of your bedroom and whilst doing this she continued to mouth off insulting words. No doubt you did the same. Again this is not in the SOF. When the victim was taken out of your room, she stood by the dining table where according to the SOF you hit her with the iron striking the left side of her face. But according to your version in the PSR, you were in the room changing your work uniform when you overheard the victim continue to lash out verbally. You grabbed the iron that was next to you came out and threw it at the victim thereby hitting her as described. Both counsel were questioned about this as it goes to the core of the ABH charge. Ms Roma confirmed your version was the correct one. Prosecution did not raise any issues with this nor addressed it during their oral submissions. I will address this later.
9. It is further stated in the SOF that in the kitchen you grabbed a knife and said to the complainant that you are going to kill her. There is no mention of this in your PSR but your counsel’s written submission explained that the victim had continued to utter insulting and rude remarks including calling you a psychotic bitch leading to your grabbing the knife holding it up and saying words to the effect that if you were a psychotic bitch you could have killed her. You then disposed of the knife and walked out. These facts should have been included in your affidavit. According to the SOF your partner took the victim to the car, but you ran out and hit the windows of the car. I will come to your partner’s role in all this later. For now, I note that none of these formed the basis of any charges. But what it does illustrate is there was much emotional upheaval and tension was understandably high.
10. The SOF does not tell me why you went back to your home at Moamoa. But your PSR fills in these missing pieces also reiterated by your counsel in your submission in accordance with your instructions. According to your version, you were supposed to work the night shift from 12am at the TTM hospital. However, during the day your partner rang and informed you that he had a party to attend with the boys. As you were working that night, you packed up your kids and took them to Matautu to your parents’ home so they may look after them.
11. You later realised as you were getting ready for work that night that you had forgotten your phone charger at the Moamoa home. You decided to return there to fetch it but when you arrived you saw two vehicles in front of the house. You went inside where you witnessed the victim in bed with your partner. You told probation you tried to compose yourself when confronted with this scene. You lashed out at your partner but what aggravated your anger was the reaction of the victim leading to the altercation.
12. According to the facts, the victim went with your partner to the TTM emergency unit for treatment. You were on duty and understandably she strongly objected to you treating her so Dr Adams saw her instead. Upon examination she was fully conscious and responsive to commands. The injury she sustained as noted in the medical report was a puncture wound to the pre-auricular area of her left ear about 1x1 cm with minimal bleeding. The wound was sutured under local anaesthesia. An x-ray was also done but unremarkable. The victim was discharged on oral antibiotics and pain relief and advised to return within a week’s time to remove the stitches.

Accused Personal Background

13. Your personal background is canvassed in your PSR. You are 28 years old and the third of four siblings. You have three children with your partner but also carrying the fourth one. You confirmed in Court that you are now separated from your partner due to this incident. You were raised in a stable family environment where your family’s main source of income derived from your mum’s cake shop and your Dad’s employment as a lecturer at the National University (NUS).
14. You also have a high level of education commencing your schooling at St Mary’s Primary School, then Robert Louis Secondary and finally University Preparatory Year where you were awarded a scholarship to undertake medical studies at the Fiji School of Medicine. This was successfully completed in 2013. You then returned to Samoa where you commenced employment as an emergency registrar in the TTM emergency unit and you continue to do so to date.

The Victim

15. According to the VIR, the victim is a 23-year-old female from the village of Siusega and she works at Manino Waters. The VIR informs that she was traumatised by the incident for the first month and had issues sleeping at night. She confirmed that you apologised to her by text then in person and she wishes for the charges to be withdrawn.
16. There is mention in the VIR of a previous altercation. Your counsel was questioned asked about this and she informs you deny any involvement in the alleged incident. I will not place any weight on this allegation there being no charges laid and the pertinent facts unclear and irrelevant for these purposes.

Aggravating and Mitigating Factors

17. To avoid repetition, I have decided to deal with this under my assessment of the gravity of the offence.

Submission

18. Prosecution recommended the entry of a conviction with a starting imprisonment term of two years or alternatively a conviction, monetary fine and reparation. You have asked the Court through your counsel to exercise its discretion in favour of a discharge without conviction under sections 69 and 70 Sentencing Act 2016 (“SA”). Similarly, Probation also recommends a discharge without conviction. Prosecution opposes the application arguing that a conviction is warranted. I will now address the application for a discharge.

Law on Discharge without Conviction

19. Section 11(1)(a) SA provides that where an accused has pleaded guilty, then before entering a conviction and imposing sentence, the Court must consider whether the accused would be more appropriately dealt with by a discharge without conviction under ss69 and 70. So it is mandatory for any Court under this provision to consider whether an accused should be discharge without conviction.
20. The law on a discharge without conviction is well established both by legislative provision as well as case law dictating how to approach it. I recently canvassed the approach in P v Lauina^[1]and so have my other colleagues.^[2]
21. As we all know, a discharge without conviction was previously dealt with under s104 of the now obsolete Criminal Procedure Act 1972. However, with the enactment of the new SA, it is now governed by ss69 & 70 SA which mirrors ss106 & 107 NZ Sentencing Act 2002. Section 69(1) SA gives a Court discretion to discharge without conviction an accused found guilty of; or who has pleaded guilty to an offence unless a court is required to impose a minimum sentence. A Court may also order the payment for costs.^[3] A discharge without conviction is deemed an acquittal.^[4]
22. But before the discretion in s69 is exercised, a Court must firstly be satisfied of the test contained in s70 SA. Section 70SA is therefore a precondition or can be likened to a gateway that any application for a discharge without conviction must pass first before it is granted.^[5] So it is really a two staged approach.
23. Section 70 provides as follows:

70. Guidance for discharge without conviction – the Court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”

24. It is well established in NZ case authorities that the mandatory requirements that must be established under s107 of their Sentencing Act 2002 involves three steps. These are:
    1. Step 1 - the gravity of the offence;
    2. Step 2 - the direct and indirect consequences of a conviction; and
    100. Step 3 – whether those consequences are out of all proportion to the gravity of the offence.
25. As it is well known to all, we adopted the three step approach above in P v Papalii and Moalele^[6]and our Courts have been following it in a number of cases.^[7] In Lauina,^[8] I conducted a comparative analysis of NZ authorities from which the learned CJ Sapolu in P v Papalii and Moalele adopted the three step approach as derived from the NZ Court of Appeal case of Fisheries Inspector v. Turner^[9] and confirmed in subsequent cases such as Police v Roberts,^[10] R v Hughes,^[11] Z v R,^[12]and DC v R^[13]. I concluded that the enactment of ss 69 and 70 SA did not create a new threshold test for the exercise of the discretion to discharge an accused without conviction.The above three step approach is known as the disproportionality test and is effectively a jurisdictional test.
26. The application of the NZ s107 provision and our s70 equivalent was further discussed in Z v R where it stated.^[14]

“[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.”

27. I adopted the Z v R approach above to the three step test in Lauina, Annadale and Lagaia and I do so here as well. I will start with the gravity of the offence.

Gravity of the Offence

28. As Z v R and other case authorities require, ^[15] in assessing the gravity of the offence I must consider all circumstances including the aggravating and mitigating factors relating to the offending, you Vaimaila as an offender and any other relevant factor that might affect the Court’s assessment of your overall culpability. Prosecution argue the gravity is on the high end. Your counsel contends it is on the lower end. This is my analysis.
29. Of the two charges you face the more severe and also the leading one in terms of penalty is causing ABH with intent. The armed with an object is a minor offence. I remind myself however that the severity of the penalty is not the sole determining factor for assessing the gravity of the offending or your level of culpability Vaimaila.^[16]
30. The aggravating features of your offending include the impact on the victim such as the physical injuries sustained, psychological and emotional harm suffered. The use of an object or iron is an aggravating factor. Here there was actual violence exhibited. There are no aggravating factors personal to you as this is your first criminal offence.
31. In terms of the main injury forming the charge as described above, I remind myself of the different types of wounds that would properly attract charges for assault, ABH and GBH as set out by CJ Sapolu in P v Niko^[17] where his Honour at paragraph 12 provided a helpful guidance to Samoan prosecutors when deciding whether to charge someone with quoting from R v Appleby^[18]:

“In what may provide helpful guidance to the Samoan prosecutors when deciding whether to prefer a charge of actual bodily harm given a particular injury, I refer to R v Appleby [2009] EWCA Crim 2693, para 2, in which Lord Chief Justice Judge, in delivering the judgment of the English Court of Criminal Appeal, said:

“The Crown Prosecution Service Charging Standard advises that minor injuries justify a charge of common assault, rather than assault occasioning actual bodily harm. They include grazes, scratches, abrasion, minor bruising and swellings, superficial cuts and reddening of the skin. Unlawful violence taking this relatively minor form can result in death and a conviction for manslaughter. The same Charging Standard indentifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm. They include loss or breaking of a tooth or teeth, extensive multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries”.

32. Here the injury required stitches. However, considering the circumstances of the offending and wound itself perhaps the proper charge should have been one brought under s119(2) CA as opposed to subsection (1). Be that as it may, the injury in my view was minor. Though there was some discomfort to the victim requiring medical attention, it was certainly not life threatening or permanent. It did not require the victim be admitted in hospital overnight or for a couple of days as was the case in P v Soolefai Faalogo.^[19] The x-ray according to the medical report was unremarkable and the victim was fully conscious and responsive upon examination.
33. Prosecution argue that the injury is serious and that you had aimed for the head which is a vulnerable part of the body. But there is also repetitive reference to your using the iron to strike the victim’s left side of her face. So I have here two conflicting submissions by the Prosecution. But the photos of the victim on file show the location of the wound confirmed by the medical report. It was to the pre auricular area of the left ear. If the victim was struck on the left side with the iron, given its size, weight and depending on the force, surely she would have suffered more than just the injury you were charged with here. But there is no evidence to that effect. I have also seen photos of a broken iron and from that I am entitled to infer that perhaps your version that you threw the iron at the victim rather than striking her is more plausible.
34. Prosecution in their submission argue there was premeditation when you arrived Vaimaila and stood in the room observing the scene before you. But I reject this. You had gone home to get your charger only to find the victim there in the wrong bed, at the wrong place and wrong time. You had just witnessed your partner the father of your children in bed with the victim. I do not see how this could possibly amount to premeditation. If anything your reaction was one of utter shock at the scene that confronted you.
35. I do not accept the Prosecution’s, proposition either that the victim was vulnerable. If this were true she would not have retaliated. But as seen from the material before me she lashed out verbally and engaged in a physical scuffle with you. The SOF however downplayed her role in all this. In my view, you were caught in an extremely awkward situation one only watches on the episodes of “Devious Maids” and Philippino soap operas screening on TV1. But this unfortunately became your reality.
36. I also reject the Prosecution’s submission that this was an unprovoked attack. I am baffled at this suggestion given the material before me and Prosecution’s acceptance of the circumstances of the offending in your PSR. There was provocation by both your partner the victim as third party in this affair. The degree of provocation exhibited in my view was significantly high. It led to your loss of self-control. This was not a pre-emptive strike or fatal attack scenario. Your response to this situation was not ideal but none of us here would know what it really feels like until we step in your shoes. You were not going to just stand there and offer the victim coffee or another pillow so she is more comfortable in your bed. In my view, your reaction was reasonable given the provocation.
37. The testimonials submitted in your favour tell of a calm, collected young woman. But here, you were overborne with sudden temporary loss of self-control. You had gone home with all good intention unwary of the hurtful scene looming at your doorsteps of your partner’s infidelity and betrayal. This was the triggering event of what ensued. Your reaction was impulsive. I note there was no interval or time lapse between the provocation and your loss of self-control. It was instantaneous.
38. I have no doubt that you felt vexed, hurt, betrayed, humiliated and overborne with anger. This was compounded by your partner’s reaction. I infer from the facts before me, that he was not sorry at all. Instead of siding with you and trying to stem the pain, he stuck by the victim. He had two women in tow and the Judas caught in the middle of this love triangle. He had lied to you about going out to party. You fell for his manipulations by accommodating his request and took your kids to your parent’s house for the night as you had to work. Instead of partying with his friends he had a private one at home with his interloper the victim where you found them in the bed you normally share. This and ensuing events were the qualifying trigger of your temper and loss of self-control. The high degree of provocation here mitigates the offence.
39. The victim’s reaction is equally to blame. She could have handled the situation with some sense of decency and maturity. She could have apologised, taken flight and retreat without putting up a fuss or fight knowing very well that you had caught her and your partner red handed. But she did the complete opposite by lashing out and retaliating. Had she composed herself, the situation could have been averted. In that sense she aggravated the situation by her rather immature, tormenting and provoking conduct. In my view, the victim is equally culpable in the overall context of the altercation. I am surprised that charges were not laid against her. Her contribution to the altercation is a material mitigating factor I consider relevant to reduce the overall gravity of the offence.
40. In terms of other mitigating factors, whilst I accept the victim suffered harm and injury, you are equally a victim as you were similarly subjected to the violence that immediately ensued physically, verbally and emotionally.
41. As a result of this incident you are now separated from your partner but at the same time carrying his fourth child. So you now have a broken family and raising your children on your own whilst at the same time working full time to support your family. No doubt you will continue to live with the trauma and pain from this incident. Your children will equally suffer. Your life has taken a complete overhaul since this incident. You are going through some tough times. I saw you crying in that dock when your matter was last called and it indicates the tremendous emotional burden you are carrying. I take into account as mitigating factor the hardship you have undergone as a consequence of this incident.
42. You changed your plea to guilty indicating your willingness to accept responsibility and genuine remorse. Despite the pain and hurt from this whole incident, you have done what you could to repair and remedy the harm to the victim by apologising via text messaging and later in person. No doubt this must have been hard for you but it was an extreme act of humility on your part. According to the victim she has forgiven you and wish to withdraw the charges.
43. I must also take into account your personal circumstances. Testimonials submitted on your behalf speak volume of your unblemished character. The reference from your employment confirms you are the president of the emergency department and actively involved in continuous education for your division. Your role includes working long hours in the emergency unit where you are often left alone to manage it. You have played a big role in treating some of the mass causalities the hospital has encountered in your years of practice. You are passionate about your job and ensure your patients are well taken care of. You are held in high regard by your colleagues and deemed as a responsible young doctor who is full of energy with good work ethics and potential. You are admired for your persistent and enthusiastic personalities and seen as a non - violent person well known for your friendly, kind and loving qualities. At the end of the day you are a productive and contributing member of our community.
44. The reference from Reverend Nuuausala Siutaia of the Apia Protestant Church also portrays the same characteristics. He has known you for 15 years given your close friendship with his daughter. So it is fair to say you have a close relationship with him. He testifies to your good, calm, sociable and polite character. He too observed that this incident is uncharacteristic of you and that he and his wife are working in collaboration to console and counsel you during this difficult time. This incident in every sense of the word is out of character.
45. There is no doubt in my mind that as the victim had turned up to the hospital for treatment during your shift on the night of the incident and objected to your treating her (understandably) this incident quickly became public knowledge causing you distress and embarrassment at your work place. Added to this is your having have to appear in Court to answer these charges and standing in that dock for an accused such as yourself is always a humiliating and demeaning experience.
46. Having considered the above, and all relevant circumstances of the offending which was in every sense of the word a heat of the moment reaction, I form the view the gravity of the offending is on the low end of the scale.

Consequences of a conviction

47. As I said in Lauina, the threshold test for consequences that are to be taken into account in the operation of the proportionality test was explained in Iosefa v New Zealand Police:^[20] as follows:

“[34] ... it is not necessary for the Court to be satisfied that the identified direct and indirect coences would inevitably or p or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.”

48. The judicial assessment of the direct and indirect consequences need not be determined to any legal standard of proof.^[21] The sentencing judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur. The test is simply the Court must be satisfied there is a real and appreciable risk of such consequence occurring. NZ case authorities on this subject shows that there is no onus on the offender to establish that the proportionality test has been met. In most cases those seeking a discharge without conviction provided reliable material to the Court informing of the consequences. Judges may also take judicial notice of facts and rely on their own direct knowledge.^[22] The NZ approach makes good sense. But there must also be room for flexibility given s11 SA, our own cultural context and individual circumstances of offending ranging from minor to serious ones.
49. Applying the above to your case, in terms of this aspect you have canvassed this to some extent in your affidavit also echoed in your PSR and counsel’s submission. I know for a fact studying medicine or to be a doctor is one of the toughest academic disciplines to undertake. But you persevered years of studies to get to where you are. You chose to return to Samoa to give back to the community through your service as a doctor.
50. Your affidavit states that you have applied for a scholarship to the Samoa Ministry of Foreign Affairs (“MFAT”) to undertake a master’s degree. There is an email from the NZ Ministry of Foreign Affairs and Trade confirming your enquiry about this. You fear that a conviction would mar your good name and sabotage an opportunity for you to qualify for a scholarship as you would be required to obtain a Police record. Although there is no conclusive reply from MFAT, I accept what you said at paragraph 4 of your affidavit that given the limited number of senior and specialized doctors working at our public hospitals, there is a good possibility your application will be successful. As a former recipient of our government scholarship under MFAT with young relatives who also recently received scholarships, I know for a fact that a clean police record is a requirement. So this is not just some fanciful speculation. There is a real and appreciable risk that your application for a scholarship will be declined.
51. You also depose at paragraph 6 of your Affidavit that your employment sometimes require that you accompany patients overseas for treatment. You are concerned a conviction may inhibit your travel. I appreciate this is particularly hard for a Samoan citizen as a visa is required before entry into a particular country. There have been cases before this Court such as P v Rimoni^[23] and P v Foalaulima^[24] where travel impediment was put forth as a hardout of all proportion to the gravity of the offending. But But this was rejected by the then Judge Clarke stating that potential impediment for travel to a foreign country is a universal problem. But I am also aware of other cases where travel was considered a hindrance and discharge without conviction granted. These are P v Fepuleai^[25], Police v Tualagi Paul,^[26] P v Afoa Tui Vaai,^[27] P v Annandale^[28] and to some extent P v Viane.[29] I accI accept traveldimpediment is a real and appreciable risk.
52. I had specificallycally asked you if there will be any reperon on your employment as a as a doctor if a conviction is entered. You replied that you will be terminated if that was the case. I consulted the Healthcare Professions Registration and Standards Act 2007 and take judicial notice of the following provision relating to the automatic revocation of registration of a healthcare profession:

“18A. Automatic revocation of registration- (1) The registration of a healthcare professional is automatically revoked if the healthcare professional:

(a) is convicted of a serious crime; or

(b) bcomes subject to an order of medical custody under the Mental Health Act 2007.

(2) The revocation is effective from the date of the order, convictioof final determination of any appeal on conviction.

>

(3) In this section, “serious crime” means an offence that prescribes a penalty for imprisonment of at least five (5) years.

53. A healthcare profession is defined in s2 as including a medical practitioner such as yourself. The above provision confirms the automatic revocation of your registration as a healthcare professional upon the entry of a conviction for a serious crime. Subsection (3) exhaustively defines a serious crime as meaning any offence with a prescribed penalty of at least 5 years’ imprisonment. This offence carries a maximum penalty of 7 years’ imprisonment. So this provision applies to you.
54. Like the legal profession, I accept your profession as a medical practitioner requires that you have good character and reputation and with it, a clean Police record. Section 10 (1) (b) Medical Practitioner’s Act 2007 confirms this and other qualifications a medical practitioner must have to qualify for registration under that Act. The good character of a medical practitioner is particularly crucial given the type of work you are engaged in involving members of the public trusting you and placing their lives in your hands.
55. I am of the firm view; a conviction will definitely ruin your career or your profession as a medical practitioner. In fact, it will be an absolute bar to your continuing to practice as a medical practitioner. This is a direct consequence of a conviction being entered in your name. As Wylie J stated in Roberts v Police,^[30] “if a conviction is going to result in an absolute bar to the offender gaining entry to some profession or career, then it may well be appropriate to ameliorate that consequence in an appropriate case by declining to enter a conviction”
56. The Courts have recognised that a criminal conviction is a black mark on an accused’s record and there will always be severe consequences that follows especially for someone with no previous history. I am well aware that people are often asked to disclose their criminal convictions for instance either in an application for visa or job opportunity. Such disclosure can result in serious ramifications such that it may count against a person with the conviction competing for a position against a person without one.
57. Here, I accept that there is a real and appreciable risk a conviction will mar your good name, jeopardise the prospects of future educational and travel opportunities and most importantly, it will result in the instant revocation of your registration as a medical practitioner thereby ending your career. But you are only 28 years old with 3 dependent children and another on the way to support. As you can tell from this decision, I hold a more empathetic view of your situation. You are trying your best to move on with your life. Despite all this, you are determined to take your tertiary education to the next level. Your job as a doctor is demanding requiring working long hours. It would be unfair to kill any future prospects you have in mind especially your medical career given the overall circumstances of your offending.

Are the consequences of a Conviction out of proportion to the Gravity of the Offending?

58. I answer this in the affirmative. The consequences of a conviction will be out of all proportion to the gravity of the offence. In other words, you have passed the three step test under s70. I will now turn to consider the final stage in s69 of whether I should discharge you without conviction.

Should the Court discharge you without conviction?

59. At the outset, I am of the view that the residual discretion under s70 should be exercised to discharge you without conviction. In fact it is very rare that a discharge is not granted after the three step has been met.^[31] In forming this view, I am guided by the principle in Turner^[32] where Justice Richardson had this to say:

“In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42. (emphasis added)

60. Although the above principle is in regards to the repealed s42 NZ Criminal Justice Act 1954, later replaced by s19 Criminal Justice Act 1985 and now forming ss106 and 107 NZ Sentencing Act 2002, it still applies today and adopted by other learned Justices such as CJ Sapolu in Papalii,^[33] Justice Vaai in P v Pale^[34] and Fepuleai^[35] and Justice Tuatagaloa in Meredith v AG^[36] and Justice Tuala - Warren in Amituanai. A conviction as I said above will definitely have an ongoing impact on your career, pocket, and reputation.
61. I am further guided by previous decisions of this Court and the Supreme Court. For instance, in the matter of Fepuleai, the accused there was charged with synonymous charges as here of actual bodily harm and armed with a dangerous weapon. The accused had used a pipe to strike the right parietal area of the victim thereby inflicting a 2 centimetre wide and 1 centimetre deep injury requiring 2 stitches to suture it. The accused denied the charge and the matter proceeded to trial where both charges were confirmed. Justice Vaai in sentencing the accused considered travel as an impediment and said that a conviction to the accused name would hinder and complicate her wishes to travel to see her children and grandchildren who reside overseas. The accused was discharged without conviction but ordered to pay prosecution costs in the sum of $1000.
62. Another comparative case is P v Tualagi Paul.^[37] There the accused was originally charged with ABH but it was reduced to common assault and the accused pleaded guilty to this. The incident there took place at a local nightclub where the accused hit the victim’s head with the heel of her high heel. The victim instantly blacked out and was rushed to the TTM emergency unit. She received 6 stitches. The offending there was far more severe yet Prosecution reduced the charge. The accused was discharged without conviction.
63. In sentencing you, I remind myself of the sentencing purposes and principles under ss5 and 6 SA. I note NZ still follow the approach in Blythe v R^[38] where the purpose and principles of sentencing are considered under their NZ s106 if a Court is satisfied of the test under their section 107.^[39] It makes sense we follow suit and I adopted this approach in other cases.
64. The principles I have in mind is denouncement, deterrence and holding you accountable. Subjective deterrence is not a concern for me as I know this is a one off incident that will not recur. You have learnt a hard lesson from this matter and this in and of itself is enough to deter you. I am sure your community involvement and previous good character will also act favourably to reduce the possibility of reoffending.
65. But I want to make clear Vaimaila, that I am lenient and merciful to you today because of the overall circumstances of your offending. But this is not a blanket excuse for any doctor or lawyer or any other profession to think they can appear in Court and get off with a discharge. My analysis here applies to your individual case and distinct circumstances. It is not a blanket excuse for all cases.
66. As I said above, dyou have been through a lot and trying your best to move on. Only time will heal. I wish you all the best.

Penalty

67. You are ordered to pay the following:
    • a) Court costs in the sum of $400;
    • b) Prosecution Costs in the sum of $100; and
    • c) Probation Costs of $100.
68. You are to pay these fines/ costs really of $600 in total by 4pm today. As soon as I receive the receipt of proof of payment, you are discharged without conviction.
69. If for some reason it is not paid by 4pm today then next Monday, 16^th your matter will be recalled before me and I will issue an alternative sentence. Note it is crucial you pay these costs by 4pm today.
    

JUDGE ALALATOA ROSELLA VIANE PAPALII

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^[1]P v Lauina [2017] WSDC 5; also see Meredith v AG [2017] WSSC 48 and P v Amituanai [2017] WSSC 49
^[2] See P v Meredith and P v Amituanai, Ibid
^[3] See s69 (3) (a) SA
^[4] See s69 (2) SA
^[5] See R v Hughes [2008] NZCA 536; and Ministry of Social Development v Wirepa [2017] NZDC 21831

^[6]P v Papalii & Moalele [2011] WSSC 132
^[7] See cases listed above n 1 as well as P v Tulaga [2016] WSDC 22; P v Annandale [2017] WSDC 15; P v Lagaaia & others [2017] WSDC 23; P v Menefata [2016] WSFCC 7
^[8]Above n 1
^[9]Fisheries Inspector v Turner [1978] 2 NZLR 233.
^[10]Police v Roberts [1991] 1 NZLR 205, 210 per J Bisson
^[11]R v Hughes [2008] NZCA 546, para 16
^[12] Z v R [2012] NZCA 599
^[13]DC v R [2013] NZCA 255 at 30-31
^[14]Above n 12
^[15]Hughes, DC v R above n 13, and Z v R above n 12 @ 27
^[16]Tupu v Police [2014] NZHC 743
^[17]P v Niko [2013] WSSC 65; Cj Sapolu in that case accepted this definition in Archbold derived from R v Donovan [1934] 2 KB 498, 25 Cr App R1, CCA cited with approval by Lords Templeman and Jauncey in R v Brown (A) [1993] UKHL 19; [1994] 1 AC 212 HL at pp 230 and 242.
^[18]R v Appleby [2009] EWCA Crim 2693
^[19]P v Soolefai Faalogo (unreported Sentencing Decision of Justice Nelson delivered on 5/03/15)
^[20]Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; also see Alshamsi 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].
^[21]See DC v R above n 13
^[22]Gasson v N [2012] NZHC 2988 at [23] – [24]; Police v M [ 2013] NZHC 1101 at [49] and [60] – [62].
^[23]P v Rimoni (Unreported sentencing decision of Judge now Justice Clarke delivered in District Court on 11 May 2016)
^[24] P v Foalaulima [2016] WSDC 32
^[25] P v Fepuleai [2015] WSSC 105
^[26]P v Tualagi Anita Paul (Unreported Sentencing Decision of Judge Roma delivered on 7 November 2016)
^[27]P v Afoa Tui Vaa i(Unreported Sentencing Decision of Judge now Justice Clarke delivered on 30 November 2017)
^[28]P v Annandale [2017] WSDC 15
^[29]P v Viane [2016] WSDC 56
^[30] Roberts v Police [1989] NZHC 488; (1989) 5 CRNZ 34 (HC at 36 -37)
^[31] See Z v R above n 12 and Blythe v R [2011] NZCA 190
^[32] Above n 9
^[33] Above n 6
^[34] P v Pale [2010] WSSC 122
^[35] Above n 25
^[36] Meredith v AG n 1
^[37] P v Tualagi Paul (Unreported Sentencing Decision of J Roma delivered on 7/11/16)
^[38] Blythe v R [2011] NZCA 190
^[39] See Z v R, above n 12 and DC v R above n 13