Police v Mautofiga [2020] WSDC 4 (16 July 2020)

DISTRICT COURT OF SAMOA
Police v Mautofiga [2020] WSDC 4

Case name:	Police v Mautofiga
Citation:	[2020] WSDC 4
Decision date:	16 July 2020
Parties:	POLICE v LEOLOA TUUU MAUTOFIGA female of Siumu and Matautu
Hearing date(s):
File number(s):	D2860/19, D2862/19, D2863/19, D2864/19, D2865/19, D2866/19
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa
Judge(s):	Judge Loau Donald Kerslake
On appeal from:
Order:	In sentencing, I take into account the totality principle and adopt charge D2860/19 which is the assault causing actual bodily harm charge on the victim BL. On this charge, the accused is hereby convicted and ordered to come up for sentence within 6 months. In relation to the five (5) remaining assault charges, the accused is also convicted of these charges and ordered to pay court costs of $200.00 to be paid to the Court before 3.00pm tomorrow Friday 17 July 2020.
Representation:	Inspector K. Komiti for Prosecution Ms L. Tamati for the Accused
Catchwords:	the charges – the facts – the law – gravity of the offence - sentence
Words and phrases:
Legislation cited:	Crimes Act 2019 s119(1), s123 Sentencing Act 2016 s5, s6 Education Act 2009 s2, s23, s23(3), s23(3A) Education Amendment Act 2019 (No. 5) Infants Ordinance 1961 s14
Cases cited:	Police v Lagaaia [2017] WSDC 23 Police v Panapa [2016] WSDC 14 Police v Paleaae [2015] WSDC 203 Chang v Attorney General [2018] WSCA 3 (13 April 2018) Police v Papalii [2011] 132 (25 November 2011) Police v Patu [2020] WSDC 3 Police v Salele [2018] WSDC 14 Police v Lauina [2017] WSDC 5 Meredith v AGREEMENT [2017] WSSC 48 Police v Amituanai [2017] WSSC 49 Attorney General v Ropati [2019] WSCA 2 Police v Asofolau [2019] WSDC (22 November 2019)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Informant

AND

LEOLOA TUUU MAUTOFIGA female of Siumu and Matautu.
Defendent

Representation: Inspector K. Komiti for Prosecution
Ms. L Tamati for the Accused

Decision: 16^th July 2020

SENTENCING OF DCJ KERSLAKE

INTRODUCTION

1. The accused appears for sentencing for:
   • (a) one charge of causing actual bodily harm pursuant to section 119(1) of the Crimes Act 2013 (“the Act”) which carries a maximum penalty of a term of imprisonment not exceeding seven years; and
   • (b) five charges of assault pursuant to section 123 of the Act which carries a maximum penalty of a term of imprisonment not exceeding one year for each charge.
2. Through Counsel, the accused entered a guilty plea to the charge of causing actual bodily harm as early as 4 February 2020 when the charges had been finalized, but entered not guilty pleas to the remaining assault charges. On 10 June 2020 the accused through counsel vacated her not guilty pleas to all the assault charges and changed her plea to guilty.

THE FACTS

3. The accused is a forty-nine (49) year old female from Siumu who resides in Matautu Falealii. She is married with seven (7) children and is employed as the Principal for Palalaua Secondary School (“the school”) at Siumu. There are six (6) different victims of the offending who except for one are all students of Palalaua. Due to the ages of the victims who are 18 years and younger, I make a suppression order prohibiting the publication of their names.
4. According to the Summary of Facts, the victims were called to the Principal’s Office whilst at school on Wednesday 9 October 2019 due to pictures which had been posted by them on Facebook. It is a rule of the school that no pictures are to be uploaded of students wearing their school uniform. The pictures that had been uploaded on Facebook were photos of the victims wearing their school uniform. The accused then questioned the victims as to why they had posted the pictures. Unsatisfied by the responses she received, the accused proceeded to punish the victims. The accused proceeded to strike the victims using a short hose. The victim BL received the most severe punishment and was struck several times on different parts of his body. The other five (5) victims were each struck only once on their buttocks.
5. The accused was therefore charged with one charge of causing actual bodily harm to the victim BL and five charges of assault for the other five victims who she had only struck once on the buttocks.
6. On 30 June 2020, Defence counsel filed an application to discharge the accused without conviction with a supporting affidavit sworn by the accused. A response to the said application dated 6 July 2020 was filed by the Prosecution. In essence, the Prosecution has indicated a neutral position in relation to the application to discharge without conviction and left it to the discretion of the Court.

THE LAW

7. Section 5 of the Sentencing Act 2016 sets out the purposes for which the Court may sentence the accused. These include:
   • (a) to hold the defendant accountable for harm done to the victim and the community by the offending;
   • (b) to promote in the defendant a sense of responsibility for, and an acknowledgment of, that harm;
   • (c) to provide for the interests of the victim of the offence;
   • (d) to denounce the conduct in which the defendant was involved;
   • (e) to deter the defendant or other persons from committing the same or a similar offence;
   • (f) to protect the community from the defendant;
   • (g) to assist in the defendant’s rehabilitation and reintegration.
8. Section 6 of the Sentencing Act 2016 sets out the principles of sentencing which the Court can take into account when delivering its sentence. These may include taking into account the gravity of the offending including the degree of culpability of the accused, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels for similar circumstances amount others.

C.1 Corporal Punishment

9. This case involves an act of actual bodily harm and assault on students whilst in school. For this reason, it may be prudent to consider the Education Act 2009 and the issue of corporal punishment and whether it may have any bearing on sentencing.
10. Section 2 of the Education Act 2009 defines corporal punishment as “the application of physical force in order to punish or correct the recipient, but does not include the application of force only to prevent personal injury to, or damage to or the destruction of property of, a person (including the recipient);”
11. The recently amended section 23(3) of the Education Act 2009 now allows for corporal punishment in schools. (See the Education Amendment Act 2019 (No.5). it states that “any teacher for a secondary school is justified in using reasonable force on a child attending the school if the force is used in a reasonable circumstance which includes but is not limited to (a) preventing or minimising harm to the child or another person; or (b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or (c) preventing the child from engaging or continuing to engage in threatening, offensive or disruptive behavior”.
12. A newly incorporated section 23(3A) of the Education Act 2009 then states that “for the purpose of subsection (3) the use of any object by a teacher to impose force does not amount to reasonable force”, (Emphasis added). Section 23(3A) of the Education Act 2009 then makes it a criminal offence if a teacher uses an object to impose force on a child.
13. There is also a provision in section 14 of the Infants Ordinance 1961 which gives the right to a parent or teacher or other person in lawful control to administer reasonable punishment of a child under the age of 18. When considering the question of reasonable punishment in a teacher – student scenario, section 14 of the Infants Ordinance 1961 should be read and interpreted in light of the definition of corporal punishment pursuant to section 23 of the Education Act 2009 as amended.
14. It is undisputed that an object (a hose) was used by the accused when committing the offences on the victims. In essence, the mere use of an object in inflicting punishment on the victims immediately disqualifies her actions as falling within the ambit of “reasonable force” as allowed by the relevant legislation discussed above. In other words, her actions were clearly unlawful and in breach of section 23 of the Education Act 2009 and therefore cannot be classified as “corporal punishment” permissible by law. Perhaps this was the reason why the accused correctly changed her plea in relation to the assault charges. In light of this, it is unnecessary in this decision to canvass the different scenarios where an assault by a teacher on a student may be qualified as being within “reasonable force”. That is a matter best left to be argued another day.
15. Notwithstanding the above, the Court has dealt with matters which involved assaults by teachers on students. In Police v Lagaaia [2017] WSDC 23, Her Honour Judge Viane Papalii determined that a slap to discipline a disobedient, irrepressible and unruly student qualified as reasonable force pursuant to section 14 of the Infants Ordinance 1961. As a result she granted an application for a discharge without conviction. In Police v Panapa [2016] WSDC 14 the accused had used a machete (sapelu) to hit the cheek of the victim causing lacerations. Justice Clarke viewed the offending as serious and in breach of s23 Education Act 2009 which at the time forbid corporal punishment. The accused was convicted and sentenced to 4 months imprisonment. In Police v Paleaae 2015 WSSC 203, Her Honour Justice Tuatagaloa dealt with a charge of actual bodily harm against one student where a broken chair was used by the defendant and assault on another student where a stick was used. Justice Tuatagaloa observed that the use of a weapon, continuous assault, degrading and humiliating treatment and injuries sustained by the victims were aggravating factors. The accused was sentenced to 10 months imprisonment.

C.2 Law relating to an Application for a Discharge without Conviction

16. It is also clear from section 11(1) (a) of the Sentencing Act 2016 that in every case the Court is to consider the possibility of a discharge without conviction. (see Chang v. Attorney General [2018] WSCA 3 (13 April 2018).
17. The law as to an application to discharge without conviction is well settled in Samoa (see Police v. Papalii [2011] 132 (25 November 2011) and Chang v. Attorney General [2018] WSCA 3 (13 April 2018)) and Attorney General v Ropati [2019] WSCA 2. Also refer to Police v Patu [2020] WSDC 3; Police v Salele [2018] WSDC 14; P v Lauina [2017] WSDC 5; Meredith v AG [2017] WSSC 48 and P v Amituanai [2017] WSSC 49.
18. The approach has been summarised in various ways, one useful approach is to break it down into four steps (see Attorney General v Ropati [2019] WSCA 2). Here, the Court must:
    • (i) Assess the gravity of the offence, a task which includes having regard to aggravating and mitigating factors;
    • (ii) Identify the direct and indirect consequences of conviction;
    • (iii) Decide whether the consequences would be out of all proportion to the gravity of the offence; and if so
    • (iv) Determine whether the overriding discretion to grant a discharge without conviction should be exercised.

DISCHARGE WITHOUT CONVICTION

D.1 Gravity of the Offence

19. In assessing the gravity of the offence, I must take into account the relevant aggravating and mitigating factors, the circumstances and totality of the offending, the purpose and principles of sentencing and any other factor that might affect the Court’s assessment of the degree of culpability of the accused.
20. I find that the following aggravating features were present in the offending. Firstly, there were six (6) separate victims who were involved in the offending. Secondly, the offending constituted acts of violence. It is clear that the acts of assault on all the victims were not justified in any way and were violent especially towards the victim BL who was hit multiple times. Thirdly, there were a number of distinct acts of violence. There was at least one act of violence each towards five (5) of the victims and multiple acts of violence against the victim BL. The accused explains elaborately in her affidavit that the reason she punished BL differently from the other victims was because she is related to him and sees him as a son. This was also not the first time where he had got into trouble with school rules. Regardless of all the reasons provided, this does not and should not justify the violent act which she committed on him. Fourthly, the use of a weapon (a short hose) aggravates the offence. Any use of a weapon should not be tolerated. Another aggravating feature inlcude the injuries suffered by the victim BL. It is clear from the photos which were handed up to the Court that the victim BL suffered bruising and swelling to his face, shoulders, backside, arms and legs. The injuries in the photos were confirmed by a medical report prepared by the attending registered nurse who described the injuries suffered by the victim BL as including bruises at back, both shoulders, right eye and abrasions at right thigh and swelling and painful right elbow. Of serious note is the fact that at least one strike connected with the area around the eye which is a vulnerable part of the body. Defence Counsel was given the opportunity to respond to the photos and medical report. Initially, she appeared to be objecting to the medical report on the basis of its veracity given it had not been tendered as evidence. When asked whether she would be disputing the medical report and the photos she conceded that “it is what it is” and that she would leave it for the assessment of the Court. Another aggravating feature is the humiliation which was suffered by the victims especially the victim BL as they were struck by the accused in front of each other. Finally, there was some level of premeditation as the accused admits that she was angry at the victims beforehand, especially BL and wanted to punish them.
21. I accept that the following factors will mitigate the offending: Firstly, her guilty plea. It is noted that she entered a guilty plea to the causing actual bodily harm charge at the first reasonable opportunity. She vacated her not guilty pleas to the five (5) separate assault charges much later on 10 June 2020 and entered pleas of guilty. Notwithstanding this, entering guilty pleas to all the charges has saved the Court and Prosecution the time and costs associated with a trial. Secondly, she is a first offender and has a good character with an unblemished record evident by the many favourable testimonials from members of the community as provided in the probation report. In her role as Principal, she is highly regarded by members of her staff as well as the Chief Executive Officer for the Ministry of Education, Sports and Culture. She also holds responsible roles in her church and village community. Thirdly, she has apologized and reconciled with the victims and their families as evidenced in her affidavit and also the letters which have been provided to confirm this. This also demonstrates that she is indeed genuinely remorseful. Finally, it is without a doubt that this incident has brought shame to her personally as well as her family.
22. Defence Counsel submits that the gravity of the offending should be at the lower end of the scale and refers to the cases of Police v Salele [2018] WSDC 1 (12 April 2018) and Police v Asofolau [2019] WSDC (22 November 2019) in support of her proposition. These two cases are distinguishable from the present matter. Firstly, in the Asofolau case, the most serious charge was common assault. There was only one victim and there was present an element of provocation. In the Salele case, there was only one victim and it was determined by the presiding Judge that the defendant was highly provoked by the actions of the victim. Both cases also did not involve assault on children.
23. Taking into account all the circumstances above, I agree with the submissions of the Prosecution and find that the gravity of offending for the causing actual bodily injury charge is at the mid-range. In respect of each assault charges individually, I find that the gravity of the offending is at the lower end of the scale. However, in totality, the gravity of the offending for all the charges is at the mid-range.

D.2 The direct and indirect consequences of a conviction.

24. The accused in her affidavit speaks to a distinguished career as a teacher which has accrued to her position as principal of Palalaua College. She states that she is currently suspended but her contract has ended. She wishes to re-apply for her post but there is the real possibility that she may lose her job if a conviction is entered against her. Reference has also been made to the relevant section of her contract as Principal of Palalaua College under section 21(3)(iv) whereby “the Commission may terminate her contract with neither notice or payment instead of notice if she is convicted of any offence that is viewed by the Commission to be serious”.
25. Unfortunately, if the contract of employment for the accused has indeed ended as per paragraph 21 of her affidavit and paragraph 29 of the submissions of the Defence, then section 21(3)(iv) of her Contract is no longer relevant and no longer applies. I do accept that there is still a threat that she may not be shortlisted for her post if she reapplies and a conviction is entered against her name. However, there is also nothing before the Court to suggest that a conviction on her record will automatically disqualify her from reapplying for her job again.

D.3 Disproportion between gravity and consequences

26. I had earlier reached the conclusion that the gravity of the offending for the causing injury charge was at the mid-range on the scale of offending whereas for the individual assault charges it was at the lower end of the scale. If assessed together, then the offending by the accused was serious. It involved six different victims and many distinct acts of violence. In relation to the injuries suffered by the victim BL, strikes were aim at his head. As to the indirect and direct consequences of a conviction, it is clear that her contract as Principal has ended and therefore her service cannot be terminated if it is already at an end. I am also not overly persuaded that a conviction on the record will automatically disqualify her from reapplying and being selected for her job. That is a matter for the administrators responsible for the appointment of the role of principal and no document has been provided to the Court suggesting that she will not be considered if a conviction is recorded against her name. As stated in Ropati, “it is not the function of the Courts to conceal offending from proper authorities by declining to enter convictions where they would otherwise be appropriate”.^[1] Moreover, in light of my findings in relation to the gravity of the offending, if I was to grant a discharge without conviction, I would be sending the wrong message to society agreeing that violent acts committed against children may go unpunished. I therefore conclude that the consequences (direct and indirect) of a conviction will not be disproportionate in light of the gravity of the offending.

D.4 Overriding Discretion

27. Due to the conclusion which I have reached above, it is unnecessary for me to decide whether to exercise any statutory discretion to grant a discharge without conviction in relation to the charges before the Court.

SENTENCE

28. In the event the application for a discharge without conviction is unsuccessful, Counsel for the accused has requested a non-custodial sentence. The prosecution has indicated a neutral position on the application for discharge without conviction but offer no position on an alternative sentence. Taking into account the aggravating and mitigating factors as well as the personal circumstances of the accused, I find that a custodial sentence is not appropriate. This is an unfortunate incident where anger got the better of the accused and as a result she will now have to suffer the consequences.
29. In sentencing, I take into account the totality principle and adopt charge D2860/19 which is the assault causing actual bodily harm charge on the victim BL. On this charge, the accused is hereby convicted and ordered to come up for sentence within 6 months.
30. In relation to the five (5) remaining assault charges, the accused is also convicted of these charges and ordered to pay court costs of $200.00 to be paid to the Court before 3.00pm tomorrow Friday 17 July 2020.

JUDGE LOAU D. KERSLAKE

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^[1] Attorney General v Ropati [2019] WSCA 2 referencing R v Foox [1999] NZCA 281; [2000] 1 NZLR 641 (CA) at [39]; Zhang v Ministry of Economic Development NZHC Asher J 17 March 2011 at [14].