Police v Tupou [2018] WSDC 17 (22 June 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Tupou [2018] WSDC 17

Case name:	Police v Tupou
Citation:	[2018] WSDC 17
Decision date:	22 June 2018
Parties:	POLICE (Informant) and ALATASI TUPOU, male of Vaipuna (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 ordered to pay the following: a) Court costs in the sum of $500; and b) Prosecution Costs in the sum of $100. You are to pay these costs totaling $600,00 by 10am 29/06/18. Your matter will be recalled before me on the same date at 10.30am for you to appear and produce the proof of payment. Upon receipt, I will discharge you without conviction. A discharge without conviction is an acquittal under s69 (2) SA. Note however that if for some reason you fail to comply, then a warrant of arrest will be issued; you will be remanded in custody until brought before me for an alternative sentence. The moral of all this is, pay the costs by the due date to avoid any further repercussions. Addendum: Tupou paid on 22/06/18 the full costs of $600 as ordered. He was discharged without conviction and his matter was not recalled on 29/06/18.
Representation:	Senior Sergeant Solomona Natia for Prosecution Mr D Kerslake for the Defendant
Catchwords:	unlicensed driver – discharge without conviction – driving under the influence – remorseful – village penalty imposed – professional rugby player – early guilty plea – fined – non-custodial
Words and phrases:	previous convictions of different nature – no previous traffic offences – receiving pastoral counselling (rehabilitation)
Legislation cited:	Crimes Act 2013, s. 119(2) NZ Sentencing Act 2002 s. 11(1)(c); 106; 107 Road Traffic (Breathalyser) Amendment Act 2009 s. 40(1) Road Traffic Ordinance 1960, ss. 27(1); 72A Sentencing Act 2016 ss. 7; 8; 11(1)(a); 17(2)(a) 69; 69(1); 6992); 70
Cases cited:	Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; Aylwin v Police [2008] NZSC 113; Chang v AG [2018] WSCA 3; Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009; DC v R [2013] NZCA 255; Gasson v N [2012] NZHC 2988; Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005; Lechner v Police [2013] NZHC 1166; Meredith v AG [2017] WSSC 48; Ministry of Social Development v Wirepa [2017] NZDC 21831; Pale v Police [2010] WSSC 122; P v Amituanai [2017] WSSC 49; P v Annandale [2017] WSDC 15; P v Patrick Faapale (Unreported Sentencing Decision of J Viane Papalii delivered on 13/10/17); P v Fepuleai [2015] WSSC 105; P v Foalaulima [2016] WSDC 32; P v Lauina [2017] WSDC 5; Police v M [ 2013] NZHC 1101; P v Papalii & Moalele [2011] WSSC 132; P v Tualagi Anita Paul (Unreported Sentencing Decision of Judge Roma delivered on 7 November 2016); P v Rimoni (Unreported sentencing decision of Judge now Justice Clarke delivered in District Court on 11 May 2016); P v Robles [2018] WSDC 10; P v Ropati [2018] WSDC 9; P v Salele [2018] WSDC 14; P v Siliva, Filisi and Asomua (Unreported Sentencing Decision of J Viane Papalii handed down on 23/04/18; P v Afoa Tui Vaai (Unreported Sentencing Decision of Judge now Justice Clarke delivered on 30 November 2017); P v Viane [2016] WSDC 56; R v Hughes [2008] NZCA 536; 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:

ALATASI TUPOU male of Vaipuna
Defendant

Counsel: Senior Sergeant Solomona Natia for Prosecution
Mr D Kerslake for the Defendant

Date: 22 June 2018

S E N T E N C E

The Charges

1. Alatasi Tupou (“Tupou”) you appear for sentence having pleaded guilty to two charges. These are that on 26 May 2018 at Ifiifi Street in Apia, you drove a Toyota Noah vehicle registered number 30203 whilst the level of alcohol in your breath was 72 micrograms over the legal limit of 40 micrograms contrary to s40(1) Road Traffic (Breathalyser) Amendment Act 2009. At the same time, you did not have a valid driver’s licence; an offence under ss27(1) and 72A Road Traffic Ordinance 1960.
2. The charge of driving under the influence (“DUI”) attracts a maximum penalty of a term of imprisonment of 5 years or a fine of $5000 and the unlicensed driver a maximum fine of two (2) penalty units; the equivalent of $200.

Preliminaries

3. When the matter was called earlier, Prosecution sought an adjournment to consider the application to discharge. Defence strongly objected and indicated their application was served on Prosecution two days ago thereby giving them some time to consider it. They reiterated the urgency of the application given the Samoa Rugby Union (“SRU”) wanted to know the ruling of this Court on your fate as it is relevant to their decision as to whether you can play at the July tournament in Vegas in two weeks’ time. Senior Natia sought to stand down the matter for half an hour whilst he returns to the office to seek instructions.
4. I accepted the urgency of the application and stood down the matter until 2pm to allow Prosecution some time to consider the application and provide a previous conviction record (“PC”) to substantiate the last paragraph of the SOF. Senior Natia informed that a different Prosecutor was handling the file but that 2pm would give him sufficient time to obtain instructions and address the Court.

Offence

5. According to the Summary of facts (“SOF”), at around 11.30pm Police stopped the vehicle you were driving at their routine check point in front of the Apia Police post on Ifiifi Street. You were required to undergo a breathalyser test which recorded a reading of 81 micrograms. It was further discovered that whilst driving the vehicle, you did not have a valid driver’s licence. An evidential test was carried out soon after where your reading recorded 72 micrograms. You were then held in custody overnight and charged with these offences.
6. The background to your offending is canvassed in your affidavit and Pre-Sentence Report (PSR”). It states you were drinking at home then went to pick up your wife from the Marina at Matautu -tai. After you picked her up you headed into town to buy some food but came across the police check point in front of the Police station. Police on duty had asked you if you had been drinking and you replied ‘yes” then you were told to proceed to the police station where the screening and evidential tests were undertaken.
7. The SOF at paragraphs 2, 3 and 4 states that prior to the Police check, another car had driven past yours and the driver saw what seemed to be a fight in your car. She then drove direct to the Apia post to report the alleged incident. Defence objected to this saying it is irrelevant to the charges you face and that you were not charged with an offence arising from what was alleged. Prosecution insisted these facts remain as it goes to the gravity of the offence. The argument from Prosecution seemed to be that had it not been for the witness reporting the incident to Police, they would not have stopped your vehicle.
8. This however, does not make much sense as according to your affidavit and what you told Probation, you were stopped at a routine Police check in front of the Apia Police post which is only a short distance from the Marina where you picked up your wife. Also you were heading that direction anyway to get some food. Prosecution acceded this point. For completion however, even if the person did report what she saw immediately, then I find it implausible that such complaint would have been speedily expedited given your car was following directly behind the vehicle of the person said to have reported the alleged incident. It is more plausible than not to infer that whilst the person was in the process of laying the complaint, Police already stopped your car.
9. This is not the sort of situation where, the complainant reported the incident to Police and they immediately dispatched a team to chase after you. No. As accepted by Prosecution, you drove right behind the vehicle of the complainant. You got stopped in front of the Apia Police Station at a routine check. In my view it would be generally unfair for me to take this into account when there is no charge so I can explicitly take those facts into account. If anything the inclusion of the facts in my view is to legitimise the allegation by the complainant widely publicised on social media and other outlets. This is wrong. This decision will not contribute to the already dramatized and sensationalised version of your offending circulating around. My focus is on the charge before me and its relevant circumstances.
10. In any event, as I explained, this makes little difference to my assessment of the facts given the offence is a strict liability one. Regardless what might have transpired earlier, the fact of the matter is there are no related charges of that nature in this Court for me to give any weight to those parts of the SOF. For the purposes of this sentencing, the relevant material facts are those in paragraphs 5 onwards of the SOF.
11. For completion however, in terms of s17 (2) (a) Sentencing Act 2016 (“SA”), even if I find that such a fact does exist, it would be peripheral only and I will not place weight on it given what I said above. With that indication, Defence decided to forego their objection to paragraphs 2, 3, and 4 of the SOF.

Submissions

12. Tupou, you have asked the Court through your counsel to exercise its discretion in favour of a discharge without conviction under sections 69 and 70 SA. Probation also makes the same recommendation for a discharge. Prosecution as clarified during the sentencing hearing does not oppose nor consent to the application but leaves it to the Court to decide. In other words, they sit on the fence or are neutral. But whether or not the Prosecution consents does not bind the Court as I am still required to undertake a full assessment of the facts and circumstances of the offending to satisfy myself of the test.

Law on Discharge without Conviction

13. Section 11 (1) (a) SA which mirrors section 11 (1) (c) NZ Sentencing Act 2002 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 in a criminal matter should be discharged so long as he or she pleads guilty or is found guilty. This was confirmed by our Court of Appeal in Chang v AG^[1] where the learned Justices there stated “it appears from s11 that in every case, the Court is to consider the possibility of such a discharge.” I also remind myself of section 11(2) SA relating to the presumption to impose a conviction. Obviously more serious offending such as murder, manslaughter, rape and others fall for consideration here. But in my view such a presumption does not arise here given the circumstances of the offending.
14. As said several times before, the law on an application for a discharge without conviction and how to approach it is well established both by legislative provision as well as case law. The test was laid down in P v Papalii and Moalele^[2] a case that was concerned with an application for a discharge without conviction brought under s104 of the obsolete Criminal Procedure Act 1972. As we know, this is now replaced by ss69 and 70 Sentencing Act 2016 (“SA”). I conducted a comprehensive analysis of the law in P v Lauina^[3] then P v Salele^[4] and P v Ropati^[5] and so have my other colleagues.^[6] I do not wish to traverse this again suffice to say that the statutory provisions under ss69 and 70 SA do not impose a new test different from that we adopted in Papalii.
15. 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 of costs.^[7] A discharge without conviction is deemed an acquittal.^[8]
16. 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.”

17. The law in NZ is settled on the approach to a discharge under their corresponding ss106 and 107 Sentencing Act 2002 as set down in Z v R^[9] and reaffirmed in DC v R^[10]. In Lauina and other cases,^[11] I adopted the Z v R approach quoted below:

“[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).

[28] 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.”

18. AG v Chang^[12] recognized the approach is two staged. The first stage as I identified in Ropati and P v Robles^[13] involves a Court carrying out a judicial assessment of s70 of whether the consequences of entering of a conviction against an accused would be out of all proportion to the gravity of the offending. This is referred to as the disproportionality test and involves three steps as identified in P v Papalii.^[14] These are:
    1. Step 1: Assessment of the Gravity of the offence; which as Z v R require include the aggravating and mitigating factors of the offending and offender;
    2. Step 2: Identifying the direct and indirect consequences of a conviction; and
    100. Step 3: Assessing whether the consequences in step 2 would be out of all proportion to the gravity of the offending
19. As I said in Lauina, Salele and Ropati, only when the above first stage is passed will the Court move to consider the second stage under s69 of whether an accused should be discharged without conviction. So s70SA is therefore a precondition or likened to a gateway that an application for a discharge must pass first before it is granted.^[15]
20. I must remind myself that the assessment of the test is highly individual focused given no two cases are the same. Whereas a discharge may have been granted previously for the same accused or for a similar offending by another accused, it does not necessarily mean that the same treatment will automatically follow for a subsequent offending or every other case. Again, it comes down to the peculiar circumstances of each case and the issue of whether the Court is satisfied of the test.
21. I will now move to consider the 3 step disproportionality test under s70 reminding myself again of the observation of our Court of Appeal in Chang that a judge must exercise his or her statutory discretion to discharge a person without conviction by balancing the direct and indirect consequences of a conviction against the gravity of the offending.^[16]

Step 1: Gravity of the Offence

22. As Z v R require, ^[17] in assessing the gravity of the offence I must consider all circumstances including the aggravating and mitigating factors relating to the offending, you Tupou as an offender and any other relevant factor that might affect the Court’s overall assessment. I again remind myself that the assessment of the gravity of the offence is in relation to your particular offending but not how it measures to other comparable cases. Also I bear in mind that although s70 refers to the gravity of the offence, as case authority establish, offences are not considered in a vacuum. It is necessary to look at the offending itself and assess the reaction of the accused to it as well as the matters that may generally affect the court’s assessment of culpability.^[18]
23. Of the two charges you face the more severe and leading one in terms of penalty is the DUI with a penalty of a maximum of 5 years’ imprisonment or a fine of 50 penalty units. The unlicensed driver is a minor offence. I remind myself however that the severity of a penalty is not the sole determining factor for assessing the gravity of the offending or your level of culpability.^[19] As I said above, the Court normally looks beyond the generic severity of the offence and consider other relevant factors to the offending overall. As Dunningham J observed in Tupu v NZ Police,^[20] the trial judge:

“...noted that it was a serious charge carrying a maximum of five years imprisonment, although correctly recorded that that in itself, did not necessarily establish the seriousness of the offending or the appellants level of culpability.”

24. The aggravating features of your offending is obviously the level of alcohol found in your breath of 72mgs which was 32 mgs over the legal limit of 40mgs. I regard the reading to be middle range or moderate. Also, you made a conscious decision to drive to pick up your wife from the Marina in town knowing full well you had been drinking alcohol. It was irresponsible of you to make that decision. As a matter of common sense, you should have known that you would have been over the limit. As you should be aware, Police have been launching nationwide awareness programmes to deter DUI offences with the thrust and focus being the safety of all road users. You must appreciate by now that driving after consuming alcohol is dangerous, illegal and socially unacceptable as it poses inter alia a risk to public safety and can be quite costly.^[21]
25. Generally speaking, there is a rampant rise of traffic incidents and offences that comes before the FF and this Court prompting the Ministry of Police especially this Court to call for the passing of sterner sentences. In saying that however, on the specific facts of your case, there is no reported injury or damage nor is there evidence to suggest bad or erratic driving on your part. There is nothing to suggest either you drove below the standard of a competent driver as a direct result of the alcohol you consumed leading to the charges before this Court. There is no causal link of that nature. Had police thought proper to bring such charges they would have done so. But as I said it is mainly on the basis of your exceeding the proportion of alcohol and for driving a vehicle without a valid driver’s licence.
26. According to paragraph 9 of the SOF you have a previous conviction for insulting words and a pending sentence for an assault incident in 2016. But I note there is no previous conviction record made available to the Court to confirm the pertinent details of the PC as Prosecution allege. This is despite an expressed directive to make this available when the matter is recalled at 2pm. However, your counsel and equally your affidavit and the PSR states that you were discharged without conviction for the insulting words offending in 2011. Why there are separate views on the subject, I do not know, But I note Prosecution did not take issue with what you said that you were discharged. In the absence of a PC record I give you that benefit of the doubt.
27. But even if there was a previous conviction for insulting words in 2011 or if you were discharged, it does not preclude this Court from considering this application afresh as I am still required by ss11 and 70 SA to assess whether you meet the test under s69 SA. If there is a previous conviction, then it may be an aggravating factor against you as an offender. However, I place no weight on it given the broad principle of law that a Defendant cannot be punished twice for the same offending also given the time lapse of 8 years since that last offending of insulting words which is a minor offence. I am told there is a 2016 assault charge against you that has not been dealt with yet. The Court will cross that bridge when it gets there.
28. As I said above, there is certainly no pattern of traffic misbehaviour of this nature recorded previously against you. The previous insulting words 2011 offending is unrelated to this one. NZ have what they call a Criminal Record (Clean Slate) Act 2004 whereby a conviction from 7 years ago would we wiped out provided the accused meet all the requirements under s7. The purpose of the scheme is to allow individuals with past criminal convictions to put their past behind them and start on a clean slate.^[22] We do not have such a legislative framework but maybe it is timely we have one. For these purposes however, the time lapse between the two offendings from 2011 to 2018 is in your favour as it tells me you have been staying out of trouble.
29. In terms of the mitigating factors for the offending and you as an offender there are a few. You spent the night in custody. You have no history of traffic offences so I treat you as a first offender for this type of offending also bearing in mind your last offending was in 2011. You have nevertheless remained a law abiding citizen since then. I take into account this was a one off lapse of judgement on your part in deciding to drive when you had been drinking alcohol.
30. A letter from Tauasa Ronny mayor of Vaipuna and Levili attached to the PSR confirms that the village fono already issued a stern warning to you and decreed to dish out a penalty which you are required to fulfil at the next village fono meeting this month (June). So I take this into account. Your remorse is genuine. The testimonials on file and your affidavit confirmed you apologised to the SRU, your church, village and family. Your counsel also conveyed your apology in Court today. You pleaded guilty to the offences at the earliest opportunity indicating remorse and accountability.
31. I also consider relevant here your attempts to put right your transgression of the law in terms of the unlicensed driver charge as you have now acquired a valid licence, thereby reducing or minimising the risk of a repeat of that offending.
32. I also take into account your background and personal circumstances. Your PSR and testimonials submitted on your behalf traverses your background and attests to your character. You are 30 years old, married with one child and residing at Vaitele fou. You have a good educational background finishing at year 13 and was raised by your maternal grandmother at Samusu Aleipata until you relocated to Vaipuna where you continued your primary schooling at Vaivase Primary School. The testimonials by Rev. Tu’u’au and Rev. Uele confirm you are a strong Christian and actively involved in church activities especially youth projects. I accept you are community spirted and an active contributing member to the community your family and church.
33. You are a professional rugby player with a lucrative sporting career spanning some 14 years commencing in 2004. At the age of 18 you debut in the Manu Samoa 15s and later the 7s team. You also secured a contract with Boston America in 2016 and continue to play club rugby for Vaiala. You are currently the captain of the Manu Samoa 7s and have represented that team in a number of national and international rugby tournaments. Your family rely on your rugby career to assist with financial support.
34. You are contracted to the SRU to play for the 7s team and current captain of that team. So you are a public figure in that sense given the high ranked sporting role you hold. With such comes the public expectation that you be a good role model by portraying yourself in the best light on and off the field and do what you could to avert getting into trouble. As an ambassador of Samoa playing for our national rugby team it is only natural that the public would closely follow your activities.
35. As a result of this incident, details of your offending was widely publicised through mainstream media and social media. It was made public that you were sent home from London at the end of last month (May) to stand trial for these offences and that you were suspended for two weeks from playing the remaining World Series tournaments in Paris and London. With Samoa being such a small country and your being a public figure, word of your suspension and being sent home quickly spread like fire. One only need to do a search on Google and Facebook to see this. I accept you were subjected to adverse public scrutiny and that it caused humiliation and stigma. But then again this comes with the territory.
36. The testimonial from Zane Hilton, Rugby Union General Manager of the High Performance Unit confirms that on 2/06/18, the SRU Integrity Unit met with you regarding a breach of your contract where you were found guilty of a minor breach of bringing the game into disrepute. You were fined a match and touring payment of $2000 for the Word Series leg in London and Paris. This was regarded as a substantial financial setback.
37. The same letter indicates that you are undergoing counselling funded by SRU under the guidance of Pastor Lenny as part of your rehabilitation. I take this into account as a positive step you have undertaken with the SRU towards rehabilitation to treat yourself to minimise reoffending. It also shows inter alia your acceptance of responsibility, accountability for your conduct and willingness to make good the harm done. These disciplinary measures reflect that SRU did not take lightly your off the field misconduct here, when you committed these offences. Not only were you penalised by way of a financial penalty, but also suspension from playing at the last games of the London/ Paris tournament, in addition to being sent home to stand trial for these charges.
38. Having considered the above, and all relevant circumstances of the offending I form the view the gravity of the offending is low to moderate.

Step 2: Direct and Indirect Consequences of a Conviction

39. As I said in Lauina,^[23] 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 nd Police^[24] and reaffirmed in Z v R^[a> and DC v R[26] as follows:

“[34] ... 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 if the Court is satisfied there is a real and appreciable risk that such consequences would occur.”

40. The judicial assessment of the direct and indirect consequences need not be determined to any legal standard of proof.^[27] 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. A real and appreciable risk connotes something of substance but not merely fanciful or speculative.^[28]
41. As I observed in other cases, NZ case authorities on this subject shows that there is no onus on the offender to establish that the disproportionality test has been met. But 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.^[29] But as I said as well in other cases, if Prosecution wish to submit their own evidence to rebut such consequence then by all means file the appropriate affidavit with supporting documents to substantiate it. Mere assertions from the Bar in my view will not suffice. As I stated in Salele, the NZ approach makes good sense. But there must also be room for flexibility and to keep it real given the individual circumstances of the offending and offender, types of offending ranging from minor to serious, our own cultural context, geographic disadvantages, different immigration laws of each country and so fourth.
42. In terms of the mandatory requirement under s11, the Court must be alive to the fact that the majority of Defendants are unrepresented and not well equipped to prepare an application for a discharge. This means it is left to us Judges to be more robust in identifying each case in which a discharge might be suitable and direct the unrepresented Defendant to provide the required information to satisfy the test. This is certainly the practice I have adopted. In most cases as well the Probation office makes the recommendation and I applaud their hard work and tireless efforts to the administration of justice.
43. Tupou you depose in your affidavit that you have signed a contract with SRU. The nature of that contract and your career as a professional rugby player requires that you travel a fair bit. You argue that countries have different immigration policies and a conviction will have a bearing on the granting of a visa and as such it would hinder your travel and ultimately your ability to fulfil the terms of your employment contract. Prosecution given their neutral stance on the application accedes there may be difficulties with immigration visa applications and travel but otherwise leaves it to the Court to decide. Your counsel also puts forth that at some stage you would like to resume playing for a team in the USA but a conviction may hinder your ability to do so.
44. I accept there is a real and appreciable risk of the consequences identified above occurring. Common sense dictates that no overseas team would want to hire you with a conviction to your name given the expectation that you must be disciplined on and off the field. With the publicity your suspension attracted it is more likely than not that other international teams have learnt of this incident and would be keen to know of the result of this Court case. Common sense also tells me that a potential contracting team would rather put its eggs in a person without a conviction than a player with one to avoid any potential financial loss.
45. DUI is a global problem every country in this world face given the significant risks to public safety. Your disclosing a DUI conviction as I said above will be a cause for pause for any overseas club as it may prove costly and given the risk of repeat offending. Your career progress lies in the hands of SRU and other rugby clubs who might wish to contract you. Not in your own hands.
46. You are an exceptional rugby player, now at the peak of your career trying your best to stick to your team’s core values enforced by SRU. Until this incident you otherwise had an exemplary disciplinary record. I accept there will be a diminution of future rugby opportunities for you.
47. As I observed in other unrelated cases for similar applications for a discharge, ^[30]Samoa is not like other countries. With the exception of some Pacific Island Countries, for example, Tonga and Fiji, our passport cannot guarantee automatic entry into other countries. In your career, you are required to apply for a visa to every international country our national team competes in ranging from USA, Australia, NZ and other countries. The process can be quite strenuous and does require you disclose any previous conviction. I know this for a fact having applied for visas to those particular countries. Each country has immigration laws that must be strictly complied with. Some require character references and police clearance. Even the arrival cards require you declare a conviction and a false declaration as we all know is an offence.
48. There is an email from your coach Gordon Tietjens informing that he has chosen you to lead the 7s team to the LA tournament next month. I am informed from the Bar there is some urgency in the SRU knowing a decision on this matter so they may decide if you should go. Travel for you is therefore not speculative. But as I said it is not dictated by our immigration laws but foreign jurisdiction immigration rules of entry. We have no control over that.
49. Your counsel informs that although you have already been reprimanded by the SRU a conviction may lead to your contract being terminated. Common sense tells me, that if you are unable to secure a visa to any of the countries you are meant to be competing in, then ultimately you cannot fulfil the terms of your contract. As I said in para 44, I accept there is a real and appreciable risk that a conviction will be a barrier to your fulfilling the terms of your contract. We are not talking here about a prediction that you are an amateur who may become a professional rugby player at some stage in life. You are already a professional player with a contract in place. So as I said the possibility of the demise of your sporting career and impediment to travel is real and appreciable.

Step 3: Are the consequences out of all proportion to the gravity of the offending?

50. The proportionality of the consequences falls to be considered against the gravity of the offence and I have canvassed this above. In Iosefa v Police,^[31] the NZ High Court stated that the degree of likelihood will be material to the Court’s assessment of whether the statutory test is satisfied in the circumstances. So the higher the likelihood and the more serious the consequence, the more likely it is the proportionality is met.
51. I have weighed the gravity of the offending to be low to moderate taking into account that the mitigating factors did much to ameliorate the aggravating factors and thus culpability. For the reasons, canvassed above, I am of the view that the consequences of the offending will be disproportionate to the gravity of the offending. You have therefore passed the three step test.

Stage 2: Should the Court exercise its discretion to discharge under s69?

52. Having considered the disproportionality test and passing the gateway, I am of the view the residual discretion should be exercised in your favour to discharge you Tupou without conviction. As I said in Lauina and other cases, it is very rare that after passing the first disproportionality stage under s70SA, a discharge is not granted. A conviction will in my respectful view, compromise your rugby career prospects, your gaining entry into other countries and impact your earning capacity.
53. I note, there are already sentencing decisions in this Court such as P oni^[32] and v Foalaulima^[33] where travel impediment was put forth as a hardship out of all proportion to the grae gravity of the offending. However, this ejected by the then Judge Cdge Clarke stating that potential impediment for travel to a foreign country was a universal problem. But I am also aware of other cases where travel was considered a hindrance and discharge without conviction granted. These are to name a few P v Fepuleai[34], Police v Tualagi Paul,^[35] P v Afoa aai,^[36] P v Annandale^[37], to some extent P v Viane,[38]P v Salele^[39], P v Ropati^[40], P v Robles^[41].
54. Other learned Judges and I have dealt with cases involving promising sporting Defendants and have discharged them withoutiction. It is of interest test to note though that none of those cases have been appealed. An example of such a case I dealt with is P v Patrick Faapale^[42] who was charged with DUI with a reading of 56 micrograms. Probation had proposed a discharge given his promising rugby career. I sentenced him on 13/10/17 with a discharge without conviction but ordered him to pay $360 Court costs and $50 Prosecution costs. These costs were duly paid. The consequences I took into account there included the impact of a conviction on the career prospects of the accused and his ability to travel. Like you Tupou, Faapale also had a contract with SRU to play for the Manu Samoa rugby 7s team. He too was seen by the SRU as someone who promoted the core values, discipline and dignity of the team. The offending was therefore out of character. I saw that a conviction would be out of all proportion to the gravity of the offending.
55. Another case I dealt with where the Defendants were aspiring soccer players is P v Pani Siliva, Peter Filisi and Iese Asomua.^[43] That case however is distinguished in that the accused there were not charged with DUI but Actual Bodily Harm under s119(2) Crimes Act 2013. I took into account the high degree of provocation by the victim and his mates he drank with as well as the disparity in the involvement of each accused, their ages and youth, good character, remorse and guilty pleas and completed their therapeutic programmes. They were sentenced on 23/04/18 where I discharged each of them and ordered the payment of costs in various sums in accordance with their respective involvement. The first and third named accused were each ordered to pay costs of $100 to the victim, $50 court costs, $25 for Prosecution and $25 for probation. For the second named accused, he was ordered to pay, $100 court costs, $50 prosecution costs, $50 probation and $100 costs for the victim. These costs were duly paid and the three accused discharged without conviction.
56. Throughout the years, this Court has issued discharge without conviction for DUI offences to scholarship and tertiary students who have yet to complete their studies, church Ministers/Priests, medical doctors, aspiring sports people, lawyers, accountants and other professions, public servants, business people and others of good character in the community. Your case is no different.
57. In sentencing you, I have considered the purposes and principles of sentence set out in ss7 and 8 SA. There are important considerations of denunciation and deterrence at play here. It is crucial that you and others know that this Court does not condone this type of offending as it is becoming far too prevalent. I know this for a fact having have to deal with traffic mentions and sentencing on a weekly basis. Alcohol is considered worldwide as a disinhibitor to driving and therefore road safety. It is far too costly for any community as it affects property, human life and drains the health, and criminal system. It is happening in our small society with all too much regularity despite wide awareness programmes by the Ministry of Police, LTA, other government ministries and NGOs. You and others must be deterred from committing similar offences of this nature.
58. As I observed above, you have been held accountable, you acknowledged responsibility for your offending and also in the process of completing your rehabilitation or therapeutic programme. So I am not too concerned about those aspects. Section 69 (3) (a) allows a court to order costs as it deems fit in exercising the discretion to discharge an accused. I intend to exercise this to meet public interest considerations of denunciation and deterrence.
59. But I must warn you Tupou, not everyone gets a discharge without conviction. Only when the test is met will one be granted. You have passed that test today. But the next time you appear, you may not be so lucky. So you must embrace this opportunity and appreciate it. You are a public figure and an ambassador of this country something you should be proud of. You need to act like the role model that you should be and consider yourself fortunate you have the talent that God gave you. Do not take anything for granted.
60. The next time you know you have been drinking, stay home or catch a taxi if you need to go somewhere. Encourage your wife to stay home to devote yourselves to evening prayer and nurture your young child instead of going clubbing leading to your making ill decisions to pick her up knowing you have drinking. A bit of common sense would go a long way for you both. Taumafai ona tuutuu i le loloto le tofa ma le faautaga. Manumanu i lou tagata.

Penalty

61. You are ordered to pay the following:
    • a) Court costs in the sum of $500; and
    • b) Prosecution Costs in the sum of $100.
62. You are to pay these costs totalling $600,00 by 10am 29/06/18. Your matter will be recalled before me on the same date at 10.30am for you to appear and produce the proof of payment. Upon receipt, I will discharge you without conviction. A discharge without conviction is an acquittal under s69 (2) SA.
63. Note however that if for some reason you fail to comply, then a warrant of arrest will be issued; you will be remanded in custody until brought before me for an alternative sentence. The moral of all this is, pay the costs by the due date to avoid any further repercussions.

Addendum

64. Tupou paid on 22/06/18 the full costs of $600 as ordered. He was discharged without conviction and his matter was not recalled on 29/06/18.
    

JUDGE ALALATOA ROSELLA VIANE PAPALII

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^[1] Chang v AG [2018] WSCA 3 at [53].
^[2] P v Papalii & Moalele [2011]] WSSC 132.
^[3] P v Lauina [2017] WSDC 5; also see Meredith v AG [2017] WSSC 48 and P v Amituanai [2017] WSSC 49
^[4] P v Salele [2018] WSDC 14
^[5] P v Ropati [2018] WSDC 9
^[6] See P v Meredith and P v Amituanai @ note 3 above.
^[7] See s69 (3) (a) Sentencing Act 2016
^[8] See s69 (2) Sentencing Act 2016
^[9] Z v R [2012] NZCA 599 at paras [28] and [27]
^[10] DC v R [2013] NZCA 255
^[11] See P v Salele above note 4; P v Ropati above note 5 and P v Robles [2018] WSDC 10
^[12] Above note 1
^[13] Above note 11
^[14] Above note 5
^[15] See R v Hughes [2008] NZCA 536 and Ministry of Social Development v Wirepa [2017] NZDC 21831.
^[16] Above note 1 at [65]-[70].
^[17]Hughes above note 15; DC v R above n 10; and Z v R above n 9 @ [27] & [28];
^[18] Tupu v Police [2014] NZHC 743
^[19]Pale v Police [2010] WSSC 122; Tupu v Police Ibid.
^[20] Above note 18 at [18]
^[21] See comments of NZ Supreme Court in Aylwin v Police [2008] NZSC 113
^[22] See Lechner v Police [2013] NZHC 1166.
^[23] Above note 3
^[24]Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34] – [35]; 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].
^[25] Above note 9
^[26] Above note 10
^[27]Ibid note 10
^[28] Also see DC v R above n 10 at [43];
^[29]Gasson v N [2012] NZHC 2988 at [23] – [24]; Police v M [ 2013] NZHC 1101 at [49] and [60] – [62].
^[30] See P v Annandale [2017] WSDC 15; P v Salele above note 4; P v Ropati, above note 5;
^[31] Above n 24 at [35].
^[32]P v Rimoni (Unreported sentencing decision of Judge now Justice Clarke delivered in District Court on 11 May 2016)
^[33] P v Foalaulima [2016] WSDC 32
^[34] P v Fepuleai [2015] WSSC 105
^[35]P v Tualagi Anita Paul (Unreported Sentencing Decision of Judge Roma delivered on 7 November 2016)
^[36]P v Afoa Tui Vaa i(Unreported Sentencing Decision of Judge now Justice Clarke delivered on 30 November 2017)
^[37]P v Annandale above note 30.
^[38]P v Viane [2016] WSDC 56
^[39] Above note 4
^[40] Above note 5
^[41] Above note 11.
^[42] P v Patrick Faapale (Unreported Sentencing Decision of J Viane Papalii delivered on 13/10/17)
^[43] P v Siliva, Filisi and Asomua (Unreported Sentencing Decision of J Viane Papalii handed down on 23/04/18.