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Police v Filipo [2018] WSDC 20 (26 November 2018)
IN THE DISTRICT COURT OF SAMOA
Police v Filipo [2018] WSDC 20 (26 November 2018)
Case name: | Police v Filipo |
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Citation: | |
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Decision date: | 26 November 2018 |
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Parties: | POLICE (Informant) v TULI FILIPO (Defendant) |
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Hearing date(s): |
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File number(s): |
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Jurisdiction: | CRIMINAL |
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Place of delivery: | District Court of Samoa, Mulinuu |
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Judge(s): | Judge Mata’utia Raymond Schuster |
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On appeal from: |
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Order: | I am satisfied that a discharge without conviction is appropriate given the circumstances of this matter. Accordingly, I sentence
the defendant: - For the charge of negligent driving causing injury -
- Discharge without conviction; and
- Ordered to pay $300 for court costs before 4pm on the day sentence is handed down; and
- In default 14 days in prison
- For the charge of failing to ascertain –
- Discharge without conviction; and
- Ordered to pay $500 court costs before 4pm on the day sentence is handed down; and
- In default 28 days in prison
- For the charge of failing to report –
- Discharge without conviction; and
- Ordered to pay $100 court costs before 4pm on the day sentence is handed down; and
- In default 28 days in prison
The sentences of monetary fine will be cumulative and subsequent imprisonment in default of payment shall be concurrent. |
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Representation: | Attorney General’s Office for the Informant M. Lui for the Defendant |
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Catchwords: | Negligent driving causing injury – failed to stop and ascertain – failed to report an accident – discharge without
conviction – first offender – police officer – ordered to pay costs – discharged without conviction. |
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Words and phrases: |
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Legislation cited: | |
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Cases cited: | |
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Summary of decision: |
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IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
P O L I C E
Informant
AND:
TULI FILIPO
Defendant
Representation: Attorney General’s Office for the Informant
M. Lui for the Defendant
Date of submissions: 21 September 2018
Decision: 26 November 2018
Sentencing Decision of DCJ Schuster
Introduction
- The Defendant is charged with three (3) charges that at Apia on the 30th day of July 2017, the Defendant of Falefa:
- (i) Negligently drove a motor vehicle causing Injury to Tinialuga Lupo pursuant to section 39(A) of the Road Traffic Ordinance 1960 which carries a penalty of a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding five (5) years;
- (ii) Failed to Stop and Ascertain following a traffic accident pursuant to section 44(1) and (3) of the Road Traffic Ordinance 1960 and upon conviction is liable to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 5 years; and
- (iii) Failed to Report an Accident pursuant to section 44(2) and (5) and section 72a (2) of the Road Traffic Ordinance 1960 which carries a maximum penalty of 2 penalty units in the case of a first offender and in the case of a second or subsequent conviction
to a fine not exceeding 4 penalty units or to imprisonment for a term not exceeding 3 months.
- The Defendant was represented by counsel Ms Muriel Lui and on 13 March 2018 the Defendant entered a guilty plea to the charge of
Failure to Report an Accident. For the remaining charges, the Defendant entered Not Guilty pleas and the matter was adjourned to
the 30 May 2018 for hearing of the Negligent Driving Causing Injury and the second charge of Failure to Stop and Ascertain and for
sentencing on the charge of failure to report.
- On the 30th May 2018, prior to the commencing of the hearing, the Defendant through counsel sought leave of the court to vacate the not guilty
pleas and substitute with a plea of guilty to the two charges of negligent driving causing injury and failure to ascertain. The matter
was then adjourned to the 27th July 2018 for the Prosecution to provide a summary of facts, a pre-sentence report from the Probation Office and for sentencing.
- On the 27th July 2018 before Judge Fepulea’i A. Roma, the defendant disputed paragraphs 4, 6 and 10 of the summary of facts and the matter
was adjourned to the 7th August 2018 for the prosecution and defence counsel to discuss the disputed paragraphs. On the 7th of August 2018, prosecution sought an adjournment to file an amended summary of facts and the final adjournment was entered by my
brother Judge to the 14th August 2018.
- On 26th July 2018 Ms Lui filed a Sentencing Memorandum seeking a discharge without conviction on all three charges. On the 14th August 2018, the Defendant through counsel accepted the Amended Summary of Facts and the matter was adjourned on application by Ms
Lui to 14th September 2018 for sentencing.
- On 14th September 2018, Ms Lui was given opportunity to provide detailed submissions and proof of evidence of consequences of a conviction
on her client. The matter was adjourned to 21st September 2018 for sentencing. On the 21 September 2018, judgment was reserved.
Factual background
- The Defendant is a 29 years old male from Falefa and employed as a Police Officer with the Ministry of Police since 2011. He is single
and the eldest of his siblings. The Victim is a 31 year old male of Aai o Niue.
- The amended summary of facts admitted by the defendant state that on the 30th July 2017 at about 12am, the defendant was driving a Toyota Harrier vehicle owned by Juliana Rentals on Main Beach Road. They had
been drinking at the RSA club and were on their way home to the village of Vaiala driving westward.
- The Defendant was speeding as the vehicle approached the traffic lights in front of the Police Station.
- The victim and his friends were at the same time in front of the Police Station waiting to cross over to the seawall side of the
road. As the victim was halfway across the road, the defendant’s car swerved to avoid the victim as the victim instinctively
tried to get out of its way but unfortunately was heading towards the same direction where the vehicle was swerving. As a result,
the defendants vehicle hit the victim and the victim was thrown off the road and sustained injuries such as a peeling skin on his
left leg, multiple scratches to the face and bodily pain.
- The Defendant continued to drive away from the scene as the victim’s friends carried the victim to the Police Station to get
help for the victim. The Fire Emergency vehicle took the victim to the hospital.
- The Defendant was taken to the Police on 16 January 2018 where he was cautioned of the offence and informed of the charges against
him. This was about 5 ½ months after the incident.
Aggravating features of the offending
- The prosecution state in their memorandum on sentencing that there are five aggravating factors that the court should take into account:
(i) level of negligence; (ii) risk to life; (iii) duty as a driver and a police officer; (iv) injuries of the victim; and (v) seriousness
of the offence.
- The defendant accepts from the summary of facts that he was speeding prior to the accident and had consumed alcohol. The offending
commenced when the defendant after consuming alcohol at RSA got behind the wheel of the motor vehicle and at some point prior to
and during the accident drove at speed. There is no evidence from the summary of facts as to the level of intoxication and how fast
the defendant was driving but speeding suggests that he was driving more than the allowed speed limit on Main Beach Road. There is
no evidence from the summary of facts as to what the fixed regulatory speed limit on Main Beach Road was at the time of the accident
to determine how fast the defendant was travelling from the maximum speed limit allowable.
- It is a difficult but a great responsibility for a person to drive a motor vehicle on a public road even with the absence of any
physical impediments such as fatigue, intoxication, momentary lapse of attention, some material fault in the vehicle, etc. However,
when a person gets behind the steering wheel of a motor vehicle knowing that he/she possesses any one of the above impediments to
himself/herself or the vehicle, they undertake a course of action that is without care and a high risk of a potential vehicle accident.
Having consumed alcohol and driving a motor vehicle above the speed limit allowable in this particular part of the road equals a
dangerous situation. As a driver and a Police officer duty bound to up-hold the law, it was a dangerous situation that he should
have recognised and appreciated.
- There is no agreement nor evidence from the summary of facts as to whether the traffic lights indicated green for the defendant to
proceed. The probation reports from the defendant that the green light was on for the defendant to proceed through the lights. The
prosecution did not dispute this statement and I will not have regard detrimental to the defendant as to that particular issue. Similarly,
there is no evidence from the summary of facts agreed by the defendant that the victim crossed the road following the coming into
light of the pedestrian crossing indicator. The probation report again states that the victim suddenly crossed the path of the defendant’s
vehicle when the green light was still showing for the defendant to proceed. The prosecution did not oppose the defendant’s
statement to probation. These are matters that go towards the determination of the seriousness and nature of the offending and the
gravity of the offence.
- However, even if the victim and his friends contributed to the accident by crossing the road without regard to the guidance of the
traffic lights, this does not exonerate the defendant’s duty and obligation as a motor vehicle operator to be aware of crossing
pedestrians. It appears that the defendant was either not aware of the crossing victim and his friends or that he did notice the
victim and his friends but paid little regard to their situation until it was too late. It did not help with the defendant having
consumed alcohol and speeding. Nevertheless, with regard to sentencing, I am required to consider the victims own actions whether
or not he contributed to the circumstances of the accident.
- The prosecution suggests that the level of negligence and risk to life is high on the defendant’s part. Such a holistic view
would be reasonable for the Court to accept with offences of this nature. But in the absence of evidence as to what the speed limit
was on this part of the road, how fast the defendant was speeding and the level of intoxication of the defendant, I am unable to
agree with the prosecutions suggestion. I can only draw the inference in favour of the defendant that he was speeding but not excessively
beyond the speed limit and the injuries of the defendant further shows that they were not serious. In saying that, the court cannot
disregard the evidence that the victim sustained injuries and the injuries are of itself an aggravating feature of the offending
whether serious or not.
- The prosecution further submits in their written submissions in response to the application for discharge without conviction dated
21 September 2018 that the penalty imposed in relation to the charges suggests the seriousness of the offending as intended by Parliament.
The Court accepts that premise as a starting point. However, the Court must then attend to the exercise of determining as to whether
the particular offending and circumstances fall within the low, medium or high end of seriousness as each case must be determined
on its own facts and merits.
- The prosecution submits that a discharge without conviction “... are granted only in exceptional circumstances”. As to what circumstances fall under the head of “exceptional” is not elaborated but for the prosecutions suggestion
that it must be a case where the gravity of the offending is perhaps considered at the low end. Even if that were so, it must be
reminded that section 69 of the Sentencing Act 2016 is a discretionary application by the court after consideration of the relevant circumstances. This will be elaborated on further
in this ruling.
- The prosecution further submits that there is no real evidence before the court in support of the defendant’s contention that
the consequences are out of all proportion to the gravity of the offending. The prosecution submit that the toll on the defendant
and his family are expected consequences that arise from the defendants offending. The prosecution particularly refer to the defendants
actions of consuming alcohol and driving a motor vehicle.
- However, it is not an offence to consume alcohol and subsequently drive a motor vehicle. The circumstance only becomes an offence
when the level of intoxication exceeds the legal limit and at the same time being in charge of a motor vehicle (section 40 Road Traffic Ordinance 1960). That circumstance does not feature as a matter of evidence in this matter nor a charge laid. As to this offending and charges being
a toll on the defendant and his family, the Court cannot disregard the fact that the defendant’s family are innocent victims
of the defendants offending. This is particularly so in relation to their source of income and support. This fact so far as the material
submitted for sentencing is concerned is not disputed by the prosecution.
- The prosecution under the head of “Immigration status” relying on Zhang v Ministry of Economic Development (HC) Auckland CRI-2010-404-453 (17 March 2011) submitted that the court should not usurp the role of the immigration authorities or a professional body or a particular employer
to decide the significance of a particular conviction (Steward v New Zealand Police [2015] NZHC 165 (13 February 2015).
- Notwithstanding the fact that the New Zealand Road Traffic legislation and provisions may be similar and in many instances identical
in nature with Samoa, the social, economic and political fabric of the Samoan society are vastly different from that of New Zealand.
The New Zealand authorities have only persuasive effect and may be a helpful guide to the interpretation and application of laws
in Samoa. However, the Samoan Courts are required primarily to determine the circumstances of each case on its own merit and have
regard to the local customs, practices and attitudes as generally known and practised by the Samoan people (Justice Nelson in Police v Faauila [2007] WSSC 100 (9 July 2007)). It is with that in mind that I am required to consider Zhang and Steward as to whether the point contended by the prosecution should be applied in this case.
- The prosecution further state that the defendant has not provided any real evidence to show that a conviction will affect his employment by a termination or if continued to work, he will miss out on future promotions.
- The prosecution further suggest that if a discharge is granted, this is tantamount to making a public statement that the law does
not apply to the defendant above all else (above the law). Lest the prosecution have overlooked the fact that the defendant has already
pleaded guilty to the charges accepting his responsibility in the offending as well as the consequences of any sentence the court
directs appropriate to the circumstances of the case, this submission is without foundation.
- The role of the court when faced with an application for discharge without conviction must consider whether the defendant would be
more appropriately dealt with under sections 69 and 70 of the Sentencing Act 2016. The Court must have regard for a sentence of discharge without conviction in every matter that comes up for sentence unless by any
enactment applicable to the offence the court is required to impose a minimum sentence. There is no such minimum sentence imposed
in the three charges the defendant has pleaded guilty to. The suggestion therefore of the likelihood of special treatment towards
the defendant if the discretion is invoked under section 70 is without proper thought, consideration and foundation and will discuss
it no further.
- The prosecution submits in their sentencing memorandum that section 70 of the Sentencing Act not be invoked given the aggravating factors involved referred in paragraphs 13 – 19 above. The prosecution seek for the defendant
to be convicted and ordered to pay $600 to the victim, Court costs of $600, prosecution costs of $600 and for the defendants to be
disqualified from holding a drivers licence for a term of 12 months.
- Senior Sergeant Stanley as prosecutor verbally submitted from the bar table of instances where police officers were previously convicted
of offences but have continued to be employed in the Ministry subsequent to their conviction. The opportunity was provided for the
prosecution to submit these instances to assist the court but no such information was received as to the type of offences these instances
relate to as well as to any conditions, if any, applied to these convicted police officers employment upon being reinstated.
About the defendant and mitigating factors
- The defendant is the eldest of a family of seven from the village of Falefa. His father had passed away and they were raised by his
mother’s sister, Melania Filipo. The defendant attended the Falefa Secondary School before completing his education at Leulumoega
College. He then attended the National University of Samoa’s School of Technical Institute for two years before entering the
Police force in 2011.
- Melania told probation that the defendant is her right hand helping her with looking after the family and contributing to family
faalavelave’s. A letter from the defendants Minister of Religion at the EFKS Falefa dated 20 June 2018 speaks of the defendant
as trustworthy, obedient and well-mannered person who attends diligently to his duties and chores as a member of the Congregation.
- The Defendant’s village mayor Mr Purcell in his letter dated 4 June 2018 speaks of the defendant as a person of good character,
participates in the village affairs and had never been involved in a matter requiring the sanction of the village council. Mr Purcell
continues that the defendant is cooperative and attends the church youth and choir. Much of the same reference to the defendant’s
good character is echoed in the letter from the Falefa Primary School Principal and a character letter from Police Inspector Aumua
as to the defendant’s diligence when attending to his Police duties.
- The victim himself also attached a letter dated 29 June 2018 asking for the matter to be withdrawn given that there had already been
reconciliation between himself and the defendant as well as restitution of about $2,000 paid to the victim. The victim states that
the incident occurred on a Saturday but the defendant came and saw him the following Monday and apologised for the incident and the
victim then forgave the defendant.
- The defendant has no prior convictions of similar or any other offending. He had pleaded guilty to the charge of failure to report
on the first available opportunity. It was only on the date of hearing that the defendant vacated his not guilty pleas and entered
a plea of guilty to the negligent driving causing injury and failure to ascertain. Despite the delay, the guilty pleas have saved
the cost, time of the court, prosecution and witnesses to attend a full hearing.
- The Probation Service recommend a fine as opposed to a custodial sentence and for the defendant to attend the Alcohol Treatment program
for seven (7) weeks as supervised by the Probation Service.
Discharge without conviction
- The Defendant through counsel asks the court for a discharge without conviction. Section 69 and 70 of the Sentencing Act 2016 provides:
- 69. Discharge without conviction-(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction,
unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
- (2) A discharge under this section is taken to be an acquittal.
- (3) A court discharging a defendant under this section may:
- (a) make an order for payment of costs or the restitution of any property; or
- (b) make an order for the payment of any sum that the court thinks fair and reasonable to compensate person who, through, or by means
of, the offence, has suffered -
- (i) loss of, or damage to, property; or
- (ii) physical harm; or
- (iii) loss or damage consequential on any physical harm or loss of, or damage to, property; or
- (c) make an order that the court is required to make on conviction.
- (4) If the court is considering making an order under subsection (3)(b), it may order a reparation report to be prepared under section
25 as if the court were considering imposing a sentence of reparation.
- (5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any physical harm, or loss or damage
consequential on physical harm, unless the person who suffered the physical harm is a person described in paragraph (a) of the definition
of “victim” in section 2.
- 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.
- The threshold legal test as to the exercise of the courts discretion in an application for a discharge without conviction has been
discussed in previous cases under section 104 of the Criminal Procedure Act 1972 (“the CPA 1972”). In Police v Papalii and Moalele [2011] WSSC 132, His Honour Chief Justice Sapolu adopted the three-step approach taken from Justice Richardson’s decision in Fisheries Inspector v Turner [1978] 2 NZLR 233 (and affirmed in Police v Roberts [1991] 1 NZLR 2015):
- “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.”
- The first step requires the court to consider the gravity of the offending. The second step involves a consideration by the court
of any direct and indirect consequences of a conviction on the offender. The final step requires the court to consider whether the
consequences are out of all proportion to the gravity of the offending.
- Sections 69 and 70 of the Sentencing Act 2016 now repeals section 104 of the CPA 1972. However, notwithstanding the appealed section 104 of the CPA 1972 and as enunciated by DCJ
Papalii in paragraph 46 of Her Honours judgment in Police v Lauina [2017] WSDC 5 (12 May 2017), section 69 and 70 of the Sentencing Act does not create a new threshold for the exercise of the discretion to discharge without conviction from the approach adopted by Sapolu
CJ in Papalii v Moalele. I am indebted to the thorough analysis undertaken by DCJ Papalii on this point in Police v Lauina.
- Police v Lauina in paragraph 55 of Her Honour’s decision referred to DC (CA 47/13) v R [2013] NZCA 255 where the court of Appeal held:
- “The inquiry is two staged. At the first stage it is necessary to consider the gravity of the offence, the direct and indirect
consequences of the conviction and whether the consequences are out of all proportion to the gravity of the offence. In a composite
way, this is the jurisdictional test. The second stage of assessing what is a residual discretion is only engaged if that jurisdiction
is established.
- In H (CA680/11) v R [2012] NZCA 198 again cited in Pol v Lauina stated that:
- “The proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment”.
- In Chang v Attorney General [2018] WSCA 3 (13 April 2018), the Court of Appeal stated:
- “65. Two steps are involved. The first is that in terms of s 70 a Court must be satisfied that the direct and indirect consequences
of a conviction would be out of all proportion to the gravity of the offence.
- .................
- 71. We turn to the overriding discretion. .......”
- What is now clear is that the Court must first undertake a fact finding exercise to be satisfied that the disproportionality test
is met under section 70 of the CPA 1972 before it can invoke the discretion under section 69. However, even if the test is met, it
is open to the Court to exercise the discretion or decline to exercise its discretion to grant a discharge (for example, if there
is a need for general deterrence or a history of persistent offending which would make applying the discretion inappropriate) (see Adam’s on Criminal Law – Sentencing: Updated Abstract 10/11/14 (Brookers and Thompson)).
Relevant circumstances
I. Negligent Driving Causing Injury
- In Fisheries Inspector v Turner cited in paragraph 25 above stated that the Court:
- “... must refer to all the circumstances that are relevant in the particular case before the Court”.
- In Police v Viane [2016] WSDC 32 (15 July 2016), His Honour DCJ Fepulea’i A Roma stated in paragraphs 18 – 19 of His Honour’s judgment that in order for the court
to consider the disproportionality test, real evidence of the consequences of a conviction on an accused must be produced:
- “19. More recently in Police v. Rimoni (unreported, 11 May 2016) my brother Judge, Clarke DCJ refers to Brunton v New Zealand Police [2012] NZHC 1197 and Oosterman v. Police [2007] DCR 131 in assessing the consequences of a conviction on the accused’s travel and employment prospects, and says:
- “In the modern age where international travel is so common and offences of this type prevalent and serious as conceded by counsel, the speculative possibility of difficulties with future travel, employment or training is not sufficient to warrant the exercise of
the Court’s discretion under section 104. Real evidence should be produced.”
- In Police v Fepuleai [2015] WSSC 105 (21 September 2015), Justice Vaai was faced with an application for a discharge without conviction prior to the repeal of section 104 of the CPA 1972
after a defended hearing of a 58 years old mother and grandmother for actual bodily harm and armed with a dangerous weapon. His Honour
cited Fisheries v Turner as applied in Police v Papalii and Moalele.
- In invoking the discretion, Justice Vaai considered and weighed the relevant circumstances to be applied to a discharge without conviction
application stated in paragraph 12, 13 and 15 of His Honour’s ruling:
- 12. The injuries suffered by the victim in this case although they cannot be described as trifling, they cannot be described as serious
either.
- 13. The whole incident could have been averted if the defendant a 58 year old mother and grandmother had exercised maturity and common
sense instead of succumbing to the accusation by her drunken, supposedly mature son who had just punched his mother in law in the
face. She and four other adults from her family did not go to the complainant’s house to pack clothes and other personal belongings
of her son. She could have waited until day time. But she was so overcome by anger. She was provoked. As a grandmother and mother
she has children, grandchildren, and relatives living in Samoa, New Zealand and Australia which she would like to visit on occasions
from the U-S-A where she is residing. A conviction to her name may hinder and make difficult her wishes to travel.
- ..................
- 15. The embarrassment the defendant has undoubtedly suffered as a result of appearing before this Court on several occasions to answer
and defend the charges is in the Court’s view a punishment in itself.
- In Police v Chang, the Court of Appeal considered the following consequences to be weighed with the gravity of the offences:
- “..............
- 68. However, Mr Leung Wai went on to point to the following:
- a. In August 2016 the Police saw fit to arrest the appellant at her place of work rather than serve the summons that would be normal
for traffic offences of this kind. This reflects no credit on the Police and added unnecessarily to the appellant’s public
humiliation.
- b. Once arrested the appellant was suspended from her position as Director of Public Prosecutions. She remained suspended until
her resignation in March 2017.
- c. The appellant and her family suffered humiliation and material hardship as a result of the prosecution and its attendant publicity.
- d. Proceedings have now been on foot for a total of 20 months with the inevitable stress and uncertainty which this caused to the
appellant and her family.
- e. If left in place, the conviction would cast a permanent and public shadow over the appellant and might have unforeseen repercussions
for her career, for her travel and for similar situations in the future.
- 69. Those consequences are to be compared with the gravity of the offence. The accident was due to a moment’s inadvertence.
Without in any way condoning the error made, split second misjudgements of this kind are the sort of error that many drivers may
make. In this case the appellant was unlucky enough to make that mistake when approaching a bus with defective brakes. Instead of
slowing or stopping, as an oncoming vehicle could normally be expected to do, the bus was unable to stop and ploughed into the side
of the appellant’s car. The appellant should never have created that possibility in the first place. But in terms of culpability,
this was at the lowest end of the scale for this type of offence. And fortunately the injury to Ms Teueli was of short duration.
- 70. For those reasons we are satisfied that the consequences of a conviction would be out of all proportion to the gravity of the
offence.”
- As for the second step in considering the overriding discretion, the Court of Appeal went on to say:
- 71. We turn to the overriding discretion. Mr Leung Wai drew attention to the appellant’s good character, her work for charities,
and the outstanding contribution she made to the Samoan community through her work as a civil servant. Added to the factors already
discussed we are satisfied that in this case there should be a discharge without conviction.
72. Lest it be thought that a discharge will readily be granted for a conviction of this kind, we emphasise that this is very much
an exceptional case. It has nothing to do with the appellant’s profession or her former position as a civil servant. It has
to do with an unfortunate and unusual combination. The combination is the moment’s inadvertence on the part of the appellant,
the defective brakes on the other vehicle, and the disproportionate consequences for the appellant. That combination will be rare
indeed.
Circumstances of the defendant
- Ms Lui for the defendant submits:
- (i) the defendant is a first offender
(ii) the defendant is an active and committed police officer having served for 8 years
(iii) The defendant is an active and reliable member of his village community
(iv) The defendant is the sole provider for his family
(v) The matter has taken a personal toll on the defendant and his family
(vi) The victim was not seriously injured
(vii) The defendant is remorseful and has apologised to the victim and his family such apology has been accepted
(viii) The defendant has assisted the victim in the victims medical and transportation costs, restitution of SAT$2000
(ix) The offending was out of character
(x) A conviction will mean the end of a promising career
- The probation report indicates that the defendant is under suspension pending the outcome of this matter. Whether the defendant is
suspended without pay, suspended with pay or paid a portion of his periodic wages is information not available to the court. Paragraph
10 of Ms Lui’s submissions state that the consequences of a conviction is that the defendant will not only lose his job but
his family and dependents will lose their main source of income the defendant being the sole breadwinner.
- Ms Lui further states that the defendant will find it difficult to obtain other employment with a conviction. Ms Lui was referred
to the Police Service Act 2009 as to whether the Police Commissioner has power to terminate members of the Police service whether or not they are convicted of a
similar charge or charges against them. No further submission was made as to that point but it is important to set out the relevant
provision for completeness.
- Section 50 - 54 of the Police Service Act 2009 (hereinafter referred to as the “PSA 2009”) provide for a process where a sworn member is charged with a breach of duty.
Section 50(1)(b) states that commission of a criminal offence by a sworn member is a breach of duty. The process, however, though
empowers the Commissioner of Police to terminate the sworn member under section 51(B)(2), any sworn member may appeal termination
to the Board of Appeal under section 53. It is the Board of Appeal therefore that has the final determination should a sworn member
be dissatisfied with the punishment imposed by the Commissioner. Section 57 applies to “other members” of the Service
not being sworn members and therefore not relevant for consideration.
- It is clear from sections 50 - 54 that there is a process to protect the interests of sworn members such as the defendant. Ms Lui
however goes further to suggest that even if the defendant not being imposed with an imprisonment term continues his career with
a conviction, it will affect his chances of future promotions to higher rank in the Police service.
Discussion
- In considering the consequences outlined by Ms Lui above as well as having regard to the prosecutions submission on sentencing principles
relating to accountability of the offender, interests of the victim, denounce and deter the offenders conduct, protection of the
community and for rehabilitation and reintegration of the defendant, the Court must now compare these consequences with the gravity
of the offending.
- The accident, based on the evidence available to the Court, appears to be as a result of a momentary lapse of attention on the part
of the defendant. It did not help with the victim having crossed the road at the lights without regard to the pedestrian crossing
light discussed in paragraph 16 above. In saying that, let it be clear that even a momentary lapse of attention constitutes a lapse
of degree of care and attention which an ordinary and prudent driver would exercise in the circumstance.
- The other issue to be determined is whether the defendant’s alcohol consumption and the speed the vehicle was travelling were
contributing factors to the defendant’s momentary lapse of attention. The Prosecution suggest that intoxication and speeding
were also factors that contributed to the defendant’s negligence. I am unable to agree with the Prosecutions suggestion given
that there is no agreed evidence in the summary of facts that support the contention as to the level of the defendant’s intoxication
having impaired his ability to be in control of the motor vehicle. There is also no evidence that the defendant was travelling at
such excessive speed as to have lost control of the motor vehicle causing the accident and injury to the victim.
- I can only draw inference in favour of the defendant considering there is no evidence from the prosecution that the defendant had
been drinking but not as to exceed the legal limit allowable by law. Furthermore, that the defendant was speeding but not in an excessive
manner over the allowable speed limit on Main Beach Road at the area where the accident occurred.
- I also find that the injuries suffered by the victim were trifling and not serious. This would not support the prosecutions suggestion
that the defendant was speeding excessively. The Defendant had time and was able to manoeuvre the said vehicle in time to avoid a
head on collision with the victim. The probation report refers to a statement by the defendant that upon swerving the vehicle away
from the victim, he was unable to avoid the victim completely and the vehicle side mirror collided with the victim. The prosecution
did not dispute this statement. Ms Lui submitted upon clarification sought by the Court in paragraph 7 of the summary of facts that
the defendant was swerving to avoid the victim. Sergeant Stanley for the prosecution accepted the defendant’s version on this
point. In the circumstances, I estimate that the gravity of the offending and degree of culpability is at the lower end.
- In Chang v The Attorney General, the Court of Appeal considered the following consequences of a conviction to the appellant: public humiliation of her arrest, suspension
from her position as Director of Public Prosecution, along with her family suffered material hardship and humiliation from its publicity,
the lengthy period of 20 months the matter had remained undetermined, cast a public shadow over the appellants integrity and career,
her ability to travel freely and for similar situations in the future.
- In Police v Fepuleai, Justice Vaai considered the effect of travel on the defendant that a conviction to her name may hinder and make difficult her wishes
to travel as a grandmother and mother to visit her family in New Zealand, Australia and Samoa from America where she resides. His
Honour went further and stated that it was a punishment in itself that the defendant had to endure several appearances in court to
answer the charges.
- The prosecution rely on the New Zealand position in Zhang and Brunton v New Zealand Police [2012] NZHC 1197 and Oosterman v. Police [2007] DCR 131 applied in Police v. Rimoni (unreported, 11 May 2016) and cited in Pol v Viane requiring that:
- “... speculative possibility of difficulties with future travel, employment or training is not sufficient to warrant the exercise
of the Court’s discretion under section 104. Real evidence should be produced.”
- Inclusive of the matters I have referred to in paragraph 24 above, it is with respect that I would differ from the consideration
undertaken by the New Zealand Courts in Zhang, Brunton and Oosterman and applied in Police v Rimoni. It is the Courts responsibility to consider the circumstances to arrive at what the Court would find as the appropriate penalty
for the offences the defendant has entered a guilty plea. The Court has to be robust and apply its knowledge and experience of human
nature, the local conditions, behaviours and attitudes to the circumstances of each case. Samoa is a much smaller society of about
185,000 people compared to New Zealand which has a population of over three million. The uniqueness and small size of the Samoan
society means that information travels at a rapid pace and more likely than not many Samoan people know or would be familiar with
the identify of defendants being the subject of the information concerned. Therefore, immediate and continuous public humiliation
through media exposure is very real in Samoa.
- The defendant is primarily concerned that a conviction will jeopardise his current employment with the Ministry of Police. The defendant’s
secondary concern is if he were terminated from his employment upon conviction, the brand of a criminally convicted person would
mean that he would find it difficult to find another job. Alternatively, the defendant contends that even if he were to retain his
employment upon a conviction, he would be ruled out of any opportunities for higher rank as is the nature of the Police employment
structure.
- It is a natural human expectation particularly in the service such as the Ministry of Police that a member aspires to move up in
rank as an acknowledgment of personal development, maturity, experience as well as for higher salary. It is a Ministry that follows
a strict and high code of duty, responsibility and honour. They must follow and attend to lawful orders given that they must enforce
and uphold the rule of law according to the sworn oath that each officer swears before a judge when entering into the force.
- With this background, it goes without saying that a Police Officer is expected, whether reasonable or not, to uphold an unblemished
personal record. The Court drawing such local knowledge and experience with human nature is entitled to conclude that it is more
likely than not that the Commissioner of Police is within his powers to terminate the service of the defendant upon a conviction.
But that is not the end of the matter as stated in paragraph 52 above. Whatever the outcome is not for this Court to speculate but
only to consider the degree of possibility and likelihood of a termination following a conviction. I would place this possibility
in the medium to high range.
- The defendant has not submitted that a conviction will hinder and make difficult any future travel. The prosecution have referred
to this in their submissions relying on Zhang. It is therefore necessary to clarify and distinguish the New Zealand situation from Samoa. Police v Rimoni citing the two New Zealand cases of Brunton and Oosterman state that real evidence is required as opposed to speculative possibilities of difficulties with future travel.
- An ordinary Samoan in possession of a Samoan passport would firstly be required to obtain a visa prior to travel mainly to countries
most visited by Samoans like New Zealand, Australia and the United States. That is the first difficulty encountered by a Samoan in
relation to international travel. It is common knowledge that visa applications require the applicant to declare whether they have
been convicted of any offence or offences. This is the second difficulty that will be encountered by a Samoan person with a criminal
conviction who desires to travel overseas. The existence of such a requirement for visa applications and evidence of a criminal conviction
would create a high possibility that a visa would not be granted.
- Comparatively, a New Zealand person holding a New Zealand passport does not encounter the same difficulties. The New Zealand passport
holder allows for visa free entry in many countries of the world. The New Zealand situation cannot be compared to Samoa. I accept
that the court cannot speculate as to whether the immigration authorities will grant or reject the application for entry of a person
with a criminal conviction. But that is beside the point. The issue is whether the defendant holding a Samoan passport is more likely
to encounter difficulties in future travel if he/she were convicted of a criminal offence. I believe the answer is yes and for the
same reason Justice Vaai considered that it was a hinder and difficulty in Police v Fepuleai. This, in my view, is real evidence as to the consequence of such matters in Samoa (refer Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]);
- For those reasons I am satisfied that the direct and indirect consequences of a conviction of negligent driving causing injury would
be out of all proportion to the gravity of the offence.
- The remaining question is whether the court should exercise the discretion to discharge without conviction? Ms Lui submitted as to
the defendant’s previous good character and his unblemished service as a police officer for 8 years. She further pointed to
the defendant’s commitment and value to the service of his village and church. I have been referred by the prosecution in their
memorandum to eight (8) cases involving just negligent driving causing injury. The prosecution have placed much emphasis on the fact
that the defendant was a police officer. However, there were no cases involving police officers. The defendant was not on duty but
was exercising and enjoying his freedom and rights as a citizen of this country to move freely just like any other person. In fairness,
the court must first assess the defendant’s personal circumstances as an individual in the offending before considering whether
his profession as a police officer is a factor for sentence.
- I am required to have regard to the sentencing principles outlined in section 5 and 6 of the Sentencing Act 2016. I am also required to take into consideration relevant matters that I must consider before sentencing. Notwithstanding the general
prevalence of this type of offending in the community and having arrived at the view that this offending was at the low end of the
scale for this type of offence, I am satisfied that this charge would be more appropriately dealt with by a discharge without conviction.
II. Failed to Stop and Ascertain
- The defendant initially pleaded not guilty to this charge and vacated his not guilty plea on the date of hearing. There is no evidence
in the amended summary of facts agreed by the defendant to show as to the reasons for failing to stop and ascertain whether any person
has been injured and to render practical assistance to the injured person including transportation of the person to the hospital.
- The defendant in his interview for the pre-sentence report stated that it was his fear and uncertainty that caused him to continue
without stopping. Ms Lui suggests that the defendant was fearful for his safety and for his job as a police officer being involved
in this accident.
- In Chang v Attorney General, the Court of Appeal stated in paragraph 57 and 60:
- 57. As with the respondent and the Supreme Court Judge, we think that s 44(1) imposes three obligations on a driver where an accident
occurs to a person arising directly or indirectly from the driver’s use of a motor vehicle, namely:
- To stop.
- To ascertain whether a person has been injured; and
- c. To render all practical assistance to the injured person including transportation to hospital where appropriate.
- .......................
- 60. In our view the duration of the stop required by the Act must be measured by the time which is reasonably necessary in the particular
circumstances to enable proper inquiry to be made as to whether anyone is injured and requiring assistance.[7] The requirement is
to be interpreted in such a way as to fulfil the purpose of ensuring that persons who have been injured in an accident arising from
the driving of a motor vehicle will receive assistance and, where appropriate, taken to hospital. All the circumstances must be closely
considered to see whether that purpose has been fulfilled in the particular case.
- It is clear from the agreed set of facts that the defendant did not stop, did not ascertain whether a person was injured (despite
the fact the defendant was aware that his vehicle had just collided with a crossing pedestrian) and did not render assistance to
an injured person. The issue therefore is whether I am satisfied the defendant invoking section 44(6) of the Road Traffic Ordinance 1960 had reasonable grounds to apprehend violence from bystanders if he had stopped.
- The agreed set of facts state that the victim was with friends but it does not state how many and whether they were intoxicated at
that hour of the morning around 12am. The defendant was also accompanied in the vehicle by three of his friends after a night out
at the RSA night club. However, only the defendant is noted in the amended summary of facts to have been drinking.
- On those facts considering the circumstances and applying my experience of human nature in the Samoan society, I am not satisfied
that the defendant did not stop because he was fearful in apprehension of violence from bystanders. The defendant was not alone.
The worst-case scenario if the defendant did stop was the possibility of an all-out brawl as a result of the accident particularly
if alcohol was consumed by both camps up to the time of the incident. I accept that the defendant may have had a flash vision of
his police career in jeopardy because of the accident. However, that is not relevant on this particular point.
- The circumstances of this particular charge are:
- (i) The defendant did not stop and ascertain immediately after the incident.
- (ii) The incident happened after 12am involving the defendant’s vehicle and the victim only negating the possibility of a
domino effect of subsequent accidents with other vehicular road users
- (iii) A head on impact was avoided by the quick actions of the defendant swerving to avoid the victim but unfortunately the victim
reacted in the same direction the defendant was swerving coming into contact with the vehicles side mirror avoiding serious injury
or possibly death
- (iv) The defendant was able to do evasive manourvre as he was not travelling at an excessive speed
- (v) The accident occurred on Main Beach Road in front of the main Police Station and Fire Services when the road was not busy and
the victim was fortunate to have his friends to render assistance
- In applying the interpretation and purpose of section 44(1) and (6) as outlined in Chang v Attorney General to the facts relating to this charge, the above circumstances do not exonerate the actions of the defendant in breach of this offence.
However, the circumstances of the incident as a whole notwithstanding the three charges were fortunate for the defendant and the
victim that it did not result in more severe consequences. Applying a wholistic approach to sentencing of this matter, the fortunate
circumstances minimise the culpability of the defendant as to this offending and place it in the medium range of the gravity of offences.
However, I am of the opinion notwithstanding the medium range of the gravity and culpability of the defendant in the offending, the
direct and indirect consequences discussed earlier of a conviction to the defendant would be out of all proportion to the gravity
of the offence. Accordingly, a discharge without conviction would be appropriate in relation to this charge.
III. Fail to Report an Accident
- The defendant entered a guilty plea in the first instance in relation to this charge. However, I rely on the facts outlined as to
the charge of failure to ascertain and apply the same approach as the Court of Appeal in Chang v Attorney General. The purpose of the provision is to ensure that drivers of motor vehicles are encouraged and must comply with their duty to report
accidents with the intent that it will, inter alia, save lives.
- There is no evidence from the defendant to show that he reported the accident as soon as reasonably practical or no later than 24
hours after the accident (section 44(2) of the Road Traffic Ordinance 1960). I appreciate that human nature dictates our emotions and actions when accidents occur and our own self-interest becomes the primary
concern. Ms Lui in her submissions referred to the defendant’s fear for his position in the Police service and what the consequences
may be at the time of the accident which caused him not to report. It is fortunate for the defendant that the circumstances of the
accident referred in paragraph 77 above immediately brought the matter to the attention of the Police except for the identity of
the driver.
- Respectfully, the defendants primary concern is not the test the defendant must overcome but that he must show that he with all reasonable
expedition reported the accident as provided in subsection (2) of section 44. The prosecution’s submission on sentencing emphasize
the charge of negligent driving causing injury perhaps in their view that being the most serious of the three charges. My decision
above suggests the reverse.
- However, the charge of failure to report is the least of the three charges in terms of severity considering the penalty to be imposed
under section 72A of “... first offence to a fine not exceeding 2 penalty units and in the case of a second or subsequent conviction to a fine not exceeding
4 penalty units or to imprisonment for a term not exceeding 3 months”. Taking into account the circumstances of this case particularly in paragraph 77 and 78 above, I would apply the same consideration
in relation to this charge. I am left with the conclusion that the gravity and culpability of the defendant in relation to this offending
is on the medium degree. I have decided to exercise the discretion in section 69 of the Sentencing Act as I am of the view that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to
the gravity of the offence. Accordingly, the defendant would be more appropriately dealt with by a discharge without conviction in
relation to this charge.
Sentence
- I am satisfied that a discharge without conviction is appropriate given the circumstances of this matter. Accordingly, I sentence
the defendant:
- (i) For the charge of negligent driving causing injury -
- (a) Discharge without conviction; and
- (b) Ordered to pay $300 for court costs before 4pm on the day sentence is handed down; and
- (c) In default 14 days in prison
- (ii) For the charge of failing to ascertain –
- (a) Discharge without conviction; and
- (b) Ordered to pay $500 court costs before 4pm on the day sentence is handed down; and
- (c) In default 28 days in prison
- (iii) For the charge of failing to report –
- (a) Discharge without conviction; and
- (b) Ordered to pay $100 court costs before 4pm on the day sentence is handed down; and
- (c) In default 28 days in prison
- The sentences of monetary fine will be cumulative and subsequent imprisonment in default of payment shall be concurrent.
DCJ SCHUSTER
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