Police v Papalii [2020] WSDC 14 (30 October 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Papalii [2020] WSDC 14 (30 October 2020)

Case name:	Police v Papalii
Citation:	[2020] WSDC 14
Decision date:	30 October 2020
Parties:	POLICE (Informant) v NEPA PAPALII, female of Vaitele-uta and Sapapalii Savaii (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	The defendant is therefore discharged without conviction and ordered to pay Police costs of five hundred tala ($500) within 14 days from the date of this order in default 30 days in prison.
Representation:	I. Atoa for the Informant L. Stevenson for the Defendant
Catchwords:	Driving under the influence of alcohol – police officer – discharged without conviction and ordered t pay costs.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, s. 40(1).
Cases cited:	Chang v. Attorney General [2018] WSCA 3; Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005; Police v Lauina [2017] WSDC 5; Police v. Papalii [2011] 132; Police v Su’a [2014] WSSC 80; Police v Tupou [2018] WSDC 17; Simmons v Police [2014] NZHC 2488.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

NEPA PAPALII, female of Vaitele-uta and Sapapalii, Savaii

Defendant

Representation: I. Atoa for the Informant

L. Stevenson for the Defendant

Date of sentence: 30th October 2020

RESERVED RULING OF DCJ SCHUSTER

1. The accused appears for sentence having entered a guilty plea to the charge of driving a motor vehicle whilst the proportion of alcohol in the defendant’s breath exceeded 40 micrograms of alcohol per 100 millilitres of breath pursuant to section 40(1) of the Road Traffic Ordinance 1960 (as amended and hereinafter referred to as “the Act”). This offence carries a maximum penalty of 50 penalty units (ST$5000) or imprisonment for a term not exceeding five (5) years, or both.

Facts

2. The defendant is a thirty year old female of Vaitele-uta and Sapapalii, Savaii. She is a single mother of a now 1 year old boy and resides with her mother, her sister and her sister’s husband and four of their children at Vaitele-uta. She is the third of four children of her parents. The defendants father worked hard to provide for his children’s education through his motor mechanic repair business and cattle farm. His passing in early 2018 had a severe effect on the family and the defendant in particular.
3. The defendant had a sound early educational background in Samoa. This rewarded her with a scholarship under the AUSAID program to the University of Technology in Sydney Australia to undertake a Diploma of Science and Engineering. She graduated in 2009 and elevated her studies to a Bachelor of Biomedical Science which she completed in 2012. Upon the defendants return to Samoa, she commenced work with the Ministry of Police as a civilian and subsequently sworn as a Police Officer at the end of 2012. She was assigned to the Police Forensics division given her special skills and qualifications and remained with that division to date with her current rank of Corporal.
4. The defendant is described in the pre-sentence report as quiet and seldom associate publicly. She loves and is always at her job but this routine affected her daily familial duties with her family especially her son given the unusual hours and the nature of her work. The pre-sentence report and testimonies from her uncle, family pastor and close family friend describe the environment she grew up in as loving and influenced by the church. As to the offending, they were all shocked and did not believe that the defendant was involved in such intoxicated behaviour.

The offending

5. The accepted facts via her counsel Ms Stevenson state that on the evening of the 11 January 2020 at about 7:30pm, the defendant arrived driving her black Toyota Hilux registration number 16520 to a wedding reception at St Therese, Leauvaa. She consumed alcohol there until about 10:30pm when her friend called her from RSA club to meet there. She ended up at the RSA club in the heart of Apia and drank about 10 bottles of beer.
6. The defendant left RSA club after closure at about 1:50am of the 12 January 2020 and drove down West Coast Road heading west towards her home at Vaitele-uta. The defendant did not realise that she had drove past Vaitele and was at Puipaa village when she lost control of the vehicle because she was tired and fell asleep at the wheel. The vehicle veered into a private property causing damage to part of an unoccupied house and garage. Local villagers who attended the scene immediately after the accident saw the defendant unconscious behind the wheel.
7. Upon the arrival of Police, the defendant admitted that she had been drinking alcohol. An alcohol breath screening test was carried out and the defendant’s reading was measured at 111 micrograms. The evidential test was conducted and resulted in a breath alcohol reading of 85 micrograms, 45 micrograms exceeding the legal limit of 40 micrograms.
8. The defendant on 18 February 2020 entered a plea of guilty through her counsel to the charge and she has no prior convictions.

Aggravating Factors

9. The prosecution submits three aggravating factors: (i) the level of alcohol, (ii) the seriousness of the offending and (iii) the need for deterrence. As to the level of alcohol, the prosecution submits that the level of alcohol that was more than minimally above permissible level constituted an inherently serious offence (see Simmons v Police [2014] NZHC 2488). The prosecution further submit, although clearly separate from the alcohol level factor, that the main purpose of the law was for public safety given the number of traffic offences leading to serious injury or loss of life to unsuspecting road users.
10. Secondly, the five years imprisonment or $5000 financial penalty or both suggests the seriousness of this offence and reflects parliaments concern and intent to deter and publicly denounce like-minded offenders through more severe penalties. Ms Stevenson submits on the other hand that the gravity of the offending is moderate based on the evidential result of 85 micrograms per 100 millilitre of breath. Ms Stevenson relies on Police v Tupou [2018] WSDC 17 (22 June 2018) where DCJ Papalii found that 35 micrograms above the legal limit prescribed by law of 40 micrograms was moderate. What “moderate” means was not defined but clearly measured from the legal limit prescribed by section 40(1) of the Act.
11. However, DCJ Papalii considered that there were extenuating associated factors that would make the defendants breathalyser results moderate such as the manner the defendant was driving, i.e., no accident occurred, no associated damage or personal injuries, etc., which follows that the defendant was in control of the motor vehicle to the standard of a “competent driver” but for the alcohol level of which he was charged. Those extenuating factors distinguishes Tupou’s case from the facts of this case.
12. Finally, prosecution emphasize the deterrent aspect of the law. They suggest the increase in this type of offending and prevalence in Samoa. That may be so. However, prosecution had not offered a measure, standard or study as to show the “increase” of such offending and its prevalence in Samoa so as to apply it as an aggravating factor to the defendants offending in particular. A proper and reliable national data collecting system and quantitative analysis must be undertaken before the courts are to place weighty reliance on such an assumption.
13. Furthermore, under the same heading, prosecution appear to submit that the defendant’s employment as a sworn police officer should have dictated her general behaviour notwithstanding when on and off duty. As a result, the defendant, despite being off duty, still has a duty to be a “good citizen and abide by the law”. What a “good citizen” means had not been advanced by the prosecution other than to measure it against the term of a person who “abide by the law”.
14. On the last point, I must disagree. This would distinctively place an unwarranted discriminatory standard on off-duty police officers from the rest of society. We must bear in mind that off-duty police officers are people too and they try to carry on normal lives outside of their employment obligations and are exposed to the same societal benefits and pressures no different from other members of society. However, if the facts were that the offending occurred whilst the defendant was on duty, I may be more open to the prosecutions position.
15. Finally, there are no aggravating factors personal to the defendant.

Mitigating Factors

16. The defendants early guilty plea is a mitigating factor. It’s indicative of the defendant’s remorse and that she accepts responsibility for her offending.
17. The defendant is also a first offender and has been a law abiding citizen until this traffic offence. The written testimonials and references of her good character show a responsible person who works hard to provide for her child and family particularly after the passing of her father in early 2018. It could only be her dedication, perseverance, obedience and love for her family that she worked hard to obtain an academic scholarship in a challenging and competitive environment.
18. The defendant would have easily obtained employment overseas with lucrative offers based on her specialized academic qualifications but decided to return to Samoa at the end of her studies to serve her country and family. She has diligently and competently served the Police Forensics Division for almost eight (8) years.
19. Police Superintendent Norman Tuafale Meni is the Officer in Charge of the Police Forensics Division. He confirms the defendant’s competency and high work ethic with much regard and describes her work ethic with such words as “selfless”, “meticulous”, “punctual”, “experienced”, “knowledgeable”, “honest”, “trustworthy”, “good judgment”, “dependable”, “reliable”, “administratively sound”, “enthusiastic”, “essential”, “empathetic”, “generous”, “adapt” and a “necessary” for forensic work. The defendant is the Samoan Police Force representative on the “Pacific Forensic Working Group (PFWG)” since 2016. The defendant is also the Secretary since 2017 of the “Pacific Police Fingerprint Specialist Association” (PPFSA). Both these roles require the defendant to attend international meetings on a regular basis. Should this accurately describe the character of the defendant, no doubt she is destined for higher honours within the Ministry of Police barring a conviction record.
20. Further evidence of the defendant’s remorse and responsible character is the fact that she has repaired the damage to the property affected to a standard acceptable to the owners as confirmed by letter dated 27 January 2020 annexed to the pre-sentence report. What amount was involved is unknown but would have been significant as it involved damage to a portion of a dwelling structure.
21. Public embarrassment may also be a mitigating factor. The defendant’s offending had been widely publicized on the media (TV, newspapers, radio and social media) attracting attention to the defendant and her family. The defendant has been a person considered with high regard by her peers and work colleagues. However, this offending would have been of great embarrassment and shame to the defendant having to face her peers and work colleagues not to mention her own family.
22. In addition, the defendant has been suspended without pay since 12 January 2020 and she has had to rely on her siblings and mother financial for day to day necessities. The defendant’s family and close family friends (her mother Fiapaipai Papalii, uncle Fonoti Sitanilei, Deacon Ropati Tuitea and family friend Tagaloasa Uili Matafeo) are shocked as to the offence the defendant has been charged with and this must weigh heavily on the defendant who must have been touted as the pride of the family given her professional and academic achievements.
23. Ms Stevenson has further submitted as a mitigating factor the mental and emotional impact of the nature of the defendants work on the defendant personally. In paragraph 8 of the defendant’s supporting affidavit for a discharge without conviction, the defendant attests that she is struggling to deal with the emotional and psychological trauma of her work particularly violent crimes resulting in death. There is no work place system to assist and counsel field personnel with psychological and mental trauma related work. Given the nature and confidentiality of her forensic work, she has had to cope on her own way. Unfortunately, one of such ways was resorting to alcohol to suppress her psychological dilemma.
24. In a report provided by Dr Seiuliali’i George Leao Tuitama dated 9 September 2020, he diagnosed the defendant as having Substance Use Disorder (SUD) and Post Traumatic Stress Disorder (PTSD) due to the nature of her job dealing with corpses many decomposed, disfigured as well as those of young children. Her coping mechanism of alcohol became normal habit on a daily basis as well as excessiveness, which resulted in occasions losing consciousness and loss of memory. The defendant relayed to Dr Tuitama that she was considering leaving her current occupation in order to avoid re-occurrence of this acquired behaviour. Dr Tuitama has recommended her for continued counselling and psychotherapy.
25. Such substance use disorder conduct as described by Dr Tuitama should have been evident from at least her close family members but no such observation was made. It may suggest that the defendant was leading a concealed second life from that known to her family. There being no response from the prosecution disputing this mental health report, I would have to consider this in favour of the defendant.

Application for a discharge without conviction

26. Ms Stevenson has applied on behalf of the defendant for a discharge without conviction. The law as to an application to discharge without conviction is now well settled in Samoa (see Police v. Papalii [2011] 132 (25 November 2011) and Chang v. Attorney General [2018] WSCA 3 (13 April 2018)). The discretion to grant a discharge without conviction is provided for under section 69 of the Sentencing Act 2016. Section 70 provides that “the Court must not discharge a defendant without conviction unless it is satisfied that the consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”
27. There are three steps involved. The first is that the court must consider: (i) the gravity of the offending; (ii) the consequences of a conviction; and (iii) whether the consequences of a conviction on the defendant would be out of all proportion to the gravity of the offence.
28. The second step is for the court having regard to the circumstances determine whether the overriding discretion to grant a discharge should be exercised.
29. The prosecution had not offered a sentencing memorandum but by way of an opposing response to the defendant’s application, have recommended a conviction, a fine of $500 and disqualification from holding a valid drivers licence for six (6) months.
30. Ms Stevenson has enunciated as grounds for a discharge without conviction that: (i) the gravity of the offending was moderate; (ii) there are direct and indirect consequences of a conviction on the defendant which will jeopardize her employment, promotion and future academic and job aspirations; and (iii) the consequences of a conviction would be out of all proportion to the gravity of the offending.

Discussion

31. As Chief Justice Sapolu as he then was stated in Police v. Papalii and Police v Su’a [2014] WSSC 80 (12 December 2014), the crucial question is whether the consequences of a conviction would be out of all proportions to the gravity of the offending.
32. I have outlined above the aggravating and mitigating factors pertaining to the defendants offending. As to the gravity of the offence, I disagree with Ms Stevenson that 45 micrograms over and above the legal limit was moderate relying on Police v Tupou. Tupou must be distinguished on the facts and personal circumstances of the defendant. This is especially so when DCJ Papalii considered other extenuating aggravating factors that did not arise as having mitigated Tupou’s offending (i.e., no other vehicle involved, no property damage, no real risk to life and the Tupou maintained competent control of the vehicle).
33. As for the defendant in this matter, the accident that followed was highly likely and an expected outcome. In her own sworn affidavit, she stated in paragraphs 11 and 12 that she was tired and fell asleep at the wheel. She only realised what had happened after when she came to be aware that an accident occurred at Puipaa which suggests she was so intoxicated and disoriented she missed the turn to her home.
34. I have taken into account the purpose and principles of sentencing pursuant to section 5 and 6 of the Sentencing Act 2016 concerning accountability, the defendant genuinely appreciating the nature of the offending, denouncing the offending conduct, deterrence, community safety and rehabilitation. The facts of this case would constitute the conduct that Parliament intended to prohibit and prevent.
35. However, despite the gravity of the offending, I must consider the uniqueness of the defendant’s circumstances compared to previous cases where convictions were entered on the basis that the level of alcohol were similar to the defendants. As discussed earlier, the defendant attests that the nature of her work has caused much unattended psychological and mental trauma. This is supported by Dr Tuitama, the Head of Mental Health Services in Samoa. The prosecution had not offered an opposing view to Dr Tuitama’s findings despite the fact that they have been served with a copy of Dr Tuitama’s report.
36. The defendant had resorted to alcohol as an escape valve to deal with her traumatising work particularly with corpses perhaps involved in homicide or traffic accident cases some decomposed and others involving children. For the sake of clarity, this in no way suggests that this exonerates the offending conduct of the defendant. A proven or confessed alcohol level above the legal limit and being in charge of a motor vehicle is the offence and there is no lawful excuse for doing so. However, the defendant is applying for a discharge without conviction and I am required to consider the personal and professional circumstances of the defendant, the reasons, if any, for reliance, dependence or substance (alcohol) abuse.
37. To put it into perspective, the defendant has lived an exemplified private and professional life. She had and continues to have a loving and caring family environment that also accommodated a sound educational foundation. The defendant went on to obtain her desired tertiary qualification and came to be employed within the Ministry of Police that would enable her to put into practice the knowledge and skills she acquired. She was committed and enjoyed her job to the extent that she spent less and less time with her family. It was unfortunate that the work she loved also came to be her personal dilemma having not been trained or prepared to deal with the numerous gruesome and horrific crimes scenes she had to attend. To escalate her situation, there was no system in place within the Ministry of Police to provide support services for field officers traumatised due to the nature of their work.
38. Dr Tuitama’s opinion states that the defendant “... turned to alcohol to help cope with her traumatic experiences to the point where it became a normal habit but unaware of the consequences”. This is not to excuse the conduct of the defendant but to consider the circumstances of the defendant which may have given rise to the offending which is relevant in an application for discharge without conviction.
39. In Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34], referred in Police v Lauina [2017] WSDC 5 (12 May 2017), the High Court stated:
    • “ ... it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.”
40. The defendant is the Samoa Ministry of Police representative in regional Pacific Forensic Working Group and the Secretary for the Pacific Police Fingerprint Specialist Association whom Superintendent Meni states holds an “essential” role. The defendant’s elevation and selection into these regional organisations would have been decisions not taken lightly by the Commissioner of Police entrusting her with confidence that she was more than capable to act on behalf of the Commissioner of Police and the Samoa Police Service. A conviction would pose a real and appreciable risk to the defendant so far as to retaining her current rank. A demotion is a real and appreciable risk. The ultimate decision making is the Commissioner and it is not the courts role to pre-determine such outcome. However, it is the courts role to consider the real and appreciable risk of such an outcome.
41. In the event that is the outcome, it would certainly flow on to affect her standing and facing up to the professional and ethical standards of her law enforcement peers within these regional organisations as well as the trust and confidence that they may have in her.
42. Although there may be a risk of termination following a conviction, I accept the prosecutions submissions that it is not a real and appreciable risk but for the fact that the nature of the offence does not involve grave criminal conduct and/or intent. The defendant’s professional record as referenced by Superintendent Meni is held with high regard and inevitably a vital asset to the criminal investigating arm of the Ministry. Her conduct on the evening of the offending may be labelled as a grave error of judgment but I would minimize that to the degree of her state of mind given her psychological and mental post trauma symptoms as diagnosed by Dr Tuitama.
43. The defendant has been suspended from work without pay since 12 January 2020 to date which not only affected her financially but her family who have invested a great deal in her up-bringing and education. I also accept that the charges have attracted much attention to the defendant and her family and would be a great cause of embarrassment. These however are part and parcel of the public nature of such charges coming before the courts and would not be unique to the defendant.
44. I accept the defendant is truly remorseful as evidenced via her guilty plea, her apology, reconciliation and restitution of the damage to property of Lenitali Aoina Fruean as well as her willingness to submit herself to the National Hospital Mental Health Unit to seek help for her condition.
45. Notwithstanding the legislative guideline for discharge without conviction applications, I am of the view that the law was never meant to dictate the exercise of a judicial officer’s discretion upon considering all the aggravating and mitigating factors whether or not to grant a discharge without conviction should it coincide, or not, with the three step process. If it were so, it would be, in my opinion, to remove the exercise of the judicial officer’s good sense and human intuition to apply a sentence that is fair, just and appropriate based on the particular circumstances of each case.
46. After considering all the facts from both the prosecution and Ms Stevenson, I am of the view that a conviction would not be appropriate in this case as it would be out of all proportion to the gravity of the offending and particular circumstances of this case. It would be a monumental black mark on the record of an exemplary police officer who had sacrificed a great deal to get where she is in a Ministry that is governed by a strict code and requires very high standards. However, the nature of her work and the absence of a system to help the defendant cope with the trauma of her work has led the defendant to this point. It would be an unjust law if it were to understate the particular circumstances of this defendant over the need for strict adherence and consistency of sentencing principles.
47. In saying that, a word of caution for the defendant. It is hoped that the defendant appreciates the opportunity and the second chance given to her to rehabilitate and reintegrate given the seriousness of the penalty of a maximum of five (5) years imprisonment or a maximum of $5000 tala fine or both. The likelihood of imprisonment has far reaching effects not only for the defendant but also her young son and family that depend on her. Life is about lessons learnt and this experience should emphasize the importance of family and the choices that we make that coincides with your Christian religious beliefs and avoid unnecessary hardship to you and your family.
48. The defendant is therefore discharged without conviction and ordered to pay Police costs of five hundred tala ($500) within 14 days from the date of this order in default 30 days in prison.
    

MATAUTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE