Police v Papalii [2011] WSSC 132 (25 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

FERILA PAPALII
female of Siusega.
First Accused

AND:

EFO MOALELE
female of Palisi and Lalovaea.
Second Accused

Counsel: P Chang and G Patu for prosecution
R Papalii for first accused
L R Schuster for second accused

Sentence: 25 November 2011

SENTENCE

Introduction

1. The accused Ferila Papalii and Efo Moalele are female police officers. They hold the ranks of constable and sergeant respectively but are currently under suspension pending the outcome of this case. They were jointly charged with grievous bodily harm under s.79 of the Crimes Ordinance 1961 which carries a maximum penalty of seven years imprisonment and with actual bodily harm under s.80 which carries a maximum penalty of two years imprisonment. Each of them was also separately charged with assault under s.78 which carries a maximum penalty of one year imprisonment. Both accused pleaded not guilty to all the charges against them.
   
2. At the trial that was held, constable Papalii was found guilty of all the charges against her. Sergeant Moalele was found guilty only on the charge of assault. The accused are now appearing for sentence on the charges in respect of which each of them was found guilty.
   
3. As counsel for the prosecution mentioned during the submissions on sentence that the assault in this case was a "continuous attack", I should, perhaps, point out that the case for the prosecution was conducted on the basis of joint charges of grievous bodily harm and actual bodily harm and two separate charges of assault. In fact, the separate charge of assault against the accused Moalele was filed separately and on a different date from the charge of assault against the accused Papalii. Both accused evidently conducted their respective defences on the basis of separate charges of assault and not a joint charge of assault. Section 23 of the Crimes Ordinance 1961 was also not cited in any of the assault charges so as to give an indication that the prosecution might be proceeding on the basis of a joint assault or "continuous attack" with regard to the assault charges.
   

Background

4. As it appears from the evidence adduced at the trial, this case arose from a police investigation into the killing of a young girl whose body could not be found. The prime suspects were the girl's parents. In the early morning of 13 January 2011, a team of police officers which included the two accused went to the village of Tiavea to find the body of the missing girl. They took with them the girl's parents who were then under police custody. When they arrived at Tiavea, the girl's father pointed out that her daughter was buried up in the mountains. The police went there with the girl's parents. It took about four hours. The police dug a hole about six feet at the place where the girl's father said his daughter was buried. The police did not find the girl's body there. The girl's father then said that his daughter's body had been abandoned in a river. The police went to the river and searched for the girl's body but could not find her body. At all these times, the girl's mother was also accompanying the team of police officers. She was under the supervision of the accused.
   
5. After searching the river, the police returned seaward to the village of Tiavea. When they got there, the girl's mother said that her daughter was buried behind the house they had been living in. The police dug another hole about six feet deep but again did not find the girl's body. The police then decided to go to the Lalomanu police post to have a rest.
   
6. At the Lalomanu police post, Faasalafa, the missing girl's mother, was taken into a room where she was made to sit on the floor. Also present in the room were the accused and another female police officer stationed at the Lalomanu police post but was not present at the search for the missing girl's body at Tiavea. That police officer testified that the accused Moalele questioned Faasalafa as to the whereabouts of her daughter's body. However, Faasalafa continued to lie about it. So the accused Moalele scolded Faasalafa that the police have suffered much because of her misleading the police. The same witness also said that twice the accused Moalele told Faasalafa to put up her fingers. Moalele then picked up a stick like the handle of a spade and hit Faasalafa's fingertips with it like a schoolteacher hitting the fingertips of a student with a stick. The Samoan words used by the witness were: "Na tago Efo tātā tumutumu lima o Faasalafa i le laau". The word "tātā" suggests that they were not powerful hits. There were no injuries found on Faasalafa's fingertips except pain on the left fingers.
   
7. The same police officer also testified that while the accused Moalele was questioning Faasalafa she was standing by with the accused Papalii. She said that someone then called on Moalele's cell phone and Moalele left the room to go outside to smoke a cigarette. That was after Moalele told the accused Papalii not to cause any injuries to Faasalafa. When the accused Moalele left and the accused Papalii questioned Faasalafa, Faasalafa continued not to tell the truth. Papalii then picked up the same stick used by Moalele and hit Faasalafa four times with it. The other eye witness who was the prisoner who came into the room testified that the accused Papalii hit Faasalafa three times with the stick. The last hit cut and fractured the bridge of Faasalafa's nose (nasal bone) resulting in extensive bleeding and Faasalafa falling unconscious to her side.
   
8. The accused Papalii was shocked and in a panic. She grabbed a cloth that was on a table and a sheet to stop the bleeding from Faasalafa's nose. The accused Moalele returned to the room a few minutes later. According to the evidence, she too was shocked by the sight of the injury on Faasalafa's nose. She cried and said to Papalii that this was exactly what she had told her not to happen - now she does not know what to do.
   
9. The police then rushed Faasalafa to the Lalomanu district hospital where she was medically examined and treated by a registered nurse. Later Faasalafa was brought to the National Hospital in Apia where she was given further treatments and was admitted for six days until 19 January. She was re-admitted for surgery on 27 January and discharged on 1 February.
   
10. The wounds found on Faasalafa were: (a) an open wound across her mid-nose which consisted of a 5cm deep cut and a depressed fracture of the nasal bone, (b) a swelling on the left wrist and forearm, (c) pain on the left fingers, (d) swelling and pain on the left knee, (e) a broken ankle bone, and (f) bruises, swelling and tenderness on the left ankle. On the evidence given by the prosecution, I decided that the injury to the victim's nose was really serious and constituted grievous bodily harm. The doctors, however, did not classify it as a life threatening injury which shows that it was not dangerous to life.
    

The accused

11. The accused Papalii is 23 years old. She was born in New Zealand but she grew up in New South Wales when her family moved to Australia. She moved to Samoa in 2006 and joined the Samoan police force in 2007. At the time of this offending she had been a police officer for about 3½ years.
    
12. The testimonials from this accused's family, her friends, and members of her church in Sydney all show that the accused Papalii has excellent personal qualities. She was a role model for the youth of her church in Sydney. Likewise, the testimonials from the pastors of the churches she attends in Samoa. One of the testimonials from a member of the accused's family shows that it was always the accused's dream as a youth to become a police officer or a lawyer. I have taken all these testimonials which speak very highly of the accused into account.
    
13. The testimonial from the Commissioner of Police also speaks highly of Papalii. It describes the accused as a very loyal, honest, and trustworthy member of the Samoan police force and that her work performance, attendance, and conduct were of a high standard. A testimonial from one of the police superintendants also speaks highly of this accused's character.
    
14. From all the testimonials on the accused Papalii, it is clear that this offending was totally out of character. She is also a first offender. The pre-sentence report also shows that this matter has been settled between the victim and both accused and the victim has accepted their apologies.
    
15. The accused Moalele is 32 years old. She joined the Samoan police force in the year 2000. In 2006 she resigned from the police force when her family moved to New Zealand. In 2008 she returned to Samoa and sat the police sergeants examination which she passed. She was then made a sergeant.
    
16. The testimonial from the Commissioner of Police shows that this accused had been a very loyal, honest, friendly, and trustworthy member of the Samoan police force and that her work performance, attendance, and conduct were of a high standard. The Commissioner of Police also says that Moalele has the potential to become a commissioned officer and he has no doubt that she will pass the exams for the commissioned officers rank. The other testimonials show that Moalele is a capable police officer and a person of good character. The victim has also written to the Court pleading for mercy on Moalele.
    
17. Counsel for Moalele told the Court that several members of the accused's family had served in the Samoan police force in the past. Her father was also a very senior member of the Samoa police force before he retired and the accused has always wanted to follow in her father's footsteps. It is her wish and dream.
    
18. It is evident from the testimonials on both accused that these are two police officers with outstanding personal qualities. But they had been involved in the commission of these offences.
    

Mitigating factors

19. The principal mitigating factor in favour of the accused Papalii is the fact that she is a first offender. Some leniency is also to be extended to her because of her excellent character prior to the commission of these offences, the fact that at the time of the offending the police were frustrated with the victim and her husband for not disclosing where their daughter was buried but instead misled the police which resulted in much wasted efforts by the police, and the fact that the accused has apologised to the victim and her apology was accepted.
    
20. I am also conscious that a conviction would result in the termination of the accused Papalii's career as a police officer. Her wish and dream of becoming a police officer will be brought to an end. In her circumstances, that must be punishment in itself.
    
21. As for the accused Moalele, the principal mitigating factor in her favour is also the fact that she is a first offender. Other factors which may go to leniency are her previous very good character prior to the commission of this offence and the fact that she had had a very bright career in the police force and she evidently has the potential to go further in the police service. She, too, was frustrated with the victim. But the hits with the stick that she delivered to the victim's fingertips were not powerful. They resulted in no injuries except the pain to the victim's left fingers.
    
22. This accused also apologised to the victim and her apology was accepted. The victim has pleaded for mercy on her.
    

Aggravating factors

23. There are several aggravating factors to the offending by Papalii. She first kicked the victim twice on each side while she was wearing boots. She then picked up a stick which looked like the handle of a spade and struck the victim three or four times while the victim was still sitting cross-legged on the floor. These were powerful strikes. The last of these strikes hit the victim on the nose breaking her nasal bone resulting in extensive bleeding and the victim falling to her side unconscious. The other injuries sustained by the victim from this assault have already been set out. The injury to the victim's nose resulted in her being admitted at the hospital for a total of about thirteen days.
    
24. At the time of the assault on the victim, she was under police custody and in a helpless and defenceless situation. As a police officer, the accused Papalii should have known that assaulting another person with a stick was against the law. Even though she was frustrated because of the victim's continuing lies as to where her daughter's body was, she should have known better as a police officer what not to do.
    
25. In respect of the accused Moalele, it is difficult to see any aggravating factors to her offending. She hit the victim's fingertips only twice. These were not powerful hits. They caused no injuries to the victim's fingertips except pain to her left fingers.
    

Discharge without conviction

26. Counsel for the accused Moalele in his oral submissions sought a discharge without conviction in terms of s.104 of the Criminal Procedure Act 1972. Section 104 insofar as relevant provides:
    

"(1) 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:

"(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 other special circumstance 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.

. . . .

(5) A discharge under this section shall be deemed to be an acquittal.

(6) A Court discharging any person under this section may, if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted him, and the provisions of every such enactment shall apply accordingly".

27. The approach of the New Zealand Courts to the question of a discharge without conviction is to be found in three decisions of the New Zealand Court of Appeal, namely, Fisheries Inspector v Turner [1978] 2 NZLR 233, 241; Police v Roberts [1991] 1 NZLR 205, 210; R v Hughes [2008] NZCA 546, para 16.
    
28. In Fisheries Inspector v Turner [1978] 2 NZLR 233, 241, Richardson J stated:
    

"In considering the exercise of the discretion under s.42 [of the Criminal Justice Act 1954] the Court is required to balance all the relevant public interest considerations as they apply to the particular case: or, as s.42 (1) puts it, 'after inquiry into the circumstances of the case', which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction, and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s.42"

29. In Police v Roberts [1991] 1 NZLR 205, 210 Bisson J stated, in a passage cited by Vaai J in Pale v Attorney General [2010] WSSC 122 para 15:
    

[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".

30. In the recent case of R v Hughes [2008] NZCA 546, para 16 the New Zealand Court of Appeal, with reference to the judgment of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233, said:
    

"Justice Richardson (as he then was) identified a three step approach to the exercise of the Court's discretion under s.42. The Court must consider first, the gravity of the offending; secondly, the consequences of conviction; finally, whether these consequences are out of all proportion to the gravity of the offending identified at step one".

31. In my view, the three step approach identified in R v Hughes [2000] NZCA 544, para 16 as derived from the judgment of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 is applicable to s.104 (1) (b) of our Criminal Procedure Act 1972 on the question of discharge without conviction.
    

Discussion

32. In passing sentence on the accused Papalii, I have decided to deal first with the offence of grievous bodily harm. In doing so, I will take into account the totality of her offending instead of focusing just on the injury to the victim's nose which was the only injury that amounted to grievous bodily harm. In this way, the sentences for the offences of actual bodily harm and assault can be made concurrent with the sentence for the offence of grievous bodily harm.
    
33. Having regard to the maximum penalty of 7 years imprisonment for the offence of grievous bodily harm, the need for deterrence in this case, as well as the mitigating and aggravating factors relating to the offending, I will take 3 years as the starting point for sentence. From that 3 years I will deduct one year due to the fact that the accused is a first offender. That leaves 2 years. Given the previous excellent record of the accused as it appears from her testimonials as well as her other personal circumstances, I have decided to show mercy on her and deduct a further year. That leaves one year. The accused Papalii is therefore sentenced to one year imprisonment on the charge of grievous bodily harm.
    
34. For the charge of actual bodily harm, the accused Papalii is sentenced to 9 months imprisonment. For the charge of assault, she is sentenced to 6 months imprisonment. All sentences to be concurrent.
    
35. In respect of the accused Moalele who has been found guilty of assault, I have given careful consideration to the submission by her counsel that she be given a discharge without conviction under s.104 (1) (b) of the Criminal Procedure Act 1972. In this regard, I have to consider first, the gravity of her offending; secondly, the consequences of a conviction on her particularly her career as a police officer; and finally, whether these consequences are out of all proportion to the gravity of her offending.
    
36. As it appears from the evidence, the gravity of the assault on which the accused Moalele was found guilty is towards the low end of the scale. She has had a clean police record. The consequences of a conviction on her would be to bring to an end what has been a very promising career in the police force and terminate her dream of following her father's footsteps. After weighing up the gravity of this accused's offending against the consequences of a conviction on her, I have come to the conclusion that the consequences of a conviction would be out of all proportion to the gravity of her offending. She is, therefore, discharged without conviction.
    
37. The accused Moalele is, however, ordered to pay $500 costs to the prosecution.
    

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CHIEF JUSTICE