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Police v Schuster [2021] WSDC 9 (15 October 2021)


IN THE DISTRICT COURT OF SAMOA
Police v Schuster [2021] WSDC 9 (15 October 2021)


Case name:
Police v Schuster


Citation:


Decision date:
15 October 2021


Parties:
POLICE (Informant) and TOEOLELESULUSULU CEDRIC SCHUSTER, male of Vaoala and Satapuala (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
You are discharged without conviction but subject to the following:
  1. You are ordered to pay Court costs in the sum of $2000.
  2. These costs must be paid by 22 October 2021.
  3. Your matter will be recalled on the same date at 10.30am before me for you to provide proof of payment. Once received you are discharged without conviction. Failing which I will definitely enter a conviction.


Representation:
Ms I Atoa for the Prosecution
Ms M Lui for the Defendant


Catchwords:
Discharge without conviction
Disproportionate test under s69 & s70 Sentencing Act
Driving under the influence of alcohol
Reckless Driving
Loss of seat as member of Parliament
Ineligibility to run at next General Election


Words and phrases:


Legislation cited:


Cases cited:
AG v Sefo [2018] WSCA 16;
AG v Ropati [2019] WSCA;
AG v Precious Chang [2018] WSCA;
Basnyat v NZ Police [2018] NZCA 486;
Clarabal v NZ Police [2020] NZHC 1518;
DC v R [2013] NZCA 255
Edwards v R [2015] NZCA 583;
Fonotoe Pierre Meredith v Attorney General;
Ho v R [2016] NZCA 229;
Iosefa v Police HC Christchurch CIV-2005-409-64,2 21 April 2005 at [34];
Ji v R [2015] NZCA 308 at [45];
Lechner v Police [2013] NZHC 1166;
Linterman v Police [2013] NZHC 891;
Meredith v AG [2017] WSSC 148
Muraj v Police [2016] NZCA 279 at [9];
Ovtcharenko v NZ Police [2016] NZHC 2572;
P v Annandale [2017] WSDC 15;
P v Apulu Laniselota Polu [2020] WSSC 42;
P v Asofolau 2019 [WSDC] 4;
P v Charlie Westerlund (Unreported Preliminary Ruling of J Saaga delivered on 9/09/21);
P v Christine Lemalu [2019] WSDC 6;
P v Fonotoe Pierre Meredith (unreported decision of J Vaai delivered on 14 April 2014.
P v Lagaia [2017] WSDC 23;
P v Levi and Keil [2018] WSDC 15;
P v Lilo Lauina [2017] WSDC 5;
P v Malele Paulo [2019] WSDC 3;
P v Taituave (Unreported ruling of J Viane Papalii delivered on 13/09/19);
P v Papalii & Moalele [2011] WSSC 132;
P v Salele [2018] WSDC 14;
P v Tupou [2018] WSDC 17;
Tupu v Police [2014] NZHC 743;
R v Harney [1987] NZCA 86; [1987] 2 NZLR 576;
R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [52];
R v Lawrence [1982] AC 510 pp 526 to 527;
Rex v Sussex Justices [1923] EWHC KB 1; [1924] 1 KB 256;
Roberts v Police;
Zhang v Ministry of Economic Development HC Auckland CRI -2010-404-453, 17 March 2011 at 14; Z v R [2012] NZCA 59


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


TOEOLESULUSULU CEDRIC SCHUSTER male of Vaivase-utaVaoala and Satapuala


Defendant


Representations:
Informant Ms I Atoa for the Prosecution
Defendant Ms M Lui for the Defendant
Ruling Date: 15 October 2021


SENTENCING RULING

Introduction

  1. The 1st of June is a national public holiday of significant importance, celebrated annually in Samoa to commemorate our Independence Day. However, for two consecutive years, Samoa have not celebrated this special occasion in the usual traditional manner due to COVID-19 State of Emergency Orders. Rather, a public holiday was declared and our people celebrated as they chose.
  2. For the accused, Toeolesulusulu Cedric Schuster (“Schuster”), the first anniversary of their political party, Faatuatua i le Atua Samoa ua Tasi (“FAST”) also falls on the same date (1/06/21). FAST celebrated these two occasions with a party held at the Maota o Samoa (“Maota”) premises at Vaitele-uta (“the Party”). Schuster attended the party where he consumed alcohol and in the evening he got in his vehicle and drove off via Vaitele Road towards the Apia easterly direction aiming for his residence at Vaoala.
  3. However, whilst on Vaitele road, a Police patrol vehicle observed his bad manner. They chased after him and he responded by stopping for a short time but then took off again. Police continued their pursuit and caught up with him in front of Vaimoso Primary School. He was suspected of being under the influence of alcohol whilst driving (“DUI” and breath testing procedures were undertaken including the evidential test which returned a reading of 66 micrograms.

Charges and Plea

  1. Schuster was subsequently charged with three traffic related offences namely:
  2. Schuster pleaded guilty to all three charges at the second mention on 20/07/21. He also indicated via his counsel that he would be filing a discharge without conviction application (“the Discharge”).

Brief Procedural History

  1. Following his second court appearance for arraignment and entry of guilty pleas, the matter was then adjourned for one week to 26/07/21 for sentence, a summary of facts (“SOF”), discharge application (“the Discharge”) to be filed and for Prosecution to reply to that application. By the next calling on 26/07/21 before me, the original SOF dated 23/07/21 signed by the former Attorney General was on file as well the discharge application. I had noted on the occasion the speed with which the matter was expedited. But there were obvious red flags such as the involvement of alcohol which impacted on the bad manner of driving as well as the previous conviction.
  2. Given the combination of the charges exacerbated by the involvement of alcohol, rehabilitation via an interventional therapeutic treatment to gauge alcohol usage was a concern. So Schuster was referred to the Probation service for screening and for his matter to be re-mentioned the next day 27/07/21 for the results. This is not novel as this Court have been adopting this approach in alcohol related traffic offences with a reading of 70 mgs upwards even those with lower readings but with a combination of other charges. Accused from all walks of life including the ordinary farmer from kua have been referred for screening and there was nothing special about Schuster’s case to exempt him from referral.[1]
  3. At the next calling, Probation recommended Schuster attended the Salvation Army psycho-education programme for 6 weeks to commence on 04/08/21 and this was ordered accordingly. Simultaneous orders were made for Ms Lui to file copies of case authorities she relied on in the discharge application and Prosecution to file their response to that application by 27/08/21. Ms Lui also informed on that occasion that the defence have some issues regarding the SOF. To assist, Ms Atoa for the Prosecution offered to disclose the witness statements from which the material facts derived. The matter then stood adjourned for sentencing on 20/09/21 provided the parties resolve the disputed facts.
  4. By letter dated 18/08/21, Ms Lui sought for the matter to be called for mention to set a date for hearing the disputed facts as the parties could not agree on the contested aspects namely paragraphs 5, 10 and 11. So it was recalled on 24/08/21 where it was further adjourned to 14/09/21 for hearing the disputed facts. This date was suitable to all parties but it seems a few days later, the first sitting of Parliament was announced for the same date (14/09) which meant an adjournment was highly likely. In the afternoon of Monday 13/09, the judiciary received notification that the Courts would be closed to the public the next day, the 14th due to Police operations for Parliament sitting. So proceedings were deferred.
  5. A meeting in chambers was called with counsel on 16/09/21 for the purpose of scheduling a new date for the disputed fact hearing. At this meeting however, both counsel informed that they have now agreed on amendments to paragraphs 5, 10 and 11 as reflected in the amended SOF dated 13/09 Ms Atoa submitted in chambers. On this occasion, Ms Atoa had also informed that Prosecution would be seeking an amendment to the reckless driving information. I directed that the proposed amendment is to be done in open Court at the next calling. It was also noted that by this time, Prosecution still had not filed their sentencing memorandum that was due on 27/08 and no extension sought. The explanation from Ms Atoa was she had to wait for the conclusion of the disputed fact hearing. Prosecution was given an extension to comply by 22/09. The sentencing date was rescheduled to 1/10/21.
  6. Upon perusal of the Prosecution’s sentencing memorandum, there were some important issues of concern relating to their sentence recommendation. So both counsel were informed of this by email and that I will hear from counsel on their sentencing submissions on 1/10/21 with a new sentencing date to be scheduled after that. On the morning of hearing submissions, I received in chambers a 2nd supplementary submissions by the Defence objecting to the Prosecution’s recommendation. After hearing oral submissions, the matter stood adjourned to today for sentence.

The Facts

  1. The amended SOF was with the agreement of the both sides and it reflects crucial and key changes to material facts in paragraphs 5, 10, 11 and 12 of the original SOF as depicted in the table below in verbatim:
Paragraph
Original Summary of Facts of 23/07/21
Amended Summary of Facts of 13/09/21
5
When the defendant’s car arrived at the road hump located in front of the latter Days Saint Temple at Pesega he was driving in a swerving manner and approaching the traffic lights at the three way intersection near the said temple
The defendant’s car arrived at the road hump located in front of the
Latter Day Saint Temple at Pesega, he was approaching the Traffic lights at the three corner intersection near the said temple
10
Whilst the defendants car was on the reserve lane, another vehicle (white) was travelling on the inside lane approaching the direction of the traffic lights at the Vaimoso four way intersection
Whist the defendant’s car was on the reserve lane, he immediately turned back onto the main road in the inside lane without an indicator light turned on
11
As the other white vehicle approached to pass by the defendant’s car parked on the reserve, the defendant’s car almost collided with the approaching moving white vehicle.
The defendant upon being on the main road again, drove straight ahead through the Vaimoso four way intersection, when the traffic light was had turned orange
12
That upon being on the main road again, the defendant’s car drove straight ahead through the Vaimoso four way intersection when the traffic lights had just turned red.
The Police caught up to the Defendant’s car and managed to stop the defendant’s car in front of Vaimoso Primary School past the traffic lights.
  1. The amended SOF diffuses the aggravation of the offending and basically bolstered a most favourable SOF for the defendant. The amended SOF presently reflects that:
  2. I cannot feign ignorance of the changes to the SOF especially since Prosecution had previously maintained the stance, that they have evidence to substantiate the material facts relied on and hence their concession to a disputed fact hearing. In fact, Ms Atoa had even offered to serve the defence with witness statements from which the disputed facts derived. As I observed above, the changes are not insignificant as the edited facts were critical aggravating factors. The timing too of the Prosecution’s change of heart on 13/09 is cause for pause; but it also explains why by this date the Court had not received any trial documents in anticipation of the disputed fact hearing. Whilst I accept Prosecution have the sole prerogative on how to pursue its case, they must do so with impartiality and independence.
  3. That being said, this Court is bound by the amended facts as required under s17(1)(a) & (b) of the Sentencing Act 2016 (“Sentencing Act”) which provides that a Court may accept any facts agreed on by Prosecution and Defence, and must accept as proven all facts expressed and implied that are essential to a plea of guilt.

Accused

  1. Schuster submitted an affidavit traversing his personal background. He is 54 years old, married with four children. He holds the chiefly matai titles of Toeolesulusulu from Satapuala and Su’a from Fasitoo-uta and is a deacon for the Apia Protestant Church. He is an environmentalist by profession with 30 years’ experience in that field and operates a consultancy firm as a sole trader specialising in environmental issues such as climate change and sustainable development. He is the elected Member of Parliament (“MP”) for the Aana Alofi No 4 electorate following the 9th April 2021 General Election.

Victim

  1. The victim is the State.

Application to Discharge without Conviction

  1. I will be addressing you directly Schuster from here. You have filed an application for a discharge pursuant to sections 69 and 70 Sentencing Act 2016. Ms Lui cited a number of cases she obtained from the Court database to support the discharge application. I had directed that copies of those cases be made available so I can conduct a comparative analysis. None was produced. The gist of your argument is, a discharge ought to be granted as the consequences of a conviction would be disproportionate to the gravity of your offending, given you stand to lose your seat as MP and will be ineligible to run as a candidate in the next General Election.
  2. Prosecution in their contradictory sentencing memoranda consents to the application in regards to the drink driving charge agreeing with the defence that the “penalty is disproportional”. But in relation to the two lesser offences of reckless and careless driving, they simultaneously seek consecutive penalties of a conviction and fine. I was quite concerned with this proposition and similarly defence counsel as evident in their filing a 2nd supplementary submissions objecting to the stance taken. Ms Atoa was questioned in court if there were any case authorities to support their stance in a discharge case of this nature where the Court is required to be satisfied of the test under sections 69 & 70. Ms Atoa replied there was none.
  3. At the outset I reject the recommendation to impose consecutive sentences. It would have been appropriate had it not been for the discharge application which requires the court to weigh the overall gravity of the combined offences which flows from the same transaction, not separate incidents. But this novel approach basically invites the court to pass separate sentences even if the test is satisfied. This is unacceptable. Prosecution had three options open to them, either, consent, object or be neutral.

Legal Principles for Discharge Without Conviction

  1. As I have said in a number of discharge cases I dealt with[2], section 11 Sentencing Act provides that where an accused is found guilty or pleads guilty to an offence, then before entering a conviction and imposing sentence, the Court must consider first, whether such an accused would be more appropriately dealt with, by a discharge under sections 69 and 70 Sentencing Act. This is a mandatory requirement that a Court must consider. As the Court of Appeal in AG v Chang[3] observed “it appears from section 11 that in every case the Court is to consider the probability of a discharge without conviction.” I also remind myself of subsection 11(2) relating to the presumption to impose a conviction.
  2. A discharge without conviction is a type of sentence available under section 69(1) Sentencing Act.[4] This enactment gives a Court discretion to discharge an accused found guilty of; or who has pleaded guilty to an offence unless a court is required to impose a minimum sentence. A Court may also order the payment of costs.[5] A discharge is deemed an acquittal.[6] Section 70 provides as follows:
  3. The law on an application for a discharge without conviction and how to approach it is well established both by statutory provision as well as case law. The test was first laid down by Sapolu CJ in P v Papalii and Moalele[7]. As I have been saying in previous cases,[8] an application for a discharge under sections 69 and 70 involves a consideration of two stages as recognised in Chang.[9] The first stage deals with an assessment of the three step test under s70 or the disproportionality test. Notably, s70 is expressed in the imperative, so it is a precondition or gateway that must be satisfied first before s69 kicks in. The second stage requires the Court exercising the residual discretion under s69 as to whether a discharge should be granted or denied.
  4. The approach is best summarised in the often quoted passage below by Arnold J in the Court of Appeal case of Z v R[10] which is the leading authority in New Zealand on discharge without conviction:
  5. That approach was confirmed by the NZ Court of Appeal in DC v R[11] and other Court of Appeal cases[12] which I adopted in Lauina.[13] In AG v Ropati,[14] the Court of Appeal there acknowledged that the correct approach to sections 69 and 70 is not in doubt and has been summarised in various ways. They also observed that in a case such as Ropati, the approach can be usefully broken down into four steps namely:
  6. Whichever approach taken, it is crucial to remember that the discretion in s69 to discharge an offender is subject to the test under s70 being satisfied first. As described earlier this involves, firstly assessing the three step disproportionality test under s70 or steps (a) to (c) as envisaged in Ropati, before moving to the second stage of determining whether the discretion to discharge ought to be exercised under s69 (Step (d) of Ropati).
  7. I have also been adopting the NZ approach which shows that there is no onus on an offender seeking a discharge to establish the disproportionality test. Certainly, neither sections 69 or 70 imports such onus of proof. The requirement is simply the Court must be satisfied of the test after assessing all relevant evidence.[15] But as with any application, it is appropriate for offenders seeking a discharge to provide reliable information to the Court to substantiate the claimed consequences or analysis of the test.[16] Judges may also take judicial notice of facts and rely on their own direct knowledge.[17] If Prosecution wishes to submit evidence in rebuttal as they are entitled to, then by all means file the appropriate documents to substantiate their position. Mere assertions from the bar however in my view will not suffice. I will now turn to determine the three step disproportionality test.

Gravity of the Offence

  1. As traversed above, in assessing the gravity or seriousness of the offence, the Court must consider all the aggravating and mitigating factors relating to the offending and you Schuster as an offender and any other factors affecting the Court’s assessment of your degree of culpability. This requires a fact specific assessment of the particular circumstances of your case. The exercise generally means that the culpability of the offending that may appear quite serious may be reduced by unusual and extenuating circumstances either of the offender or offending.[18]

Submissions

  1. Prosecution submits that the aggravating factors include:
  2. For the mitigating factors Prosecution identifies two. These are the early guilty pleas, your “good academic background and of high standing being the voting candidate for his constituency”. They submit the gravity of the offending is between moderate to high. The Defence submits that the offending is on the lower end of the scale. They do not identify any specific aggravating factors. For those in mitigation, they submit these are the:

Analysis

  1. Before embarking on an analysis of the seriousness of your offences Schuster, I must remind myself that the assessment of the gravity of the offence is in relation to your particular offending but not how it measures to other comparable cases. I also bear in mind that although s70 refers to the gravity of the offence, case authorities have established that offences are not considered in a vacuum. Rather it is necessary to look at the offending itself to assess the reaction of an accused to it, as well as the matters that may generally affect the Court’s assessment of culpability.[19] Thus, the importance of considering all the aggravating and mitigating factors at this stage. I also take into account under this step the general purport of the drink driving provisions of the RTO, which is to ensure road safety for all road users and deter the prevalence of this type of offending.[20]
  2. I further adopt here the approach in the leading NZ authority on discharge applications for DUI of Basnyat v NZ Police.[21] The main issue in that case was whether despite the settled approach described above to discharge applications in general offending, the NZ courts have come to develop a different test in respect of drink driving following the case of Linterman v Police.[22] I will elaborate further on these cases later but suffice to say that on the gravity of the offending, the Court of appeal there stated[23]

Aggravating Factors

  1. I take into account the general aggravating factors relevant to you under s7(1)(i) and (j) of the Sentencing Act relating to premeditation and your previous conviction which will be referred to shortly.
  2. Of the three charges, the most severe and leading one in terms of statutory penalty permissible by Parliament is the driving under the influence, followed by reckless driving, then careless driving. However, as I said in the case of Lauina,[24] the severity of a penalty is not the sole determining factor for assessing the seriousness of the offending or the level of culpability of an accused.[25] The Courts normally look beyond the generic severity of the offence and consider other relevant factors to the offending overall. As Dunningham J delivering the decision of the NZ Court of Appeal acknowledged in Tupu v NZ Police,[26] the trial Judge“...noted that it was a serious charge carrying a maximum of five years’ imprisonment, although correctly recorded that that in itself, did not necessarily establish the seriousness of the offending or the appellants level of culpability.”
  3. Schuster you are an intelligent man and a public figure being a former and current member of Parliament. Your high profile is a relevant matter in terms of culpability.[27] You are part of the law making machinery of Government. By that fact alone flows the inference that you should have requisite knowledge of the law and be well versed with the stern stance this Court have taken on traffic related offences of this nature given its prevalence. You would have had knowledge as well of the nationwide awareness programmes against DUI spearheaded by the Ministry of Police, other government ministries and NGOs. The thrust of such awareness programmes is road safety and protection of all road users in this country. However, it is quite obvious that notwithstanding your public role, you blatantly ignored the law. Ignorance of the law however, is never an excuse for someone of your calibre. Drink driving is extremely dangerous, illegal and socially unacceptable as it poses high risks to public safety and quite costly.[28]
  4. Before I move on to other crucial aspects, it is important that I draw this to your attention as it is a matter of public interest given the public office you hold. In Tupou[29], I observed that generally speaking, there is a rampant rise in DUI offences. Statistical data I recently obtained from the Ministry of Justice shows that for the year 2019, there were 811 recorded DUI cases in this Court. For 2020 it skyrocketed to 1433 cases. For this year alone, so far 1192 have been recorded and we still have 2 ½ months to the end of the year. This is not at all an insignificant number. You are now part of this tragic rise in statistic for this type of offending. These figures are complemented by the data of referrals from the District Court to the Salvation Army for traffic offences. A report I obtained from the Salvation Army confirms that since Aug 2018 to 22/09/2021 a total of 1,106 defendants have attended their treatment programme. 576 of that number are for traffic offences which equates to 54% of all referrals to date. You have also added to this statistic given your referral.
  5. In terms of the specific aggravating factors of your offending there are a few. The level of alcohol found in your breath of 66 micrograms which meant it was 26 mgs above the allowable limit. During the course of writing this decision, my attention was drawn to the time the party started which was 12pm. You left at between 5pm - 6pm which infers that 5 to 6 hours had elapsed since you joined the party, so it is quite plausible to infer you must have consumed quite a bit of alcohol as shown in your evidential test.
  6. You made a conscious decision to drive from the venue of the party towards Vaitele road and from there you headed towards town aiming for your residence at Vaoala. This was not at all a short distance you intended to travel by driving. But you did just that knowing full well you had been drinking alcohol and highly likely to be over the limit and therefore unsafe to drive. Your actions of choosing to drive in the manner you did, were voluntary and premediated. There is certainly nothing before me to suggest otherwise. You had total disregard for your safety and that of other road users. Whilst on the road you endangered the lives of other road users given the amount of alcohol in your breath and bad manner of driving. Police patrol’s attention was obviously drawn to your vehicle. As their vehicle was behind yours, they were able to observe your conduct and manner of driving. Had you been fully alert to your surroundings you would have noticed them following fairly close to your tail. It is fair to say when Police pursued your vehicle with beaconing lights on, they had no idea it was you.
  7. Unpacking the material facts, from the hump at Pesega to when you stopped in front of Vaimoso Primary School which is roughly about 400 metres or thereabout, Police observed sustained erratic driving on your part. You failed to stop at the traffic lights at Pesega when it signalled red instead you zoomed right through it without due regard to the safety of other road users on that part of the road. Then when you pulled over on the reserve lane in response to Police pursuit, instead of waiting for Police to disembark from their vehicle, you decided to drive off again by manoeuvring onto the main lane without having a proper lookout if it was safe to do so or signalling with an indicator that you are merging onto the inside main lane. From that short distance you did not slow down rather you drove through the orange lights, with police hot on pursuit. You eventually stopped at the reserve in front of Vaimoso Primary School where Police observed you staggered when you alighted from the vehicle, had bloodshot eyes and smelt strongly of alcohol. These combined factors aggravate the offending.
  8. I do not accept the submission by your counsel that the driving through the red lights and failure to signal with an indicator are distinct and minor acts that are daily occurrences on the road. In my view, it is artificial to mechanically dissect and separate these acts in assessing your overall criminal culpability. These incidents are not indistinct or isolated. Your bad driving is a direct impact of the alcohol your consumed. The contemporaneity of the reckless and careless driving incidents is causally linked to the same transaction deriving from your drink driving. Had it not, you would not be standing in that dock again.
  9. In the nutshell, it is aggravating that you did not adhere the traffic lights when it turned red, rather you zoomed right past it. It was reckless of you to do that. It is aggravating too that you drove carelessly on the road. When you did so, you have fallen below the reasonable standard of care expected of a prudent and competent driver. Lord Diplock in R v Lawrence[30] observed that reckless driving involves the defendant actually driving a vehicle in such a manner as to create an obvious risk to some other person who might be using the road and in so doing, the defendant did not have regard to the possibility of such a risk occurring. In a similar vein, in R v Harney[31] the Court there stated that “recklessness includes foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk”. Your conduct on the road indicated lack of foresight. You did not have due regard of the potential danger lurking at the corner and continued to behave recklessly and carelessly on the road. The resulting consequence viewed objectively would have been dangerously detrimental.
  10. You attested at paragraph 31 (b) of your affidavit that the road was free from traffic. This is similarly echoed in your submissions via counsel where you claimed that it was fortunate the road was basically empty being a public holiday so the potential risk was low. I do not buy this for the simple reason there is no evidential basis for this speculative assumption which is basically self - serving. I also doubt its truthfulness given your inattentiveness on the road as evident from your conduct whilst driving.
  11. The upgraded and enhanced two lane Vaitele road is the main artillery road running from Malifa right through to Vaitele - tai and beyond. From Malifa to Vaitele – tai on a normal day, vehicles zoom by at various speed like they are driving on a highway. Traffic lights were installed at Vaitele, Lepea, Pesega, Vaimea, Taufusi, and two at Malifa to control and regulate the flow of traffic on this busy road. These traffic lights have been there for a while now and road users are expected to adhere its colour signals unless these are inoperable or an officer is directing traffic. The Pesega and Vaimoso intersection are two of the busiest at peak hours in the morning, after school and close of business from 5pm. Even if it was a public holiday, as the incident occurred in the evening, from experience having lived in Samoa the majority of my life, it is reasonable to expect that there would have been vehicles on the road albeit not as busy. But I do not accept the proposition that this part of the road was basically deserted at the material time.
  12. Ms Lui submits that running a red light and failing to indicate are common occurrences on the road and that the reckless and careless driving charges were only filed to bolster the charges. I agree these incidents are common occurrences but that does not excuse your conduct. The big difference here is, you got caught breaking the law. Your offending is exacerbated by the fact that you were not caught at a routine checkpoint but by Police patrol on the road. In regards to the claim that these charges were filed to bolster the offending, this is vexatious and unsubstantiated. It is plausible to say that Police must have had sufficient evidence and a prima facie case against you to charge for these two offences and quite properly so. The fact remains, you pleaded guilty thereby accepting responsibility.
  13. I am obliged by s7 (1) (g) to take into account as an aggravating factor the details and nature of your previous conviction. You do not come to court without prior involvement in the criminal justice system. At your sentencing on 3/08/13 following your trial with other co-accused where some charges against you were proven, Judge Vaai as he was known then, declined your application for a discharge without conviction and entered instead convictions for unlawful assembly, uttering insulting words, obstructing an officer in the execution of his duties and resisting police. The conviction is 7 years old and the age of that offending ameliorates to an extent the aggravating factors personal to you as an offender.

Mitigating factors

  1. There are multiple important mitigating factors in your favour as summarized below. You pleaded guilty to the offence at the first reasonable opportunity which indicates remorse and acceptance of accountability thereby saving the Court time and resources.
  2. There is no pattern of traffic misbehaviour of this nature recorded previously against you. The previous convictions for the offences described in [45] above are unrelated to the present offences. As I observed in Tupou[32] NZ have what they call a Criminal Record (Clean Slate) Act 2004 whereby a conviction as old as 7 years may be wiped out provided the accused/applicant meet the requirements under the s7 enactment. The purpose of the schema is to allow individuals with past criminal convictions to put their past behind them and start on a clean slate.[33] We do not have such a legislative framework but perhaps it is timely we have one. For these purposes however, the time lapse between the two incidents from 2013 to 2021 tells me you have been staying out of trouble.
  3. Ms Lui advocated you are remorseful and regretful of your actions and lapse of judgement. I accept your contrition and genuine remorse as further illustrated in your guilty plea, affidavit and testimonials annexed to your affidavit. Separate credit for your remorse to that of the guilty plea should be made. You have rendered apologies to your constituency, village, church and FAST. Your faifeau Reverend Nuuausala,[34] deposed that you had apologised and sought forgiveness from the Lord. The affidavit by Honourable Fiame Naomi Mataafa (“Hon. Fiame”) at [8] attests that when this incident came to light, you approached her and deputy leader Laaulialemalietoa Leuatea Schmidt where you apologised and expressed your regrets for bringing shame to your political party and its members.
  4. I turn to your personal circumstances and note you have a family that you support solely from your consultancy work. Your wife Suzie and children, with the exception of one, are in NZ for tertiary study purposes but you continue to support them from Samoa. A letter from your wife is on file testifying of your role as a father/ husband, good qualities including your strong sense of responsibility to the community, willingness to help others and devotion to serve your immediate and extended family. This is equally echoed in the testimonial from your uncle Muagututi’a Leao Toalepaialii.[35]
  5. Rev. Nuuausala speaks highly of your character as a devout Christian and an active communicant member of your parish carrying out key roles of being a deacon, leader of the men’s fellowship from 2016 to 2018, delivering holy communion to elderlies in their homes and other voluntary work you perform. The affidavit from the Hon.Fiame attests to your professional character and passion for environmental and climate change issues affecting Samoa and the Pacific region. She deposes that you were the first choice for the ministerial post for MNRE. On a personal level, she considers you to be an honest, reliable and exceptional man. The letter from the sui o le nuu Tiumalu Elia[36] similarly speaks of your active involvement in your local community and constituency and some of the projects you spearheaded.
  6. Ms Lui, submits that you have had to resign from your portfolio as Cabinet Minister for MNRE as a result of this incident. Notably, you are not alone in that respect as other former Cabinet Ministers have done the same when charged with criminal offences. Here, the affidavit by Hon. Fiame confirms you have tendered your resignation and quite properly so. However, the affidavit is silent as to whether that resignation was accepted especially since it is publically recorded that to date, the MNRE ministerial portfolio remains vacant with the Hon. Prime Minister assuming responsibility for it in the meantime. This imputes that depending on this ruling, you are highly likely to be reinstated to your role as Minister for MNRE. So whilst I accept that you offered your resignation which is the honourable thing to do, it is in my respectful view, window dressing and I liken it to the popular saying ua na o se galu e faafua ae le fati. It would have been a different story if it was accepted and the position filled by another FAST MP. But that is not the case.
  7. You completed the pscyho-education treatment programme with Salvation Army and I acknowledge with gratitude the pivotal role they play in rehabilitating accused referred to them for treatment. I note from the Salvation Army report that your initial assessment indicated patterns of alcohol abuse. But they observed as you progressed that you have been proactive in applying solution focused methodologies to manage triggers to your behaviour and utilising alternative preventative strategies to reduce risky situations. Apart from this programme, you continue to have one on one counselling sessions with your faifeau who relays your desire to re-orient your lifestyle to honour the Lord’s calling on you thereby glorifying His holy name. Your voluntary attempts at receiving counselling and successful completion of your programme are mitigating factors in your favour I will take into account.
  8. As a public figure, this incident naturally drew public interest and attention. Your offending was widely publicised via mainstream and social media as well as the over exaggerated versions transmitted via the infamous uaea mosooi. With Samoa being such a small country and your being a public figure, word of this incident quickly spread like wildfire. To add fuel to the fire, a mugshot of you whilst in custody was virally disseminated on social media. I understand the Officer responsible has been accordingly disciplined. Like other accused, you were held in custody overnight which can be a traumatic experience; but being held in custody overnight is allowable by law under Article 6(4) of the Constitution. Overall, I accept that you were subjected to adverse public criticism causing more humiliation and stigma.
  9. Having traversed the above, I am of the view that you are entitled to be treated as someone who made a bad mistake and poor judgment call, but has otherwise in all other respects been an outstanding and contributing member of society. Other than your previous stint with the law and current ones, you are of good calibre and a worthwhile citizen. You have a distinguished record of your professional career as an environmentalist and a strong advocate for climate change. You have served impeccably well in all facets of our community as well as regionally and internationally. You are not perfect but then who is? As humans we all err. I have seen far too many traffic related incidents before this court and it is a tragedy in and of itself. Bottom line is, alcohol contributed to your lapse of judgment. Alcohol consumption however, is never a justification or mitigating factor for committing an offence.[37]
  10. Weighing all the aggravating and mitigating factors in its entirety including your personal circumstances, I form the view that the gravity of your offending is moderate to serious. This bring discussions to the next limb of the test.

Assessment of the Direct and Indirect Consequences of Conviction

Threshold Test

  1. The threshold test for consequences that are to be taken into account in the operation of the disproportionality test were explained in Iosefa v New Zealand Police:[38] affirmed in DC v R[39]
  2. I have been adopting the above test in discharge cases I dealt with. As I said in Lauina,[40] the judicial assessment of the direct and indirect consequences need not be determined to any legal standard of proof. The sentencing judge does not have to be satisfied that the claimed consequences will inevitably or probably occur. The test is simply the Court must be satisfied there is a real and appreciable risk of such consequence occurring. A real and appreciable risk connotes something of substance but not merely fanciful or speculative. The nature and seriousness of the consequence and degree of likelihood is material to the Court’s assessment. The higher the likelihood and the more serious the consequences, the more likely it is that the statutory disproportionality test is satisfied.[41]

Submissions

  1. Schuster you attested at [29] of your affidavit to a number of claimed consequences on you of a conviction as listed below in verbatim:
  2. Of the claimed consequences, the key ones you argue are most detrimental are the loss of your seat as a member of Parliament under s141(2)(g)(ii) of the Electoral Act 2019 and ineligibility to run in the next General Elections due to s8(2)(d)(i) . This is followed by other consequences as summarised in [58] above including impediment to travel.
  3. Prosecution concedes that the loss of your seat as a member of Parliament and your ineligibility to qualify to run in the General Elections in the next five years is a likely consequence of a DUI conviction given the maximum penalty. It is also submitted that you already have a previous conviction which does not seem to hinder your career progression or travel. For the latter, they rely on the NZ case of Zhang v Ministry of Economic Development[42] adopted by Justice Clarke in P v William Ernest Rockliffe[43] where it was there stated that the Court should be hesitant in usurping the role of immigration and customs by pre-empting their decision making process via a discharge application.

Discussion

  1. I do not accept there is a real and appreciable risk that there will be hindrance to your ability to advance your professional career or your involvement in civil society. Nor do I accept the claim of potential risk of facing sanctions by your village and itumalo of the type described. There is nothing before me to substantiate these assertions which I view as speculative. If anything, the exhibits to your affidavit, paints quite a different picture. You already have previous convictions recorded in your name from 5/08/13. Since that time, you have had no hindrances in progressing neither your professional career or involvement in NGOs, civil societies and local community. This is further confirmed by the fact that since the entry of conviction, you continued to receive invitations from organisations in your professional capacity as a specialist in your field of expertise.
  2. Regarding the likely removal of your matai title again this is speculative. The removal of a matai title is not automatic as it can only be done by an order of the Lands and Titles Court. The legal procedure for the removal of a matai title is regulated by s14 of the Lands and Titles Act 2020. I have no jurisdiction to go there suffice to say, it is highly unlikely that anyone will apply to remove your title any day soon, as you are deemed a hero within your family and community. The same goes for the potential risk of a serious sanction bearing in mind this is a daily occurrence in our communal lives. In fact, the testimonial from your sui o le nuu (exhibit “D”) does not disclose a likelihood of your being penalised by your village or constituency for this offence. Rather it sings your praises and seeks “E tatalo atu ma le agaga maualalo mo sana faaiuga ina ia aua nei aafia ai le tofiga faipule o lo’o umia nei e Toesulusulu, aua o lo’o ua nofo sauni le afioaga ma le itumalo e galulue faatasi mo se lumanai lelei o le itumalo ma Samoa atoa.”
  3. The letter from Rev. Nuuausala attests that you were asked to temporarily step down from your role as deacon whilst awaiting the outcome of this case. I note this is only a temporary stand down period pending the conclusion of your case; so it is highly likely you will be reinstated. I do not accept there is a real and appreciable risk of your losing your position as a church deacon. Nor do I accept that you had to withdraw from your temporary role as Treasure as a consequence of your present offending. This claim contradicts what Rev. Nuuausala stated in his character reference that you had resigned voluntarily after you won the elections, as you foresaw that you would be busy in your new role but that you continued until the position was filled.
  4. In terms of the claim relating to travel impediment, I am simply not satisfied on the documents before me that it is a likely consequence rather it is more an inconvenience. If anything the documents and in particular exhibit A to your affidavit depicts that notwithstanding your previous convictions from 2013, you were still able to travel freely in and out of the country without any difficulties. So there is no real and appreciable risk of a conviction hindering your travel. As stated in a number of cases here and other common law jurisdictions, potential problems with international travel is often seen as a universal consequence, and unless material evidence can be shown that a conviction would impede entry into another country, such speculative consequences will normally not form the basis for a discharge.[44] My attention is also drawn to the Court of Appeal case of Ropati[45] where the Court there cautioned:
65. This also reflects the observations of the court in Zhang as affirmed by the NZ Court of Appeal in Ho v R[46] As to what may constitute a finely balanced case, the Court of Appeal did not give a clear guideline as to how this might be assessed. But as always, it will depend on the peculiar circumstances of the case. In Zhang however the Court there observed that the case for discharge may not be so strong “where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.” Justice Nelson had also referred to Zhang in his sentencing ruling of P v Apulu Laniselota Polu[47] where the accused advanced an application for a discharge relying on impediment to travel of a conviction. His Honour declined the application.
  1. Arguably, the above caution in Ropati, could be interpreted as meaning that it is now more stringent or difficult for an accused to apply for a discharge on the grounds of travel and immigration complications. Not every case however is the same as the courts have said numerous times. For instance in the pre - Ropati case of AG v Sefo,[48] which involved an appeal on a discharge without conviction ruling by Vaai J for charges relating to sexual connection with a female under 16 years old, one of the grounds advanced was impediment to travel. The Court of Appeal was persuaded that although the accused had no immediate plans of travelling as he worked on his father’s plantation, it was accepted that all Samoans given its geographical isolation, would want to travel overseas at some stage in their lives.
  2. It is clear however, that in post Ropati cases, the courts have invariably granted discharge application on the ground of disruption or hindrance to travel.[49] But similarly, applications relying on travel have also been declined.[50] In my respectful view, a discharge does not necessarily conceal an offending from proper authorities especially in Samoa where a previous conviction record would still reveal details of the offence and the penalty imposed being a “discharge without conviction”. If the proper authorities wish to inquire further about details of the offence, then they can always request that information from the Court Registrar. But it is imperative to remember that a court is mandatorily obligated by s11 of the Sentencing Act to consider a discharge without conviction in appropriate cases, when an accused is found guilty or pleads guilty.
  3. In regards to the loss of Parliamentary seat, I take judicial notice of section 141(2)(g)(ii) of the Electoral Act which states:
  4. This provision is crystal clear. It states that a seat of a MP becomes vacant if any of the events under s141 occurs including inter alia a conviction in Samoa or any other country of a crime punishable by imprisonment for a term of 4 years or more.[51] This enactment operates as an immediate disqualifying factor and applies to you in particularly the DUI charge which has a prescribed penalty of a maximum term of imprisonment of 5 years. By operation of this enactment, the immediate and direct consequence of a conviction on yourself is the automatic loss of your seat.
  5. When you last appeared in this Court in 2013 for sentence before J Vaai, he declined your discharge application. The highest imprisonment penalty for one of the offences you were sentenced on was two years which did not affect your parliamentary seat. Similarly it was not a factor his Honour J Vaai considered fatal in P v Fonotoe Pierre Meredith[52] when he entered a conviction. However on appeal, the Supreme Court quashed the sentence instead Fonotoe was discharged without conviction.[53]
  6. In terms of your eligibility to run at the next General Election, I also take judicial notice of s8(2)(d)(i) of the Electoral Act recited below:
  7. Your political career is a fact that is already on public records commencing with your election as a member of Parliament for Aana Alofi 3 from 2011 to 2016 where you vied under the banner of Tautua Party. You contested again for the 2016 General Election but lost. You took up the challenge in this year’s General Election and won for the Aana Alofi 4 electorate. At the swearing in ceremony FAST held on 24/05/21, you were appointed as Cabinet Minister for MNRE. So unlike other accused applying for a discharge who dream big of becoming politicians using this ground as their potential ace card, you on the other hand already have a foothold of your political career. This is not merely fanciful or speculative.
  8. I accept for these purposes that there is a real and appreciable risk of your losing your seat as an elected member of Parliament. This is a direct consequence of a conviction and inevitable given the provisions of the Electoral Act. Similarly, I hold there is a real and appreciable risk that a conviction will pose as a temporary bar on your eligibility for entry at the next General election. However, I also note that this is not a permanent but temporary setback albeit grave. You are only and at the prime of your life. So even if I enter a conviction, God willing, you will still be able to run in the next 10 years, unless of course there is law reform.

Is a conviction out of all proportion to the gravity of the offence?

  1. The Court of Appeal in Chang and Sefo observed that the approach to adopt involves a judge exercising “his or her statutory discretion by balancing the direct and indirect consequences of a conviction to a defendant against the gravity of the offending. This involves a judicial assessment of proportionality which in its nature is inherently fact specific.”[54]
  2. His Honour Nelson J observed in P v Polu,[55] that section 70 of the Sentencing Act refers to the consequences being out of “all” proportion to the gravity of the offence. He noted that “the addition of the word “all” before proportion emphasises that in the proportionality exercise the direct and indirect consequences of a conviction must clearly outweigh the gravity of the offending” In the NZ DUI case of Linterman v NZ Police[56] the High Court there stated that “the court must weigh consequences and gravity in search of a serious disequilibrium. Out of all proportion is an imprecise but exacting standard.” The Court further stated:
  3. Linterman was revisited by the NZ Court of Appeal in the leading DUI case of Basnyat v NZ Police.[57] In Basnyat, the Appellant there had criticised the extent to which the above quoted passage from Linterman had been routinely cited by the Courts to bypass the four stage proportionality assessment required by the legislation as explained in Z v R,[58] substituting it instead with superficial standards of exceptional circumstances and significant hardship. The Court of Appeal had this to say:
  4. The Court of Appeal in Basnyat also agreed with the cautionary language in the High Court case of Ovtcharenko v Police[59] where it was observed that:
  5. I adopt here without reservation the approach in Linterman as clarified in Basnyat summarised above in [32], [76] – [77] which in my view is timely and necessary given the volume of discharge cases filed in this Court. I also bear in mind the cautionary approach in Ovtcharenko which echoes those in R v Hughes, Z v R and DC v R. The test is simply the Court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Importing terminologies such as exceptional as if it were found in our s70 does not assist. Reciting the words of the Court of Appeal in Basnyat, “the consequences of a conviction must be relatively significant before they are “out of all proportion” to the moderate seriousness of the offence.”
  6. I have already assessed the gravity of the offending to be moderate to serious. I have also made findings on the direct and indirect consequences and have accepted two key significant ones that are likely to occur as a consequence of the entry of a conviction which tips the proportionality scale. Weighing the gravity of the offending against the consequences of a conviction and in particular the most significant consequence of the loss of your seat as a member of the legislative assembly, I am satisfied that the requisite test has been met; that is the consequences of a conviction would be disproportionate or out of all proportion to the gravity of the offending.

Should the Discretion under s70 to discharge you be Exercised?

  1. At the outset, I am of the view that the residual discretion under s70 should be exercised to discharge you without conviction. In fact, it is very rare that a discharge is not granted after the requisite test is met. At this juncture, I wish to briefly traverse another key case where I was satisfied of the test to further highlight the consistent approach I have adopted to discharge cases. In Salele[60] the accused was a doctor by profession; she was charged with intent to cause actual bodily harm. She too had relied in her application for discharge on a conviction sabotaging her ability to qualify for a scholarship to undertake her postgraduate masters degree. Prosecution had vigorously objected to the application. I took judicial notice of s18A of the Healthcare Professions Registration and Standards Act 2007 relating to the automatic revocation of registration of a healthcare professional if he or she is convicted of a serious offence.[61] The offence Salele was charged with carried a maximum penalty of 7 years’ imprisonment. I ruled the provision applied and discharged the accused. I have also discharged two other doctors for DUI with microgram readings in the 50s. They too relied on the same provision.
  2. I am of the firm view a conviction will be a bar to your continuing to be a member of Parliament for the remainder of this term. This is significant. As Wylie J stated in Roberts v Police,[62] “if a conviction is going to result in an absolute bar to the offender gaining entry to some profession or career, then it may well be appropriate to ameliorate that consequence in an appropriate case by declining to enter a conviction.” As the requisite test is met, it therefore follows that your application for a discharge without conviction is successful. But I am not just going to slap you on the wrist with only a discharge. So we will move to the next section.

Appropriate Sentence

  1. In sentencing you, I remind myself of the sentencing purposes and principles under sections s5 and 6 Sentencing Act. I note NZ still follow the approach in Blythe v R[63] where the purpose and principles of sentencing are considered under their NZ s106 if a Court is satisfied of the test under their section 107. It makes sense we follow suit and I adopted this approach in other cases. The principles I have in mind is denunciation, deterrence and accountability. Subjective or personal deterrence is not a concern for me given the completion of your rehabilitation programme, ongoing counselling with your faifeau and genuine attempts to change. I accept you have learnt a harsh lesson from this experience and this in and of itself is enough to deter you. I am certain that your community involvement and public function as member of Parliament will also act favourably to reduce the possibility of reoffending. For general deterrence and denouncement, a clear message must be sent to the public that the court does not condone this type of conduct or offending. Anyone who breaks the law, will be held accountable and I intend to impose payment of costs as this court is entitled to pass under s70 (2) Sentencing Act.
  2. It is unquestionable that this Court has done its job of passing stiff sentences to reflect its concerns with the rampant rise of traffic offences. This included referral of defendants to rehabilitation treatment with a view towards addressing the roots of alcohol abuse and to be educated on counter-productive and alternative methodologies of dealing with alcohol. Police too continue to crack down on crimes of this nature. The question is what should we do about this as a community to reduce this social evil and related crimes? Is the answer another law reform to increase the penalty or should we take a different approach that is more effective and less costly to save lives? This is the responsibility of our community as a whole. I hope you can use your term in Parliament to do something productive about this.
  3. I cannot feign ignorance of the fact that your previous stint with the law occurred when you were a member of Parliament and not even two months into this term as a duly elected member, you committed these offences. At the time of your offending on 1 June you had already been sworn in as a member of Parliament at the swearing in ceremony FAST held where you were also appointed as a Cabinet Minister. It is disappointing to see you stand in that dock again. But you are the author of your own peril. It is time for some serious self - reflection Toeolesulusulu. Manumanu i lou tagata ma ou tofiga mamalu ma le taua. Our people put you there for a reason. Do not take lightly the position you hold as a member of Parliament by making errant decisions that will cost you that seat because the next time it happens; you will not be so fortunate.
  4. As a public figure you are expected to uphold yourself with honour and integrity as required of the prestigious public office you occupy which belongs to no one else but the proud people of this nation. The insurmountable trust our people place in you via your constituency in electing you as a Member of Parliament is not insignificant. You must always consider first the interest of our people before any other self - serving interests. As a citizen of this country, and most importantly a Member of Parliament and current Cabinet Minister, you are required to uphold the rule of law and live by example.
  5. I am well aware that a number of people have a vested interest in the end results of this case including your political party and opposition alike given the impact it would have on tipping the scale of the balance of power, if I enter a conviction. As a judicial officer, I should not be concerning myself with such political interests nor be swayed by public opinion. My oath as a judge is of utmost importance and the pillar I hold close to me in discharging my duties. By that oath, I swore by the Almighty God that I will well and truly serve the Independent State of Samoa in the office of a judge of this Court in accordance with the Constitution and the law; and to do right to all manner of people, without fear or favour, affection or ill will.”
  6. I do not take my oath lightly. I have an overarching judicial duty to the independent, impartial and fair administration of justice regardless of personal affiliation and who is involved in a case. As Lord Hewart in the landmark case of Rex v Sussex[64] in the classic principle of law recited over 100 years stated “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The symbolism of Lady Justice holding the scale of justice and sword is a timely reminder in these trying times of the fundamental principles it represents of impartiality and power of justice.
  7. Toeolesulusulu, please use this opportunity wisely and do not take lightly the mercy and leniency of the Court. Ae alo e tuli se ai mo le atunuu, aemaise lou itumalo, alalafaga ma aiga o lo’o tapuaia ou faiva. Toe timata le upega ma tuutuu i le loloto le tofa ma le faautautaga. Tautuana ma oe aua le naunau i le i’a ae manumanu i le upega. Aua foi e te tuliloaina le lauamanu, ae taga’i i le faamulioatu. Alo i ou faiva alofi lima. O ou mama na ma ia faamanuia pea le Alii.

Conclusion

  1. You are discharged without conviction but subject to the following:

JUDGE ALALATOA R VIANE PAPALII

Postscript

The receipt of payment was submitted confirming the accused paid the costs ordered of $2000 on 18 October 2021. He was accordingly discharged without conviction.

[1] See P v Charlie Westerlund (Unreported Preliminary Ruling of J Saaga delivered on 9/09/21) where she also referred to this approach.
[2] P v Lilo Lauina [2017] WSDC 5; P v Annandale [2017] WSDC 15; P v Lagaia [2017] WSDC 23; P v Salele [2018] WSDC 14; P v Levi and Keil [2018] WSDC 15; P v Tupou [2018] WSDC 17; P v Malele Paulo [2019] WSDC 3
[3] AG v Precious Chang [2018] WSCA 3
[4] See AG v Sefo [2018] WSCA 16 and AG v Ropati [2019] WSCA
[5] Subsection (2)
[6] Subsection (3)(a)
[7] P v Papalii & Moalele [2011] WSSC 132
[8] See above note 2
[9] Above n 2
[10] Z v R [2012] NZCA 599
[11] DC v R [2013] NZCA 255 at [35]
[12] Ji v R [2015] NZCA 308 at [45]; Edwards v R [2015] NZCA 583 at [27] – [28] Muraj v Police [2016] NZCA 279 at [9]; Basnyat v NZ Police [2018] NZCA 486
[13] Above note 2
[14] Above note 4
[15] R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [52]; Z v R above note 10; DC v R above note 11 and cases cited in above note 2
[16] R v Hughes, Ibid
[17] Z v R above note 10 and DC v R above n 11

[18] See R v Hughes above note 15 and cases cited in above notes 10, 11 and 12
[19] Tupu v Police [2014] NZHC 743
[20] Note it is the aapproach in Basynat v NZ Police supra note 12.
[21] Above note 12
[22] Linterman v Police [2013] NZHC 891.
[23] Above note 12 at [22]
[24] Above n 2. Also see P v Tupou & P v Salele above n 2
[25]Pale v Police [2010] WSSC 122; DC v R above note 11; Tupu v Police above n 19.
[26] Above n 19
[27] See AG v Asiata Saleimoa Vaai [2009] WSSC 48
[28] See observations of NZ Supreme Court in Aylwin v Police [2008] NZSC 113, which I adopted in Tupou above note 2
[29] Above note 19
[30] R v Lawrence [1982] AC 510 pp 526 to 527
[31] R v Harney [1987] 2 NZLR 576
[32] Above note 2 at [28]
[33] ibid. Also see Lechner v Police [2013] NZHC 1166.
[34] Exhibit C of Schuster’s Affidavit
[35] Exhibit E
[36] Exhibit D
[37] See s7(3) Sentencing Act 2016
[38] Iosefa v Police HC Christchurch CIV-2005-409-64,2 21 April 2005 at [34]
[39] Above note 11
[40] Above n 2
[41] See Iosefa v Police above note 38; R v Hughes above note 15, Z v R above note 10; DC v R above note 11
[42] Zhang v Ministry of Economic Development HC Auckland CRI -2010-404-453, 17 March 2011 at 14
[43] Unreported decision delivered on 25 October 2018
[44] See Chang above note 3.
[45] Above note 4

[46] Ho v R [2016] NZCA 229; also see Clarabal v NZ Police [2020] NZHC 1518;
[47] P v Apulu Laniselota Polu [2020] WSSC 42
[48] Attorney General v Sefo [2018] WSCA 15 at [21]
[49] See P v Asofolau 2019 [WSDC] 4 (a decision of Judge Roma (as he was known then);
[50] P v Taituave (Unreported ruling of J Viane Papalii delivered on 13/09/19); P v Christine Lemalu [2019] WSDC 6; P v Malele Paulo [2019] WSDC 6
[51] Pursuant to s141(2)(g)(ii)
[52] P v Fonotoe Pierre Meredith (unreported decision of J Vaai delivered on 14 April 2014.
[53] Meredith v AG [2017] WSSC 148
[54] See Chang above note 3 at [65[ - [70] & Sefo above note 4 at [15]
[55] Above note 27
[56] Linterman v NZ Police [2013] NZHC 891 at [17]
[57] Basnyat v NZ Police above note 12
[58] Above note 10
[59] Ovtcharenko v NZ Police [2016] NZHC 2572.
[60] Above note 2
[61] Serious offence is defined in s2 of the Healthcare Professions Registration and Standards Act 2007 as any offence with a prescribed penalty of 5 years’ imprisonment.
[62] Roberts v Police
[63] Blythe v R [2011] NZCA 190

[64] Rex v Sussex Justices [1923] EWHC KB 1; [1924] 1 KB 256.

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