Pale v Attorney General [2010] WSSC 122 (15 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

MAUGALOTO PALE of Saina and Falevao
Appellant

AND:

THE ATTORNEY GENERAL
Respondent

Counsel: Precious Chang for the appellant
Iuni Sapolu for the respondent

Decision: 15 October 2010

DECISION OF THE COURT

1. The appellant and his co-defendant were convicted of assault after a defended hearing in the District Court on the 24th July 2009. On the 31st July they were both sentenced and ordered to come up for sentence if called upon within 8 months if they were to re-offend. The appellant appealed initially against both conviction and sentence but has abandoned the conviction appeal. Neither he nor his co-defendant was legally represented at the defended hearing.

2. There are two aspects to the sentence appeal. The first is that the sentence is manifestly excessive in that the sentencing judge failed to give due weight to the mitigating personal circumstances of the appellant. The second is that the circumstances of the offending were not given sufficient consideration. The appellant contends that given his personal circumstances and circumstances surrounding of the offence, the appellant was entitled to a discharge without conviction.

Factual Background

3. The appellant and three others left the Johnny's Bar Club at Vaitele in a taxi after midnight. They wanted to pick up another one who was already walking but the taxi driver (the victim) responded he cannot fit a fifth passenger. He told them he will return to pick up the fifth passenger. The appellant was sitting at the front seat. After they drove past the 5th passenger the victim was hit from behind with a bottle injuring the victim and causing the taxi to go off the road and was damaged. The appellant and three others then assaulted the victim..

4. The sound of the crashed taxi caused other people nearby to run to the scene. These people who testified saw the victim being beaten by the appellant and three others. When the victim managed to flee he was chased by the appellant and two others who again beat up the victim the second time.

5. Although the appellant walked away from the scene of the second beating he called out to the others to continue beating the victim. One of the eye witnesses hit by a rock thrown by one of the passengers was hospitalised for one week.

6. The passenger who struck the victim with the bottle pleaded guilty to causing actual bodily to the victim and was sentenced to four months imprisonment. The fourth passenger who threw a rock which struck one of the eye witnesses pleaded guilty to the assault of the victim, causing actual bodily harm to the eye witness and throwing stones to the danger of persons. He was sentenced to 4 months imprisonment, followed by six months probation with 100 hours community work.
   
7. Both the appellant and his co-defendant testified at the defended hearing. Their denial of any involvement in the assault was rejected by the judge who believed the version given by the prosecution witnesses. Both were convicted and remanded in custody for sentence.
   

Sentencing Remarks

8. There are no sentencing notes. Neither did the judge seek the assistance of a probation report. Counsel for the appellant appeared on the sentencing date and sought an adjournment on the basis that she needed time to take full instructions and obtain supportive letters in mitigation. Application was not granted and the judge proceeded to sentence the appellant and his co-defendant.
   

Submissions by the Appellant

9. Essentially counsel for the appellant submits that the appellant at the age of 27 years with no previous convictions has played for the Toa Samoa Rugby League in 2008, and in 2009 he was made vice-captain, the conviction against his name could impeded future overseas travel for the appellant in his pursuit of a professional career in sports. His co-defendant who is not a professional rugby player was given the same sentence as the appellant. Given the personal circumstances of the appellant and the circumstances of his offending the appellant was entitled to be treated differently and more leniently than his co-defendant. He was entitled to a discharge without conviction under section 104 of the Criminal Procedure Act 1972 which reads as follows:
   

104 Power of Court to discharge defendant without conviction or sentence.

(i) If, after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence is of the opinion that, although the charge is proved:

(ii)

• (a) The offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment; or
  
• (b) Having regard to the age or some other special circumstances of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed; it may discharge that person without convicting him, unless a minimum penalty is expressly provided for the offence by any enactment."
  

10. Counsel submitted that the appellant's offending was trivial compared to his co-offenders. Counsel attempted to limit the appellant's involvement in the assault to a single punch after the victim crashed his taxi cab as a result of a blow with a bottle.
    

Discussion

11. The mitigation factors submitted by counsel in support of the appeal for the court to exercise its discretion to discharge without conviction are similar to those submitted by counsel in the District Court. Only one testimonial letter has been produced although in her submissions she sought an adjournment on the sentencing date over twelve months ago that she wanted to obtain supporting letters and obtain full instructions. Nevertheless I agree with counsel that a Probation Report should have been obtained.
    

12. The assault on the victim as counsel for the respondent in my view correctly submitted, cannot be described as trifling. In the first place the assault was committed on a taxi driver late at night and while his taxi was in motion. Secondly the first strike with a bottle injured the victim and caused the accident.

13. With full knowledge of the injury to the driver and the damage to the car after the first strike with the bottle, the appellant threw the first punch at the victim and the others joined in the assault. As the victim ran away the appellant was seen by one of the eye witnesses giving chase, assaulted the victim and encouraged others to continue to assault the victim.

14. In particular the assault was unprovoked; it was an assault by a number of attackers on one victim; it seems there was a gang element to the attack. The offending was indeed very serious. Despite the fact that the sentencing judge did not seek the assistance of the probation service prior to sentencing, I am of the view that the appellant and his co-offender were dealt with extremely leniently.

15. In considering whether the court should exercise its discretion to discharge without conviction counsel for the appellant relied on what the NZ Court of Appeal said in Police v Roberts (1991) 1 NZLR 205 at 210:

"In the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court's discretion if the direct and indirect consequences of the conviction are, in the Court's judgment, out of all proportion to the gravity of the offence. That must be the overriding consideration. The words "out of all proportion" point to an extreme situation which speaks for itself."

In the earlier NZ Court of Appeal decision in Fisheries Inspector v. Turner (1978) 2 NZLR 233, Richardson said that if in the court's judgment the test of disproportionality was met it was proper for a discharge to be given. Both judgments in Turner and Roberts infer that meeting the test of disproportionality is both essential and decisive. The court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence before it may consider the exercise of the discretion.

16. Other than the gravity of the appellant's offending there is also no signal from the appellant that he is willing to make reparation or offer amends to the victim who was injured and had his car damaged by the accident. The phrase gravity of the offence must in my view include not only the offence but anything that may affect the court's subsequent assessment of the overall culpability. The disproportionality test has not been met.

Result

(a) For the foregoing reasons the appeal against sentence is dismissed.
(b) The appellant will pay costs of $500.

JUSTICE VAAI