Police v Lemalu [2019] WSDC 6 (26 April 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Lemalu [2019] WSDC 6

Case name:	Police v Lemalu
Citation:	[2019] WSDC 6
Decision date:	26th April 2019
Parties:	POLICE v CHRISTINE LEMALU, female of Siusega
Hearing date(s):
File number(s):	D3041/19
Jurisdiction:	DISTRICT
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	I hereby convict and sentence you to pay a fine of $350 to be paid forthwith. In default, 3 weeks imprisonment
Representation:	K Stanley for Prosecution T Leavai for Defendant
Catchwords:	aggravating features of the offending – guilty plea – influence of alcohol – gravity of the offending – mitigating factors as an offender – sentence
Words and phrases:
Legislation cited:	Road Traffic (Breathalyser) Amendment Act 2009, s. 40(1)(5)
Cases cited:	Police v Papalii [2011] WSSC 132 Fowlie v Ministry of Social Development [2011] NZHC
	Police v Roberts (1991) 1 NZLR Pale v Attorney General (2010) WSSC
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

CHRISTINE LEMALU
female of Siusega
Defendant

Counsels: K. Stanley for Prosecution
T. Leavai for Defendant

Sentencing Decision: 14^th July 2017

SENTENCING DECISION OF JUDGE ATOA-SAAGA

Charge

1. The Defendant appears for sentencing on a charge of Influence of Alcohol in Breath under Section 40(1)(50 of the Road Traffic (Breathalyser) Amendment Act 2009, Section 40(1)(5).

Background

2. The matter was mentioned on the 28^th July 2018. The Defendant entered a guilty plea and was remanded at liberty until 5^th October 2018 for sentencing.
3. On 5^th October 2018 an application was filed for the Defendant to leave the jurisdiction for overseas. Sentencing was set down on 2^nd November 2018.
4. On the 2^nd November 2018, there was no appearance by the Defendant and a warrant of arrest was issued by the Court.
5. On the 5^th November 2018, the Defendant appeared voluntarily and the Warrant of Arrest was set aside and she was remanded to reappear on the 23^rd November 2018 for sentencing.
6. On the 23^rd November 2018, an application for a discharge without conviction was received and was further adjourned to 20^th December 2018 for the hearing of discharge without conviction application.
7. On the 19^th February 2019, Judge Papalii instructed the Registrar for this matter to be relisted on the mentions list and to be referred to any Judge for sentencing.
8. On the 26^th February 2019, I presided over the mentions and adjourned this matter to 5^th April 2019 as Ms Leavai was unavailable. Ms Leavai had a matter before the Supreme Court.
9. On the 5^th April 2019, Judge Schuster adjourned this matter to 26^th April 2019 for Sentencing and to consider the Application for a Discharge without Conviction.
10. On the 11^th April 2019, this matter was recalled before Judge Papalii at 10.00am and it was further adjourned to 12^th April 2019 as Prosecution did not have the file.
11. On the 12^th April 2019, Application to leave Jurisdiction was granted by Judge Schuster with conditions imposed. There was no objection from Prosecution.
12. The matter is now before the Court and I have declined to grant the Application to discharge the Defendant without conviction. The Defendant is to be convicted and fined a sum of $350 to be paid forthwith and in default 3 weeks imprisonment. These are my reasons for my decisions to sentence the Defendant and decline the Application for a discharge without a conviction.

The Offending

13. The Summary of the facts stipulated that on the 27^th July 2018 at 1am, the traffic police officers were conducting a road block at Matautu Uta on Matafagatele Road. A Hyundai Tucson registered number R 1320 was spotted by the Police whilst conducting a road block. The vehicle was driven by the Defendant.
14. Police suspected that she was driving under the influence.
15. She was stopped and a screening test was conducted revealing seventy-five micrograms (75 micrograms). An evidential test was also conducted when she was taken to the police station and the test recorded that she had 75 micro grams of alcohol.

Background of the Accused

16. The Defendant is 44 years of age and an Office Manager at the Australian High Commission. A position that she has held for over 22 years.

Aggravating Features of the Offending

17. Contrary to what has been submitted on her behalf that she was only 17 micro grams over the limit, she was almost double the limit at 75 micro grams.
18. She was driving the vehicle with her daughters, her niece and a housekeeper. I do not accept Counsel’s submission that she was the only victim in this matter. Any person who drives under the influence and over the legal limit irrespective of their good intention exposes willing and trusting passengers to the risk of an accident.
19. The Police suspected that she was under the influence and because of the high level of micrograms her vehicle was left at the Police Station. She retrieved her vehicle the next day and was charged with the offence of driving under the influence. I commend her for following the direction of the police that night to catch a taxi home with her passengers.

Mitigating Features of the Offending

20. Whilst it has been submitted that I should consider that the Defendant had just attended a celebration of an achievement with overseas friends and her daughters and that she had no volunteers to drive her home, she put lives at risk when she made a decision to drive home with all her passengers whilst intoxicated. It would have been best to arrange for a taxi to take them home.

Aggravating features as an offender

21. You have no aggravating features as an offender.

Mitigating Factors as an Offender

22. The Defendant is a first offender.
23. She pleaded guilty at first instance.
24. She is remorseful.
25. She has an impeccable record to date. She has worked for the Australian High Commission Officer for 22 years and currently holds a leadership position. The Defendant’s employer speaks highly of her as a great and reliable leader who is well respected for her professionalism and knowledge. She is a person who they consider as a person of excellent character who is able to make good judgements about her work affairs and personal life.

Discussion

Application for a Discharge Without Conviction

26. Defence Counsel has filed an application for a discharge without conviction under Section 69 and Section 70 of the Sentencing Act 2016. Prosecution has opposed the application for a discharge without conviction on the basis that there is no evidence before the Court that your work and travel will be affected.
27. In assessing whether to grant you a discharge without conviction, I will have to consider whether you meet the test for a discharge without conviction.
28. Prior to the enactment of the Sentencing Act 2016, the Court had adopted in Police v Papalii [2011] WSSC 132 the 3 steps approach for a discharge without conviction which is
    1. The gravity of the offending
    2. Consequences of a conviction and
    100. Whether the consequences are out of all proportion to the gravity of the offending
29. Suffice for the purpose of this matter to state that, under the Sentencing Act 2016, Section 69 and 70 provides for the discharge without conviction. Even though Section 70 stipulates that it is to be used as a guidance, it is mandatory for the Court to consider prior to discharging a Defendant without a conviction that the direct and indirect consequences of a conviction to the Defendant would be out of proportion to the gravity of the offence. Secondly, after considering the test, whether the Court will exercise its discretion to discharge without conviction.

Gravity of the Offending

30. In assessing the gravity of the offending I will have to weigh the aggravating features against the mitigating factors of the offending and as an offender. The Defendant was found with 75 micro grams of alcohol in her blood which is almost double the legal limit. She was driving the vehicle with her two daughters, niece and housekeeper in the vehicle. Weighing that however against the mitigating factors, I will treat the gravity of offending as moderate to low.

Direct and Indirect Consequences of the Conviction

31. It has been submitted on behalf of the Defendant that a conviction will mar her excellent record with her employer and may affect the way her employers sees her. In fact, it may be a black mark that may well affect her employment status.
32. In the Defendant’s affidavit, she stipulated that it will affect her job as her employers expects a high standard of behavior.
33. The letter dated 7^th March 2019 from the Australian High Commission Office informs the Court of the Defendant’s position and the number of years of service. Her position holds diverse roles of responsibilities and that she is well respected by management and colleagues for professionalism and knowledge which she willingly shares. She is a hard worker who works late and is trusted with confidential matters and is not known as one who gossips with colleagues or the wider community. She is also considered to be a person of excellent character who is able to make good judgements about her work affairs and personal life.
34. Notwithstanding the Defendant genuine concerns and fear, the letter from Employer dated 7^th March 2019 does not stipulate that there will be a real risk of the Defendant losing her job or being demoted from her leadership position or that any travelling opportunities will impede if she is convicted of this offence.
35. As Gendall J stated in Fowlie v Ministry of Social Development [2011] NZHC (25^th July 2015 at [23],

“Naturally it is not necessary for the Court to be satisfied that the feared consequences would inevitably or probably occur but there has to be some real risk that they may possibly occur. In this case, other than the fear or concerns of the Appellant, nothing was put before the District Court or this Court to provide any realistic support for those submissions.

36. A mar of excellent reputation is a direct consequence of a conviction for any person who stands before the Court. Even the reputation of ordinary members of the public who do not hold prestigious or influential positions but are respected members of their own community is equally as important to them.
37. What is required by the Court is the provision of evidence to substantiate a direct or indirect consequence of a conviction which is peculiar in a person’s case other than a mar of one’s reputation.
38. A letter from the employer stating the adverse effects of a conviction on her job such as termination or disciplinary actions against her would have suffice.
39. As the submissions does not entail the effect on travel, there is no need to discuss any hindrance on travel despite how relevant that issue is in respect of her position as Office Manager of the Australian Office in Samoa. I am also guided by the Court of Appeal decision in Police v Ropati^[1] in which they stated at[66],

“Nothing requires the courts to try and impose their perception of what the right immigration consequences out to be. That is generally best left to immigration authorities to decide. That said, we would not go so far as to say that adverse travel consequences could never be relevant in a finely balanced case.”

40. After considering the submission provided by the both Prosecution and the Defendant, I am inclined to accept Prosecution submission that there is lack of material before the Court to ascertain whether a conviction will jeopardize her career or hinder travelling opportunities.

Whether the consequences of a conviction are out of proportion to the gravity of the offending

41. As NZ Court of Appeal said in Police v Roberts (1991) 1 NZLR 205 at 210 which was quoted by Justice Vaai in Pale v Attorney General (2010) WSSC 122 at para 15,

"In the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court's discretion if the direct and indirect consequences of the conviction are, in the Court's judgment, out of all proportion to the gravity of the offence. That must be the overriding consideration. The words "out of all proportion" point to an extreme situation which speaks for itself."

42. As there is insufficient evidence to support any direct and indirect consequences of a conviction, the Court is not satisfied that the consequences will be out of proportion to the gravity of the offence.
43. The Defendant has not been able to meet the threshold set by the 3 test approach under the Sentencing Act 2016.
44. An application for a discharge without conviction is hereby declined.
45. The offer to pay costs as a condition for a discharge without a conviction will not be considered by the Court. The imposition of costs to be paid by the Defendant in lieu of a dis charge without conviction must not be regarded as a perquisite for a discharge without conviction. Acceptance of offers by Defendants will marginalise members of the community who appear for a similar traffic offence who cannot afford to pay.

Sentencing

46. There is a parallel between the increasing number of driving under the influence offences and an increasing number in alcohol related vehicle accidents. I commend the Ministry of Police for being vigilant in monitoring drivers of vehicles to ensure that they do not drive whilst under the influence. The lives of the drivers and the public is a paramount consideration and preventing accidents from happening is the responsibility of every person.
47. In assessing what the most appropriate sentence will be, I have had the opportunity to peruse some earlier decisions of the Court involving Defendants Driving under the Influence who are first offenders. All of the matters that I will refer to were given monetary fines of between $350 to $470.00.
48. In 2017, the Defendant with 101 micrograms was convicted and sentenced to pay $350 and in default 6 months imprisonment.^[2] In Police v Hanks (unreported decision 5 February 2016) the Defendant with an evidential test of 70 micrograms was fined $550.00 and in default 5 weeks imprisonment. In Police v Andrew Lemisio (unreported decision, 16^th December 2016) found with 73 micrograms, he was ordered to pay $300.00 and in default 3 weeks imprisonment. In Police v Lipi Leleai Vitolio (Unreported decision 18^th November 2016) he was ordered to pay $470.00 and in default 3 weeks imprisonment.

Conclusion

49. I hereby convict and sentence you to pay a fine of $350 to be paid forthwith. In default, 3 weeks imprisonment.

JUDGE ATOA-SAAGA

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^[1] CA27/18
^[2] Police v Mareko Alefosio (unreported decision 16^th March 2018)