Police v Iosefa [2022] WSDC 8 (11 November 2022)

IN THE DISTRICT COURT OF SAMOA
Police v Iosefa [2022] WSDC 8 (11 November 2022)

Case name:	Police v Iosefa
Citation:	[2022] WSDC 8
Decision date:	11 November 2022
Parties:	POLICE (Informant) v FILIFILIA IOSEFA (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	DISTRICT COURT – CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Talasa Atoa-Saaga
On appeal from:
Order:	I hereby convict and discharge the Defendant. As I am satisfied that there is a real and appreciable risk that his contract will be terminated if he is convicted and disqualified from driving, I will therefore not disqualify him from driving now that I have decided to convict him. He is to pay prosecution costs of $300.00 forthwith.
Representation:	Inspector Solomona for Prosecution B. Faafiti for the Defendant
Catchwords:	Driving under the influence of alcohol.
Words and phrases:
Legislation cited:	Road Traffic (Breathalyser) Amendment Act 2009, ss. 40(1); 40 O(1)(4); Sentencing Act 2016, ss. 6; 11(1); 69; 71.
Cases cited:	Attorney General v Ropati [2019] WSCA 2; Chang v Attorney General [2018] WSCA 3;
	Leai v Police [1970-1979] WSLR 286; Police v Fuiono [2011] WSSC 83; Police v Seumanu Douglas Ngau Chan (Unreported decision, 2020, Judge Schuster); Police v Viane [2016] WSDC 32; R v Mc Cabe [1985] 1 NZLR 361; Swami v Police [2012] NZHC 2725.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

FILIFILIA IOSEFA

Defendant.

Representation: Prosecution represented by Inspector Solomona.

Defendant Represented by Ms Brigitta Faafiti

Date: 11^th November 2022

SENTENCING DECISION OF JUDGE ATOA-SAAGA

INTRODUCTION

1. The Defendant is appearing for sentencing for a charge of driving a vehicle while the proportion of alcohol in his breath of 77 micrograms as ascertained by an evidential breath test pursuant to Section 40(1) Road Traffic (Breathalyser) Amendment Act 2009.
2. The Defendant has filed an Application for a Discharge without Conviction. This will be his third Application for a Discharge without Conviction albeit for a different charge. He was previously discharged in 2015 and convicted in 2016 of Failure to comply.
3. The penalty for this offence is a fine not exceeding 50 penalty units or an imprisonment term not exceeding 5 years imprisonment or both^[1].
4. If convicted of this offence, he shall be disqualified also for a period of 12 months from holding or obtaining a driver’s license unless there are special reasons why I should think otherwise.

SUMMARY OF THE OFFENDING

5. On the 5^th August 2021 at 12.00am, the Defendant was driving a Ford Ranger registration number 27250 when his vehicle collided with another vehicle.
6. The Police officers who attended to the collision suspected that he was intoxicated and conducted a screening test which generated a reading of 83 micrograms.
7. A second evidential reading was conducted at Ministry of Police Branch at Fagalii and disclosed a reading of 77 micrograms which exceeded the limit of 40 micrograms.

ASSESSMENT OF THE APPLICATION

8. Section 11(1) of the Sentencing Act 2016 provides:
   • “If a defendant is found guilty, or pleads guilty, before entering a conviction and imposing a sentence, the Court must consider whether the Defendant would be appropriately dealt with by discharging the Defendant under Section 69^[2] or convicting and discharging the Defendant under Section 71^[3].”
9. In Chang v Attorney General [2018] WSCA 3, the Court of Appeal stipulated at Para [53] that, “It appears from Section 11 that in every case, the Court is to consider the possibility of such a discharge.”
10. Notwithstanding that this will be the Defendant’s third application for a discharge without conviction, I will still consider this application and weigh it against the threshold which has been laid by the Court in Attorney General v Ropati [2019] WSCA 2. The weight that I will attach to the previous discharge without conviction applications and outcomes will be discussed in latter part of this decision.
11. The threshold test in Attorney General v Ropati at para 55 is
    • (i) Assess the gravity of the offence, a task which includes having regard to the aggravating and mitigating factors.
    • (ii) Identify the direct and indirect consequences of a conviction and
    • (iii) Decide whether the consequences would be out of all proportion to the gravity of the offence and, if so,
    • (iv) Exercise a discretion as to whether a discharge without conviction should be the outcome.
12. Prosecution opposed the application that the gravity of the offending was serious and Prosecution was not satisfied that there was a real and appreciable risk nor was the consequence of a conviction disproportionate to the gravity of the offending.

GRAVITY OF THE OFFENDING

13. In Police v Salele [2018] WSDC 14, Judge Papalii confirmed that in determining the gravity of the offending the Court must consider all aggravating and mitigating factors of the offending as well as aggravating and mitigating factors of the Defendant.

Aggravating Features of the Offending

14. The Defendant was driving under the influence of alcohol with 37 micrograms over the limit. Prior to the test, he was involved in a collision with another vehicle which led to the Police response and being suspected of driving under the influence.
15. Irrespective of the purpose for the joyous occasion that the Defendant had attended earlier and his own judgement of his capabilities at the time, getting behind the wheel thereafter after the consumption of 6 bottles of beer within two hours was an irresponsible action as it placed the Defendant and any other person or vehicle at risk of a possible accident. There is no certainty as to how much alcohol consumed is equivalent to 40 micrograms of alcohol.

Mitigating Factors of the Offending

16. In the Defendant’s sworn Affidavit, the Defendant deposed that although he was fined for careless driving by the Police, he did not cause the collision with the other vehicle. It was the other vehicle that had collided with his car and caused substantial damage that he had to fix himself without any contribution from the other driver.

Aggravating Factors as an Offender

17. The Defendant was previously discharged for failure to comply in 2015. In 2016, the Defendant filed an application for a discharge without conviction for the same offence of failure to comply but it was dismissed and the Defendant was convicted and sentenced to pay a fine of $350.
18. This charge also albeit different carries a higher maximum penalty than the previous charge of failure to comply^[4]. The current charge imposes a maximum penalty of $5,000 tala and/or an imprisonment term of 5 years. The former charge imposes a six (6) months imprisonment or a fine not exceeding $1,000.
19. Defence Counsel refers to Leai v Police [1970-1979] WSLR 286 and Police v Fuiono [2011] WSSC 83 and submits that the Court may treat the previous conviction as a consideration of the Defendant’s character and to consider that the Defendant had stayed out of the Court system for 5 years since he was last convicted.
20. I accept that the general principle enunciated in the two case authorities cited is the need for the Court to safeguard against the imposition of a more severe sentence because of the Defendant’s previous conviction/s. Nevertheless, it is important to note that the application and reference by the Court to that general principle was primarily to determine whether the imprisonment term that was imposed by the Magistrate^[5] and proposed by Prosecution^[6] was appropriate in those two cases as has been development of the principle in earlier cases and Guide as cited^[7] in Police v Fuiono (above).
21. In Supplementary Submissions, reference is made by Counsel to the unreported decision of Police v Seumanu Douglas Ngau Chan (Unreported decision, 2020, Judge Schuster) in which the Court granted a discharge without conviction application for driving under the influence with 53 micrograms notwithstanding the Defendant had a previous conviction in 2013 of which I take judicial notice was for Negligent Driving Causing Injury of which the maximum imprisonment term is 7 years. As I do not have the reasoning for the granting of a discharge without conviction for the latter decision, it is difficult to accept that approach as an appropriate approach to be considered for this matter. It can be distinguished nevertheless from the current matter by virtue of the lesser micrograms of alcohol and the fact that the previous conviction was for a different type of offending.
22. In Police v Viane [2016] WSDC 32, Judge Roma adopted the approach taken by the Court in R v Mc Cabe [1985] 1 NZLR 361 in that the Court should take into consideration a previous discharge if it is for the same type of offending. The principle is not to consider that the person is now appearing before the Court for the same offence but the fact that he had the benefit of being discharged previously. Judge Roma after weighing all the aggravating and mitigating factors, discharged the Defendant without conviction.
23. When the Defendant appeared before Judge Clarke in 2016, His Honour also agreed with this approach particularly if the discharge is for the same offending. Notwithstanding, Judge Clarke declined the application to discharge the defendant without conviction.
24. This is the third application for a discharge without conviction and the previous applications were in respect of the same offence of failure to comply. While I accept that the Defendant has been charged with a different offence, it is in my respectful view the same type of offending.
25. The only difference in the two charges is that former is the failure of the Defendant to comply with directions for the use of the breathalyser machine while the latter is the successful administration of the test and the generation of a positive reading of the micrograms of alcohol. It is the same type of offending for which he had previously filed applications for discharge without conviction.
26. In Swami v Police [2012] NZHC 2725, Katz J at para [25] stipulated that,
    • “Courts have of course on occasion been willing to grant two or more discharges without conviction to the same offender. However, it has been recognized that a previous discharge without convictions for offending of the same type must count against a discharge on a later occasion: Morgan v Police and Police v McCabe.”
27. In Watson v Police [2015] NZHC 2598 at para [17] Asher J stipulated,
    • “I agree with Judge Sinclair’s observation that it would be unusual for the Court to consider a third application for a discharge without conviction. The Judge in placing weight on this relied on Swami v Police and Morgan v Police. The offending in the prior discharges in those cases were of the same type as the offending before the Court. The weight of such offending as a factor against a discharge is lessened if the prior convictions are for offending of a different type, as is the case here.”
28. As alluded to earlier, this is the same type of offending, therefore it is a factor that I will consider against the granting of another discharge without conviction ruling.

THE MITIGATING FEATURES AS AN OFFENDER

Personal History and Circumstances

29. The Defendant is a 50 year old male of Siusega who is currently employed as a SGP Project Manager with the United Nations Development Programme (UNDP), a post he had held for the past five years although he has been employed by UNDP for a number of years.
30. The Defendant is married and his wife has provided her full support for this application. They have a 10 year old son.
31. The Defendant pleaded guilty to the offence during his first court appearance in August 2021.
32. Mr Iosefa has also completed an alcohol rehabilitation program with Salvation Army Addiction Services. The report from Salvation Army stipulates that he fully participated in all aspects of the program and was involved in a public awareness program for 50 participants. Salvation Army reports that the Defendant engaged well in all aspects of counselling and that there is a low risk of re offending.
33. There are two sets of character references provided from September and November 2021.
34. The first set of character references dated in September 2021 from the UN Coordinator the former General Manager of BSP speaks volume of the Defendant’s exemplary performance and results and significant contribution to the community through the Small Grants Program and in his former capacity as Sales and Marketing Manager and member of Board of Trustees of the Samoa Leadership Program. The former recommended the Defendant for a leadership position in any public institution while the latter affirms that he is and will continue to be an asset to any organization.
35. The reports of November 2021 include a report prepared by Resident Representative for UNDP who has worked with Mr Iosefa for 28 months up to the date of his letter dated 24^th November 2021. The testimonial from Mr Sorenson speaks of the Defendant as a person who has excellent interpersonal skills, is well respected, hardworking and reliable. He has also presented the Court with a bleak picture of the consequences of a termination of his employment should a conviction be entered and a penalty of disqualification for a period of 12 months be imposed.
36. The Defendant’s wife who is a former employee of UNDP and an initiator of the SGP Portfolio also attests of the financial hardship if the Court should convict the Defendant and his employment is terminated by UNDP. He will not be able to continue funding the mortgage of their house at Vaitele and they will struggle to support themselves.
37. The Defendant’s cousin Reverend Nuuausala by letter dated 1^st December 2021 has also supported the Defendant. He relays that he has not known the Defendant to have a drinking problem. He was informed that the Defendant had failed the breath test and he supports the Defendant undergoing counselling.

Overall Gravity of the offending and Offender

38. After weighing the aggravating against the mitigating factors of the offending and the offender, I hereby find the gravity of the offending as moderate.

DIRECT AND INDIRECT CONSEQUENCES OF THE CONVICTION

39. The test to be applied in determining whether there is a direct and indirect consequence of a conviction is to consider whether there is a real and appreciable risk that such consequences will occur.
40. A letter from Mr Jorn Sorenson stipulates as follows,
    • “I wish to bring to your attention that shall the proceedings of his trial in the Court result in: (a) a conviction; and (b) his guilty conviction incurring the penalty of disqualification of holding or obtaining a driver’s license for a period of 12 months (or more if the Court deems necessary) this will significantly affect the employment status of Mr Lilomaiava Filia as the UNDP may have no choice but to terminate his contract, resulting in his loss of employment for both option (a) and (b).”
41. The letter from the Defendant’s employer confirms that there is a real and appreciable risk that the Defendant’s employment contract will be terminated if a conviction and a penalty of disqualification from holding a driver’s license for a period of 12 months is imposed by the Court. [Bold and Underlined for Emphasis]
42. The Defendant has had a previous conviction recorded since 2016 in which time he has been employed and continued to be employed by UNDP to date. The continual employment of the Defendant notwithstanding a previous conviction has not affected his employment to date which therefore infers and it is also my reading of the letter from Mr Sorenson that UNDP may terminate the Defendant’s contract for both options (a) and (b) which are the imposition of a conviction and a disqualification from driving.

Disproportionality Test

43. I must weigh the consequences against the gravity of the offending. The gravity of the offending I have found to be moderate and the consequences of the offending is the likelihood that a conviction and a disqualification is imposed, UNDP may terminate his employment. I accept that the consequences will be disproportionate to the gravity of the offending.
44. Nevertheless, I have considered that a previous conviction has not affected the employment of the Defendant with UNDP. Notwithstanding that he has a previous conviction he still continues to work and as noted, in 2021, was highly regarded as a leader within UNDP who has exceeded the expectations of both UN Coordinator and UNDP Resident Coordinator.
45. Defence Counsel has referred to similar cases where the Court has granted a discharge without convictions notwithstanding that the circumstance of those cases were more serious than the circumstances of this particular cases. I do accept that the circumstances of those particular cases referred to were more serious than the current ^[8] nevertheless, I take judicial notice of decisions on District Court database that the Defendants have had no previous convictions or previous court appearances which appears to distinguish all four cases from the current case.

PURPOSE FOR SENTENCING THE DEFENDANT

46. Section 6 of the Sentencing Act 2016 stipulates each of the principles of sentencing which the Court must consider. I must consider the gravity of your offending, your culpability and the seriousness of this type of offence as indicated by the maximum penalties prescribed for this offence.
47. The purpose for sentencing the Defendant today is,
    • (a) to promote in the Defendant a sense of responsibility for, and an acknowledgment of, that harm;
    • (b) to denounce the conduct in which the Defendant was involved; that is driving while under the influence of alcohol.
    • (c) to deter the Defendant or other persons from committing the same or a similar offence;
48. There has been a prevalence of alcohol related offences particularly traffic offences of which lives have been claimed prematurely. We are a month away from the Christmas and New Year’s Holiday which is usually a busy time for the police because of the quantum leap in cases of people driving under the influence particularly now with all restrictions removed.
49. It is the deterrence of the Defendant or any person driving under the influence that is one of the main purpose for sentencing the Defendant.

SHOULD THE COURT EXERCISE ITS DISCRETION TO DISCHARGE UNDER SECTION 69?

50. I will not exercise my discretion to discharge the Defendant.
51. I do take cognizance of all the program and activities that the Defendant has fully participated and coordinated. The real test for the Defendant is the continual application of the lessons he has learn into his everyday life. A conviction should be a reminder to the Defendant that the Court will not tolerate the commission of any more traffic offences committed under the suspicion or confirmation of alcohol consumption. He is a leader who is destined for great things and with a half century behind him, he has a fewer productive years left that he must devote to serving his family, work and community.

CONCLUSION

52. I hereby convict and discharge the Defendant.
53. As I am satisfied that there is a real and appreciable risk that his contract will be terminated if he is convicted and disqualified from driving, I will therefore not disqualify him from driving now that I have decided to convict him.
54. He is to pay prosecution costs of $300.00 forthwith.

JUDGE ATOA-SAAGA

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^[1] Section 40 (5) of the Road Traffic (Breathalyser) Amendment Act 2009.
^[2] 69. Discharge without conviction-(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is taken to be an acquittal.

^[3] 71. Conviction and discharge-(1) If a defendant is convicted of an offence, a court before which the defendant appears for sentence may, instead of imposing sentence, direct that the defendant be discharged, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
^[4] Section 40 O(1)(4) Road Traffic (Breathalyser) Amendment Act 2009.
^[5] Leai v Police [1970-1979} WSLR 286
^[6] Police v Fuiono [2011] WSSC 83
^[7] R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594-The Defendant appealed against imprisonment term.
Baumer v R (1988) 166 CLR 51- The Applicant appealed against imprisonment term.
R v Howe [1982] 1 NZLR 618- All six Appellants appealed against imprisonment term.
R v Ottowell [1970] 3 All ER 153- An appeal against an imprisonment term.
Police v Ward [1976] 1 NZLR 588-An appeal against an imprisonment term.
^[8] Police v Leota Matini Faasino (unreported decision of Judge Atoa-Saaga, 2020) Defendant crashed into a private property while operating a work vehicle. Police v Vui Friedrich (unreported decision of Judge Schuster, 2021). Defendant found with 87 micrograms of alcohol. Police v Vaai (unreported decision of Judge Papalii, 2019) Defendant was found with 82 micrograms.
Police v Lamour Hansell Vaai (unreported decision, 2020, Judge Atoa-Saaga). The Defendant was found with 45 micrograms so the circumstances of that Defendant is not more serious than the Defendant.