Police v Fonoti [2020] WSDC 10 (21 July 2020)

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Case name:	Police v Fonoti

Citation:	WSDC [2020] 10

Decision date:	21 July 2020

Parties:	POLICE v LUPEOMANU PELENATO FONOTI

Hearing date(s):	11 June 2020

File number(s):

Jurisdiction:	Criminal

Place of delivery:	District Court of Samoa, Mulinuu

Judge(s):	Judge Atoa-Saaga

On appeal from:

Order:	Discharge without conviction, also ordered to pay $1,000.00 Prosecution cost

Representation:	Ms. Lupematasila Iliganoa Atoa for Prosecution Aumua Ming Leung Wai for Defendant

Catchwords:	assault – aggravating features of offending – mitigating factors of offending – maximum penalty – sentence

Words and phrases:

Legislation cited:	Crimes Act 2013, Sentencing Act 2016,

Cases cited:	Attorney General v Ropati 15 April 2019, Police v Chang [2018] WSCA, Police v Viane [2016] WSDC 32, v Mc-Cabe [1985]1 NZLR 36, Police v Filifilia Iosefa, Waston v Police [2015] NZHC 2598, Macdonald v R [2019] NZCA 9, Police v Wilson, Police v Paul

Summary of decision:

Representation:
Prosecution represented by Ms. Lupematasila Iliganoa Atoa
Defendant Represented by Aumua Ming Leung Wai

Sentence Hearing: 11^th June 2020.
Additional submissions due: 26^th June 2020
Sentencing Decision: 21^st July 2020

[1] Lupeomanu Pelenato Fonoti, you appear for sentencing after being found guilty of assault. Assault pursuant to Section 123 of the Crimes Act 2013 carries a maximum penalty of one (1) year.

[2] Lupeomanu, you are a 54 year old male of Nuu fou and Saleufi. You are married with 5 children who are all attending school. You were previously employed as the Assistant Chief Executive Officer of the Quarantine Division of the Ministry of Agriculture and Fisheries (“MAF”) a fact that I will refer to in the latter part of my decision.

[3] You and the victim Papalii Panoa Moala are members of the Pesticide Technical Committee (“Committee”) On the 15^th August 2019, you were both attending this meeting and you were conducting the meeting on behalf of MAF and the Chairperson who was sitting opposite you.

[5] You explained that despite the distribution of papers prior to the meeting, Committee members were habitually asking MAF Staff for copies of papers on the day of the meeting.

[6] Papalii became agitated and denied that he was one of the Committee members who habitually fails to turn up with papers. His voice increased in volume.

[7] An argument ensued with you saying “Papalii, you are overtly disrespectful. This is not the first time you have acted disrespectfully in a meeting. You have done it so many times. You come to meetings acting as if you are the chief. It is not difficult to do what you want to do.” (Papalii, ua ova lou le mafaufau, ua fai soo lou amio lea e le faapea e faakasi pe faalua, ua fai soo,kele foi isi fonotaga e ke sau pei a oe o se sifi I totonu I ii.”)

[8] Papalii responded by saying, “What are you searching for? You are talking to the wrong person”. (“O lea le mea ga e ke suesue mai? E sese le kagaka gae e ke fai mai iai^[1]”)

[9] You responded by saying, “Leave it otherwise I will come and punch your mouth. It is not difficult to beat you up.” (“Kuu loa iga ou alu aku iga kui lou guku. E le faigaka le fasiga o oe”) Papalii became upset and agitated and called out to you to come over. He stood up and held up his chair.

[10] You admitted that you lost your patience. You walked over to where Papalii was standing.

[11] You punched him once on the chin. Papalii fell on his back. Other members of the Committee assisted him to sit up. You walked back to your seat.

[12] You were to be sentenced in March 2020 but due to the State of Emergency, your matter was re mentioned in June 2020 to set a new sentence hearing date. The sentence hearing date was scheduled on 8^th July 2020. Your Counsel requested an earlier hearing date. The application was granted and the sentence hearing date was scheduled on the 11^th June 2020.

[13] The Court was informed by your Counsel that your personal circumstances have changed since the matter was last mentioned in February 2020. In February 2020, you were the sole applicant for your position as Assistant Chief Executive Officer of the Ministry of Agriculture and Fisheries. At the time, you were suspended without pay whilst awaiting your sentence.

[14] On 17^th March 2020, you were advised by Public Service Commission to make written submissions pursuant to Section 43(3) of the Public Service Act 2004^[1] on the issue of penalty as I have found you guilty of assault.

[15] The submission was in respect of the appropriate penalty to be imposed under Section 45 of the Public Service Act.^[2] The submission and the outcome of the submission were not disclosed.

[16] Suffice to say by letter dated 26^th May 2020 you were subsequently advised by the Public Service Commission that the Selection Panel has considered you ineligible to be shortlisted for an interview for failing to satisfy the merit factor of personal attributes.

[18] You lodged an application with Food and Agriculture Organisation (FAO) office in Papua New Guinea as a Program Coordinator on the 3^rd February 2020. The application process requires the disclosure of any criminal convictions. As you have not been convicted of any criminal offence, you have indicated on your application that you have no previous criminal conviction.

[19] An email dated 15^th June 2020 from Fata Philip Tuivavalagi, the Assistant FAO Representative in Samoa informs the Court that FAO prohibits the recruitment of any staff with a criminal record regionally or globally.

[20] The victim is Papalii Panoa Moala. He is the former Chief Executive Officer of the Agriculture Store and National Provident Fund. He has held various posts and has been a member of numerous government boards and committees.

[21] He is currently operating his own business which supplies agricultural products including pesticides. He is a Government appointed member of the Committee from the private sector.

[22] According to the Victim Impact Report dated 18^th March 2020, there was no physical injury sustained by the victim. He only felt pain for a period of three weeks around the area beneath his chin where the punch landed. He took an x ray test and the results revealed there was nothing wrong with his chin.

[23] What was profound for the Defendant was the humiliation he suffered from falling on his back after you punched him. He temporarily blacked out for ten seconds. He could not stay longer at the meeting when it was resumed as he was too embarrassed to sit amongst Committee members who had witnessed the assault and his fall. He blames the Chairperson partly for his inability to control the meeting.

[24] Since the incident he has become the taunts of his friends and the subject of his friends’ jokes. Most of his friends are prominent members of parliament and the business community. He has since distance himself from large gatherings and discouraged from applying for positions in government boards and committees. He is concerned that his children will be victimized and carry this as a scar.

[26] You are a Government Official. You not only disrespected another Committee member but your behavior was unbecoming of a Government official.

[27] The assault was occasioned in a workplace. You lacked self discipline and control.

[28] The Victim was humiliated in front of the other Board members when he was knocked off his feet.

[29] Prosecution submits that this was an unprovoked assault. I do not agree. There was an argument resulting in you telling the defendant that he was overtly disrespectful and that you were going to hit him. The victim responded by telling you to come and punch him.

[30] Papalii also stood up when you stood up and walked towards him. He held up his chair.

[31] You have also made reference to prior incidents where the Victim had verbally abused your Staff members requiring your intervention to appease the Victim.

[32] You were previously discharged by the Faamasino Fesoasoani Court for insulting words.

[33] Testimonial from your Church Pastor who has known you for over 40 years speaks of a servant who is faithful in his calling. The elders as representative of your extended family testifies of a matai who gives generously and known for his love, care and commitment to his family. Your club affiliation echoes the same sentiments of a team player who gives and participates fully in community activities.

[34] Testimonial from MAF describes you as a very active senior manager of the MAF team. You are described as an asset to the Organisation because of your many years of technical and management experience which are in addition to your academic qualifications.

[35] You have been a mentor to the CEO and Senior Managers of the Ministry and other Implementing Agencies of the Agriculture Sector Plan. Similarly, you have been leading MAF team in all trade related activities both regionally and internationally. This is further highlighted in your application for the FAO position.

[36] Colleagues outside your workplace speaks highly of you and your work amongst which includes the development of the governance framework in the areas of Plant protection, pesticides, animal health and quarantine.

[37] You were suspended without pay whilst awaiting your court case and outcome of your court case. You have held this position for 12 years and have been employed by Public Service Commission for 20 years.

[38] You have been declared ineligible to be short listed for your position for failing to satisfy the personal attributes. The decision was on the basis of your previous discharge and after you have been found guilty of assault.

[39] Section 6 of the Sentencing Act 2016 stipulates each of the principles of sentencing which the Court must consider. I must consider the gravity of your offending, your culpability and the seriousness of this type of offence as indicated by the maximum penalties prescribed for this offence.

[40] In deciding what the appropriate sentence is, I must take into account the general desirability of consistency with appropriate sentencing level and other means of dealing with defendants in respect of similar circumstances and any information concerning the effect of the offending on the victim.

[41] Principles governing the purpose of sentencing the Defendant includes the need to hold you accountable to the victim and promoting a sense of responsibility thereby denouncing your conduct and deterring you or any person from committing the same offence.^[3]

[42] Through Counsel, you have filed an application for a discharge without conviction under Section 69 and Section 70 of the Sentencing Act 2016. The grounds for filing of your application are:

The Direct consequences of the conviction on your will jeopardise your future and

[43] Prosecution initially opposed the application for a discharge without conviction. After being informed of the change of circumstances, Prosecution has not filed any additional submissions other than reinstating the earlier reasons for opposing the discharge which are as follows:

(a) The gravity of the offending is serious taking into consideration the aggravating factors. The gravity of the offending is at the high end.

(c) Travel impediment is but a feared consequences and that there is no evidence before the Court to confirm that a conviction will have any impact you obtaining visas for travel. The Court should not usurp the role of immigration and customs authorities.^[4]

[44] Prosecution submits that there is no evidence to suggest that a conviction will have any adverse effect or disproportionate impact on the Defendant as he is now unemployed.

[45] Prosecution contends that you have previously been discharged without conviction and should not be given another opportunity to be discharged again without conviction.

“If a defendant is found guilty, or pleads guilty, before entering a conviction and imposing a sentence, the Court must consider whether the Defendant would be appropriately dealt with by discharging the Defendant under Section 69 or convicting and discharging the Defendant under Section 71.”

[47] In Police v Chang [2018] WSCA, the Court of Appeal stipulated at Para (53) that, “It appears from Section 11 that in every case, the Court is to consider the possibility of such a discharge.”

(a) 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.

(iii) loss or damage consequential on any physical harm or loss of, or damage to, property; or

(d) 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.

(e) 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.

[49] Section 70 of the Sentencing Act provides that, “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.

[50] The application by the Court of these principles has been widely discussed and accepted in earlier decisions^[5] so I will not traverse these principles in detail other than to stipulate the principles that were affirmed by the Court of Appeal in Attorney General v Ropati, 15 April 2019, unreported, CA27/18 at [55]

Assess the gravity of the offence, a task which includes having regard to the aggravating and mitigating factors.

Decide whether the consequences would be out of all proportion to the gravity of the offence and, if so,

Exercise a discretion as to whether a discharge without conviction should be the outcome.

[51] You punched the victim once. The victim fell on his back. He did not suffer any physical injuries other than experiencing pain in his chin.

[52] You are a Government Official. You lacked self control and discipline. You not only disrespected another Committee member but your behavior was unbecoming of a Government official. The assault was occasioned in a workplace and the Victim was humiliated in front of the other Board members when he was knocked off his feet. He has become the subject of taunts by his close friends and colleagues.

[53] There was a significant element of provocation. The victim not only challenged you to punch him but he also stood up and held up his chair.

[54] I do concede that the victim raised a valid concern in the inability of the Chairperson to intervene earlier especially when you and the victims spoke with rancor and threats to do harm. Olive was the only person who intervened. There could have been earlier intervention by the Chairperson or any of other public officials when threats were made by either side.

[55] Your Counsel has referred the Court to similar cases where the Court has discharged defendants who were charged with Assault. In Police v Wilson^[6], the Defendant punched the victim and victim sustained bruises and scratches. In Police v Paul ^[7]a high heel was used and the victim required five stitches to her head.

[56] The Court has also discharged Defendants without conviction who have been charged with Actual bodily harm.^[8]

[57] After weighing the offending, aggravating and mitigating factors, I consider the gravity of the offending as low moderate.

[58] After the incident, you were suspended without pay for almost 6 months before the Court case.

[59] After you were found guilty, you were declared ineligible to be shortlisted for failure to meet the personal attributes factor.

[60] Failure to fulfil the requirement of personal attribute will not only affect an application for this position but any other future applications to the Public Service Commission for any jobs in Government Ministries.

[61] You are now unemployed. This is not a feared consequence but is a real and direct consequence.

[62] You are 54 years of age and your productive working life is declining as the years progress.

[63] Your application and eligibility to be shortlisted by FAO will depend on whether a conviction is entered against you.

[64] Your previous travels were directly linked to your former position as ACEO of MAF. You are no longer employed by MAF.

[65] Notwithstanding, you have applied to FAO for a position as a Program Co ordinator in Papua New Guinea which may require you to travel to PNG if you are successful.

[66] As you have applied but have not been accepted yet, I cannot speculate whether there is a real risk that your travel will be hindered. I have not been given any evidence also of any visa requirements in PNG.

[67] I am also mindful that disruptions to travel is no longer a strong determining factor following the Court of Appeal’s decision in Attorney General v Ropati.

WHETHER THE CONSEQUENCES ARE OUT OF PROPORTION TO THE GRAVITY OF THE OFFENDING

[68] You are currently unemployed. A successful career as a long serving, highly qualified, outstanding and valued Public Servant has been brought to an end because you have been found guilty.

[69] The loss of a job has a direct effect on your income and future career path.

[71] You were previously discharged by the FF Court for insulting words. The question is to whether I should take that into consideration when considering whether to grant you a discharge without conviction.

[72] In Police v Viane [2016] WSDC 32, Judge Roma adopted the approach taken by the Court in R v Mc Cabe [1985] 1 NZLR 361 in that the Court should take into consideration a previous discharge if it is for the same type of offending. The principle is not to consider that the person is now appearing before the Court for the same offence but the fact that he had the benefit of being discharged previously. Judge Roma after weighing all the aggravating and mitigating factors, discharged the Defendant without conviction.

[73] In Police v Filifilia Iosefa^[9], Judge Clarke also agreed with this approach particularly if the discharge is for the same offending. Notwithstanding, Judge Clarke declined the application to discharge the defendant without conviction.

[74] Your counsel has argued that the Court should not consider the previous discharge as the previous offending was not for the same type of offending. Further, even if I should consider the previous discharge, I should not be barred from again granting another discharge without conviction as the previous offence was not the same type of offending and was a minor offence.

“I agree with Judge Sinclairs observation that it would be unusual for the Court to consider a third application for a discharge without conviction. The Judge in placing weight on this relied on Swami v Police and Morgan v Police. The offending in the prior discharges in those cases were of the same type as the offending before the Court. The weight of such offending as a factor against a discharge is lessened if the prior convictions are for offending of a different type, as is the case here.’ Thus it is a factor that is to be weighed against a discharge, but in these particular circumstances the significance is limited. I do not consider the earlier offending is an aggravating factor in of itself.”

[76] More recently in Macdonald v R [2019] NZCA 91, French J on behalf of the Court of Appeal of New Zealand stated at para 28,

[77] You were previously discharged for insulting words in FF court. I have decided take that previous discharge into consideration notwithstanding, that I find the previous discharge is of limited significance given that the prior offending was not only of a different offending but was a trifling and a minor offence.

[78] I will exercise my discretion to discharge you without conviction under Section 69.

[79] Lupeomanu, after careful consideration, you are hereby discharged without conviction.

^[1] Section 43 (3) of the Public Service Act 2004 stipulates that, “If the employee is convicted of the offence, the relevant Chief Executive Officer may, after giving the employee an opportunity to be heard on the matter, impose on the employee any of the penalties set out in section 45.”
^[2] Section 45 Penalties –If:
(a) an officer admits the truth of a charge; or
(b) the relevant Chief Executive Officer, after considering the report of the person who carried out the inquiry and any submissions made by the officer, is satisfied that the charge is true, –
the relevant Chief Executive Officer may, after taking into account the service record of the officer, impose on the officer 1or more of the following penalties—
(i) caution and reprimand the officer;
(ii) order that a sum not exceeding $1000 be deducted by way of penalty from the salary of the officer and paid into the Treasury Fund;
(iii) transfer the officer to other duties;
(iv) reduce the classification or the grading of the officer;
(v) reduce the rate of salary of the officer (with or without reduction in grading);
(vi) terminate the employment of the officer.
^[3] Section 5 of the Sentencing Act 2016
^[4] Attorney General v Ropati (Unreported Judgement, Court of Appeal, 15 April 2019)
^[5] Police v Papalii [2011] WSSC 132, Police v Lauina [2017] WSDC 5, Chang v Attorney General [2018] WSCA 3/
^[6] Police v Wilson [2016] WSDC 28
^[7] Police v Paul (unreported Decision of Judge Roma on 7^th November 2016.
^[8] Police v Fepuleai [2015] WSSC 105, Police v Salele [2018] WSDC 14 and P v Ropati [2018] WSDC 9.
^[9] (Unreported decision, Judge Clarke, 30^th September 2016)

District Court of Samoa

Police v Fonoti [2020] WSDC 10 (21 July 2020)