Police v Asofolau [2019] WSDC 4 (22 November 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Asofolau [2019] WSDC 4

Case name:	Police v Asofolau
Citation:	[2019] WSDC 4
Decision date:	22 November 2019
Parties:	POLICE v SIAOSI ASOFOLAU male of Maninoa Siumu.
Hearing date(s):
File number(s):	D2210/19, D2239/19, D2240/19
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Fepuleai Ameperosa Roma
On appeal from:
Order:	You are ordered to pay $300 of prosecution costs and $300 of Court costs. The total sum of $600.00 is to be paid by 2pm next Wednesday, 27th November 2019. Upon full payment, you will be discharged without conviction on all 3 charges.
Representation:	R. Ah Ching for Prosecution M. Soonalole for the Defendant
Catchwords:	aggravating factors – armed with an object – common assault –– discharged without conviction – maximum penalty – mitigating factors –sentence
Words and phrases:
Legislation cited:	Sentencing Act 2016 s69 & 70
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant.

AND

SIAOSI ASOFOLAU, male of Maninoa Siumu
Defendant

Representation: Sgt R. Ah Ching for Prosecution

Mr M. Soonalole for the Defendant

Sentence: 22 November 2019

ORAL SENTENCING OF JUDGE ROMA

The Charges

1. Defendant, you appear this afternoon for sentence on 3 charges. The first is one of common assault, the second is being armed with an object and the third charge is that of throwing an object to the danger of a person.
2. On all 3 charges, you are liable to a total maximum penalty of 3 years imprisonment.

The Offending

3. From the summary of facts by Prosecution and accepted by you through your Counsel, you are 28 years of age, from Maninoa Siumu, and a National Rugby player.
4. The victim of your offending is a 25 year old male, also of Maninoa Siumu and a security guard at the Ocean Club at Maninoa Siumu.
5. The incident from which the 3 charges arise, occurred in the afternoon of 12^th August 2019. The summary states that the victim was on duty and standing by the Ocean Club gate when you walked up to him and strangled him, causing him to suffocate. Not long after you were calmed, the victim’s brother named Sefo arrived with their father to pick the victim up from work.
6. The victim’s brother then approached you, you argued with him and started to pull each other’s shirt. The victim saw what happened and ran over to pull his brother away before they both walked towards their car. It was then that you threw a bottle at their direction. The bottle almost hit their car.
7. In the victim impact report, the victim says that you strangled him and hit his head against the post; and that he suffered an injury to his face which has since healed.
8. In the pre-sentence report you say that the victim was around when you and your friends were drinking at the Club. You had a verbal exchange with the victim before he swore at you. You approached him and pushed him away. You also refer in the report to the time when the victim’s father and a relative came to pick him up after work, and when one of them punched you and threw a rock that hit and injured your face, close to your eye. According to you, it was at that time that you grabbed a bottle which you threw at the direction of the victim and which struck nothing and injured no one.

The Aggravating factors

9. The aggravating factors of your offending are obviously (i) that the offending was alcohol related and (ii) the impact of the assault on the victim.

The Mitigating factors

10. The mitigating factors are:
    • The circumstances of your offending. There is some element of provocation given that the victim swore at you. I bear in mind that not long after you assaulted the victim, you received in return a piece of your own medicine when the victim’s father and a relative came back and assaulted you causing an injury to your face. I also bear in mind that the person responsible has also been charged and dealt with accordingly before the Supreme Court.
    • I also take into account your plea of guilty to all charges at the earliest opportunity.
    • The apology rendered by you and your parents and reconciliation as confirmed in the pre-sentence report. I have also been handed just now a letter from the complainant’s family seeking to withdraw the charges against you.
    • I also take into account your personal circumstances. From the material before me you are 28 years of age and have had a reasonably good education. At one point, you attended the School of Maritime following which you had the opportunity to work on overseas vessels for a year.
      • Since 2014 you have been a regular member of the National 7s Rugby team. In a letter dated 16^th September 2019 from the Samoa Rugby to you produced by your Counsel, it says that your contract with SRU has been terminated. The letter cites as ground for termination, breach of the terms relating to ‘serious misconduct’ and a provision on ‘three warnings’.
      • But even with the termination of your contract with SRU, there is available an opportunity for you to pursue playing rugby overseas for the Harlequin Rugby Club in Melbourne Australia in the new year. Obviously from the material before me, you have had previous playing experience for the club, which its President Mr Brock Parker, speaks highly of.
      • You have also undergone and completed the Psycho Education alcohol and drugs 6 weeks programme with Salvation Army. In the report by the programme, it states that that you have accepted full responsibility for your actions and have developed good insight into the risks associated with the misuse of alcohol.
      • You are also a first offender.

Discussion

11. Mr Soonalole seeks that you be discharged without conviction. His submission is opposed by prosecution who seek that you be convicted and handed a suspended sentence.
12. The discretion for this Court to grant a discharge without conviction is provided for under section 69 of the Sentencing Act 2016. Guidance on how the discretion is exercised is provided by section 70.
13. There are also numerous cases which discussed and decided how the test is applied. Most of those cases are referred to in the submissions of both prosecution and your Counsel. From those cases, there are 4 steps that the Court must take, in determining an application for a discharge without conviction:
    • (i) The Court must assess the gravity of the offending, a task which requires having regard to the aggravating and mitigating factors;
    • (ii) It must identify the direct and indirect consequences of a conviction;
    • (iii) It must decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending;
    • (iv) It must decide whether to exercise a discretion to discharge you without conviction.
14. I approach your application in accordance with those 4 steps

(i) Gravity of the offending

15. Your offending involved pushing and strangling the victim causing a minor injury to the victim’s face which has since healed. It followed a verbal exchange between you 2 where the victim swore at you. The armed with an object and throwing an object charges occurred not long after that and were in response to the victim’s father and relative’s assault of you which also caused a cut to your face. Along with the other mitigating factors, I find that your offending was at the low end of the scale.

(ii) Consequences of a conviction

16. The main consequence of a conviction advanced by Counsel is the adverse impact on the opportunity for you to travel to Australia and play rugby for the Harlequin Rugby club in Melbourne.
17. In the affidavit of the Club’s President, Mr Parker dated 19^th November 2019, he not only speaks of your good character during a previous experience with the Club, but deposes that a conviction would jeopardise the possibility of gaining a visa, that would permit you to work and build a future with your long term partner and family in Melbourne.
18. The Court of Appeal in recent decisions has stated that questions on the impact of convictions on travel are best left for determination by the relevant immigration authorities. In the absence of confirmation from such authorities, I am satisfied on the affidavit of Mr Parker that a conviction in your case would have a direct impact on your application for a visa and ability to travel to Australia to pursue a valuable opportunity in your rugby career and build a future there, following the termination of your contract with Samoa Rugby Union.

(iii) Disproportion between gravity of offence and consequences of conviction

19. I have earlier concluded that your offending was at the low end of the scale. The incident also involved you becoming a victim to more serious offending by the victim’s relatives. There has been reconciliation and the victim’s family has sought to withdraw their complaint. You have completed the 6 weeks’ drug and alcohol awareness programme. You are a first offender and I accept that you are remorseful.
20. I have also found that a conviction would have an impact on your ability to travel to Australia to pursue your rugby career and build a future there following the termination of your Sevens contract with SRU.
21. Weighing those considerations, I am satisfied that the consequences of a conviction would be out of all proportion to the gravity of your offending.

(iv) Overriding discretion

22. On the question of whether the exercise of the Court’s discretion in favour of a discharge without conviction should be the outcome, I am satisfied that it should be.
23. Apart from my finding on the disproportionality between the consequences of a conviction and the gravity of your offending, you have been a prominent member of the National Sevens Rugby team for years. Your contract has been terminated, but another opportunity to pursue and continue your rugby career overseas has presented itself. You deserve a second chance and the Court will grant you that opportunity.

Result

24. You are ordered to pay $300 of prosecution costs and $300 of Court costs. The total sum of $600.00 is to be paid by 2pm next Wednesday, 27^th November 2019. Upon full payment, you will be discharged without conviction on all 3 charges.
25. Are we all clear on the sentence? Ia lelei.
26. Siaosi ou te leiloa pe na e manino i le faaiuga, ae o le faaiuga lenei o lea ua toe maua ai le isi ou avanoa e faaauau ai lau taleni e pei ona faamanuiaina ai oe, ma e ao ona e faaaogaina tatau avanoa nei. Avanoa foi nei atonu e taamilo faalua mai ae sea sea sau i le faatolu poo le faa fa foi. Faaaoga tatau la le avanoa ua tuuina atu e le Faamasinoga. Ua e malamalama, ia lelei, faafetai ua maea

JUDGE FEPULEAI A. ROMA