Police v Ropati [2018] WSSC 131 (2 November 2018)

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Case name:	Police v Ropati

Citation:	[2018] WSSC 131

Decision date:	02 November 2018

Parties:	POLICE v FEPULEAI ATILLA ROPATI male of Vaitele-uta, Iva and Saleaula.

Sentencing date(s):	02 November 2018

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- The Appeal is allowed. The sentence of discharge without conviction is quashed and the matter remitted to the District Court for re-hearing with the direction that section 17 of the Sentencing Act 2016 is to be applied to any disputed fact between the parties. - I have not directed that the District Court find as an aggravating factor ‘abuse of position of power’ and leave this open to the Judge to reconsider on further submission by counsel as the matter is remitted for re-hearing. - I thank both counsel for their submissions and assistance.
Representation:	Ms. R Titi for Appellant Mr. A. M Leung Wai for the Respondent

Catchwords:

Words and phrases:	Appeal is allowed; discharge without conviction is quashed; the President of the Land and Titles Court of Samoa; causing actual bodily harm with intent.

Legislation cited:	Crimes Act 2013, Criminal Procedure Act 2016, Criminal Procedure Act 1972, Interpretation Act 2015, Criminal Procedure Act 2011 (New Zealand) (“CPA NZ”). Sentencing Act 2002 (New Zealand),

Cases cited:	R v Malu [2017] NZCA 546, R v Smyth [2017] NZCA 530, New Zealand Police v Clapshaw [2018] NZHC 1510. H v R [2012] NZCA 198, His Honour Vaai J in Pale v Attorney General [2010] WSSC 122 (15 October 2010), Her Honour Tuatagaloa J in Meredith v Attorney General [2017] WSSC 148 (11 December 2017), CA 20/18, (Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 148). Lawrence v New Zealand Police [2016] NZHC 148 at paragraph 7, H v R [2012] NZCA 198. R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222, R v Rajamani [2008] 1 NZLR 723, (Gaunt v New Zealand Police [2017] NZCA 590; AEZH v New Zealand Police [2016] NZHC 1279)). As Cull J also stated in Walford v New Zealand Police [2017] NZHC 2627 where an appeal by a defendant was brought pursuant to section 229 and 244 of the CPA NZ: (Austin, Nichols & Co Inc v Stichting Lodestar), Attorney General v Taioalo [2010] WSCA 3 (7 May 2010); Kerslake v Attorney General [2014] WSSC 87 (23 December 2014). H v R [2012] NZCA 198 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620, Weng v New Zealand Police [2014] NZHC 2586; Z v R [2012] NZCA 599, Wanoa v New Zealand Police [2018] NZHC 259; Farhat Buksh v New Zealand Police [2014] NZHC 1670; and Chammaa v New Zealand Police [2015] NZHC 1893); R v Munro [2007] NZCA 102, [2008] 2 NZLR 87, R v Owen [2007] NZSC 102; [2008] 2 NZLR 37, Xu v Mayes [2014] NZHC 349 Chammaa v New Zealand Police [2015] NZHC 1893, R v Malu [2017] NZCA 546 and Brown v R [2015] NZCA 325.

Summary of decision:

[1] The Respondent was charged with one charge of assault with intent to cause grievous bodily harm wounded his victim contrary to section 118(1) of the Crimes Act 2013 (“CA 2013”). In the alternative, the Respondent was charged with causing actual bodily harm with intent contrary to section 119(1) of the CA 2013.

[2] On the hearing date of the 25th April 2018 before this Court, the charge of assault occasioning grievous bodily harm was withdrawn by leave and dismissed. The Respondent entered a guilty plea to the charge of causing actual bodily harm with intent. The maximum penalty for that offence is 7 years imprisonment.

[3] On application by the Respondent and there being no objection by the Appellant, sentencing of the Respondent was transferred to the District Court for mention on the 1st May 2018. As set out by the learned District Court Judge (“the Judge”) in her sentencing judgment, two meetings In-Chambers were held on the 1st May and 8th May 2018. The matter set down for sentence on the 11th May 2018.

[4] On the sentencing date, the Respondent was discharged without conviction pursuant to section 69 and 70 of the Sentencing Act 2016 (“SA 2016”). It is that decision that is under appeal.

[5] The Appellant has filed three different appeal documents. The first Notice of Appeal is dated the 28th of May 2018.The Attorney General on behalf of the Appellant appealed the sentencing decision on the grounds that:

(a) The sentencing decision to ‘pay costs and discharge without conviction’ was manifestly inadequate having regard to all the surrounding circumstances of the offending;

(b) The Honourable Judge erred in fact and/or law in finding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence; and

[6] By ‘Further Grounds of Appeal’ dated 28th June 2018, the Attorney General then further appealed the sentencing decision on the grounds that:

(a) The Honourable Judge erred in law / fact in not placing sufficient weight / consideration to the victim impact report in the assessment of the gravity of the offending;

(b) The Honourable Judge erred in law / fact in the assessment of relevant factors regarding the victim’s injuries;

(c) The Honourable Judge erred in law / fact in not taking into account / placing sufficient weight to all relevant aggravating features of the offending;

(d) The Honourable Judge erred in fact / law in finding during her sentencing decision that “On this analysis therefore, it is arguable that the injury borders on assault on the high end of the spectrum. At the most serious, actual bodily harm under section 119(2) CA given the injury did interfere with the victim’s health and comfort requiring medical attention”, and finding that “the Respondent was reckless.”

[7] In the Appellant’s third appeal notice being the “Amended Further Grounds of Appeal” filed the next dated on the 29th June 2018, the Attorney General further appealed the ‘sentencing decision’ on the grounds that:

(a) The Honourable Judge erred in law / fact in not placing sufficient weight / consideration to the victim impact report in the assessment of the gravity of the offending;

(b) The Honourable Judge erred in law / fact in the assessment of relevant factors regarding the victim’s injuries;

(c) The Honourable Judge erred in law / fact in not taking into account / placing sufficient weight to all the relevant aggravating features of the offending;

(i) Considering provocation as a relevant consideration for the discharge application, given the level of undisputed violence in the actual assault;

(ii) Having considered that provocation was relevant to the Court, erred in not allowing evidence to be called in relation to the disputed issue of provocation; and

(f) The Honourable Judge erred in law / fact in the overall assessment of all the relevant facts / circumstances surrounding the offending.

[8] The Appellant’s written submissions addresses the grounds of appeal under the headings and in order: “Ground 1 – (a)”, “Ground 2 & 3 (b) and (c)”, “Ground 4 – (d)”, “Ground 2 – (f)”, “Ground 3 – (g), and “Ground 4 – (h)”. I do not understand how these appeal ground numbers and references relate to the three Notices of Appeal.

[10] The facts set out in the Summary of Facts are largely not in dispute. The Respondent is the President of the Land and Titles Court of Samoa. He is 50 years old and married with three children.

[11] On the night of the 15th December 2017, the Respondent attended the end of year function held at the Ministry of Justice and Courts Administration (MJCA) for the judiciary and staff. The function was held in a conference room at the MJCA, Mulinu’u. The end of year function included alcohol and music.

[12] The victim is a 55 year old male who was also present at the function. He is a security guard at the MJCA. He was “as usual” doing his security rounds of the building and compound.

[13] At about 9.00pm, the party approaching an end and most of the judiciary having left the function, the Respondent, another Land and Titles Court judge and some other staff remained. When the victim arrived, he sat on one of the remaining tables and a staff member approached and gave him two bottles of beer. The victim sat at the table with his beers watching and laughing at other staff members dancing and enjoying themselves on the dance floor. The Respondent at this time was outside with the another Land and Titles Court judge.

[14] Not long after, the Respondent and the other Land and Titles Court judge walked back inside to the function room. According to the Summary of Facts, the Respondent walked directly to the victim, stood in front of the victim’s table where the victim was seated, reached for a half empty bottle which was on the table and struck the victim on the top of his head with it. The bottle shattered. The victim was taken by surprise and looked at the Respondent.

[15] According to the Summary of Facts, the Respondent then said to the victim, “Fai aku foi e aua e ke igu” (I told you not to drink). On saying this, the Respondent again reached for another half empty bottle and aimed a second strike to the victim’s head. However, the victim quickly put up his hand to cover his head and the bottle hit the victim’s hand, the bottle breaking into pieces. The victim then stood up from his chair to leave but the Respondent then threw a punch towards the victim, which the victim managed to dodge and the victim then quickly walked out of the room.

[16] The victim did not inform his wife or children about the matter but ‘about a week and a few days after’, the victim did not feel well and was taken to the hospital. He was examined on the 27th December 2017. The examining doctor’s report noted:

“On examination, the scalp has old cuts evidence with pus suggestive of old wounds greater than 24 hours. There were no other visible injuries sited (sic) and a scalp x-ray was not done as there are no neurological deficit or complaints.”

[17] The victim was referred to a nurse for dressing and other treatment. The nurse’s report set out at paragraph 17 of the Summary of Facts refers to the cleaning of the wound. The nurse’s report referred to the recovery of glass bottle fragments on the gauze (kosi) and from victim’s scalp.

[18] On the 2nd January 2018, the victim continued to feel unwell and was taken to a doctor who prescribed more medication to help with the pain and healing process. The Respondent was then cautioned, interviewed and charged by Police on the 5th February 2018.

[20] These facts are generally undisputed except for the sequence of events immediately prior to the assault. I deal with the disputed facts below.

[21] The proportionality test to be applied on a discharge without conviction application involves an assessment of (a) the gravity of the offending; (b) the direct and indirect consequences of a conviction; and (c) whether the consequences of a conviction are out of all proportion to the gravity of the offending.

[22] A key question that arises in this appeal is what approach the Court is to take on an appeal by the Attorney General where the District Court has discharged the Respondent without conviction in terms of the proportionality test. Counsel for the Respondent submits that on appeal this Court is restricted to errors of law and/or fact. These errors do not entitle the appellate Court to consider the proportionality test afresh but to apply the approach to Crown appeals for example in R v Malu [2017] NZCA 546, R v Smyth [2017] NZCA 530 and New Zealand Police v Clapshaw [2018] NZHC 1510.

[23] Following questioning by the Court, the Appellant’s later submissions in their Supplementary Memorandum (Oral) relies on H v R [2012] NZCA 198 (which I refer to in detail below) to contend that on appeal, this Court carries out its own evaluation and reaches its own conclusion on the proportionality test.

[24] In my respectful view, the approach to apply in Samoa to an appeal brought pursuant to section 147 of the Criminal Procedure Act 2016 (“the CPA 2016”) following the determination of an application for discharge without conviction is the same approach as in New Zealand where there is a refusal to grant a discharge without conviction at first instance. The proportionality test is “a matter of fact requiring judicial assessment, which can be subject of appeal on normal appellate principles.” The appeal Court is to consider the proportionality test afresh.

[25] This approach is consistent in my view with the appeal being a ‘general appeal’ and the approach earlier adopted for example by His Honour Vaai J in Pale v Attorney General [2010] WSSC 122 (15 October 2010) and Her Honour Tuatagaloa J in Meredith v Attorney General [2017] WSSC 148 (11 December 2017), albeit under the earlier appeal provisions contained in the repealed Criminal Procedure Act 1972. It is also consistent with the recent judgment of the Court of Appeal in the matter of CA 20/18 where name suppression orders are in place in respect of the Defendant. The Court of Appeal reached the same conclusion as the Supreme Court Judge and therefore concluded that the Supreme Court Judge did not err. Neither the new CPA 2016 or the SA 2016 have materially changed in my view the approach to adopt in considering the proportionality test.

[26] Counsel submit that the Appellant may bring this appeal on the basis that the discharge without conviction is an acquittal. The Court of Appeal in CA 20/18 has only recently determined this question in context of the grant of a discharge without conviction granted in the Supreme Court on appeal to the Court of Appeal. The Court of Appeal stated at paragraph 14 that by virtue of section 10 of the SA 2016, it “operates to treat a judicial order discharging a defendant without conviction as a sentence.”. The Attorney General may therefore appeal to the Supreme Court against the sentence of the Respondent pursuant to section 147(1)(c) of the CPA 2016 and I treat this appeal accordingly.

[27] This appeal is a ‘general appeal’ as stated in the division heading preceding section 147 of the CPA 2016 which states “Division 2 – General Appeals”. This heading forms part of the CPA 2016 (section 9(4)(d), Acts Interpretation Act 2015 (“AIA”)) and from which I may derive the intention of Parliament (section 7(3), AIA) that the appeal is intended to be a general appeal.

[28] A perusal of Division 2 and the appeal rights contained in that division do not in my view restrict the general nature of appeals under that division. The right of appeal by the Attorney General is therefore a general right of appeal on fact and law (Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 148).

[29] The question that then arises is when considering the proportionality test for a discharge without conviction, does the appellate Court consider the proportionality test afresh?

[30] To assist me with determining this question, I have referred to the New Zealand approach from which Samoa has taken reference on the question of discharges without conviction. An appeal by a defendant on a refusal to grant a discharge without conviction is brought pursuant to section 229 and 244 of the Criminal Procedure Act 2011 (New Zealand) (“CPA NZ”). As Thomas J stated in Lawrence v New Zealand Police [2016] NZHC 148 at paragraph 7:

“A refusal to grant a discharge without conviction is a decision both as to conviction and as to sentence, and an appeal is treated as one against both conviction and sentence.”

[31] Importantly, an appeal by a defendant is not restricted to a question of law. This is key to the different approaches applied on an appeal by a defendant and one by the Crown on the grant or refusal of a discharge without conviction.

[32] For the Crown, where an application for discharge without conviction is granted, Crown appeals are governed by section 296 of the Criminal Procedure Act (NZ). This requires the Crown to first obtain leave to appeal and the appeal is then restricted to a question of law. This limitation restricting the Crown to appeals on questions of law does not exist in Samoa on an appeal to the Supreme Court from a decision of the District Court to discharge a defendant without conviction.

[33] The New Zealand approach to general appeals (not restricted to questions of law) on a refusal to grant a discharge without conviction was considered in H v R [2012] NZCA 198. There, the New Zealand Court of Appeal referred to and re-affirmed its earlier judgment in R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 that the determination of the proportionality test in section 107 of the Sentencing Act 2002 (New Zealand) (identical to section 70 of the Sentencing Act 2016) is not a matter of discretion but of fact requiring judicial assessment. As such, it is subject to appeal on ordinary appellate principles. In that sense, on appeal on ordinary appellate principles, an appellant is entitled to the proportionality test being considered afresh by the appellate court (paragraph 36, H v R (supra)). In H v R, the Court of Appeal added that the failure by the High Court to consider the proportionality test afresh from the District Court was an error of law.

[34] In H v R, the Court of Appeal referred to the New Zealand Supreme Court judgment in R v Rajamani [2008] 1 NZLR 723, authority for the proposition that matters of fact requiring judicial assessment is not discretionary and on ordinary appellate principles, the appellate court can intervene if it finds the trial judge’s finding wrong.

[35] The approach adopted in H v R to appeals on a refusal of a discharge without conviction is consistent with earlier New Zealand authorities. In R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 preceding H v R, the New Zealand Court of Appeal approached the appeal in the same way. The Court of Appeal stated in R v Hughes (supra):

“[66] However, Gendall J appropriately approached the appeal, applying ordinary appellate principles. He concluded:

“[43] I have independently come to the same view as Judge Harrop that in undertaking the balancing exercise and accepting some adverse consequences to the appellant, such as is, they are not out of all proportion to the gravity of the offence under s 21(1)(b) of the Summary Offences Act 1981.” (emphasis added)

[36] It is also consistent with cases that have followed H v R (supra). Appeals by a defendant on a refusal to grant a discharge without conviction are a “general appeal” and proceed by way of rehearing (Gaunt v New Zealand Police [2017] NZCA 590; AEZH v New Zealand Police [2016] NZHC 1279)). As Cull J also stated in Walford v New Zealand Police [2017] NZHC 2627 where an appeal by a defendant was brought pursuant to section 229 and 244 of the CPA NZ:

“[18] Because s 107 is a question of fact requiring judicial assessment, an appeal against a finding that s 107 is not satisfied is an appeal on ordinary appellate principles (Austin, Nichols & Co Inc v Stichting Lodestar), not an appeal against the exercise of discretion. Accordingly, the Court must come to its own view on the merits.” (emphasis added)

[37] In his able submissions, counsel for the Respondent contends two key arguments. The first is that the law in New Zealand on this point is not yet settled. In his written submissions of 11th September 2018, it is submitted:

“11. ...there are contradictory judgments pertaining to this issue of whether a discharge without conviction is an appeal against discretion or an appeal against judicial assessment in New Zealand.

12. Whilst the Court of Appeal is higher than the High Court, we submit that the applicable principles for appeals relating to discharge without convictions is not yet settled law in New Zealand because counsel was not able to find any decision by the (NZ) Supreme Court on this issue.”

[38] Second, counsel for the Respondent submits that the Court of Appeal in H v R was ‘incorrect when it ruled that an appellate Court is entitled to consider the matter afresh.’ The Respondent contends that general appeals of this nature are limited to an examination of:

(a) an alleged error of law as formulated for example by the Court of Appeal in Attorney General v Taioalo [2010] WSCA 3 (7 May 2010); and

(b) an alleged error of fact as formulated for example in Kerslake v Attorney General [2014] WSSC 87 (23 December 2014).

[39] The Respondent’s second submission is that on an appeal of this type, this Court should apply the approach cited at paragraph 12 of the judgment of His Honour Sapolu CJ in Kerslake v Attorney General [2014] WSSC 87 (23 December 2014). I am urged to restrict the approach on appeal to the following:

“(a) An appellate Court is performing a review function, not substituting its own view of the evidence.

(b) An appellate review of the evidence must give appropriate weight to the advantages the District Court Judge may have had in assessing the honesty and reliability of the witnesses.

(e) Under our judicial system, the body charged with finding the facts in this case is the District Court. Appellate Courts should not lightly interfere in this area.

(f) An appellant who invokes a right to appeal under s.34 of the Act must recognise that this Court is not conducting a retrial on the written record. An appellant must articulate clearly and precisely in what respect or respects the decision appealed from is said to be unreasonable and why, after making proper allowance for the points made above, the decision should nevertheless be set aside.”

[40] In my respectful view, the New Zealand law on this question seems to me to be settled law. The proportionality test in section 107 of the Sentencing Act 2002 (New Zealand) (identical to section 70 of the Sentencing Act 2016) is mandatory. It must first be met before the Court then considers the exercise of its discretion whether to grant a discharge or not pursuant to section 106 of the Sentencing Act 2002 (New Zealand), materially identical to section 69 of the Sentencing Act 2016.

[41] Consequently, the proportionality test in section 107 is “a matter of fact requiring judicial assessment, which can be subject of appeal on normal appellate principles.”: R v Rajamani [2008] 1 NZLR 723; H v R (supra) and R v Hughes (supra). The discretion only arises after section 107 is satisfied and section 106 is subsequently considered.

[42] My reasons for this conclusion are these. In R v Hughes (supra) which has been adopted and applied in Samoa on applications for discharge without conviction, the New Zealand Court of Appeal further stated:

“[8] Although the heading to s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.

[9] In R v Rajamani [2007] NZSC 68; [2008] 1 NZLR 723, the Supreme Court considered a discretion under s 374(4A) Crimes Act 1961 for a trial judge to proceed with a trial with ten jurors without the agreement of the prosecutor and the accused, which could be exercised if the Court considered the trial should proceed with fewer that 11 jurors “because of exceptional circumstances”. The Supreme Court said the determination of whether there were exceptional circumstances was not a matter of discretion; it was “a matter of fact requiring judicial assessment”: at [4]. The discretion to proceed with ten jurors existed only if there were exceptional circumstances

[10] If that analysis is applied to the provisions in issue in the present case, the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani at [5]. The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.” (emphasis added)

[43] This approach was re-affirmed by the New Zealand Court of Appeal in H v R [2012] NZCA 198 when the Court of Appeal reiterated:

“[32] In Hughes, this Court found that Gendall J had correctly applied ordinary appellate principles to the decision made in the District Court on the proportionality test under section 107. Gendall J had relied on the following passage from the Supreme Court’s judgment in Austin, Nichols & Co Inc v Stiching Lodestar:

‘Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.’

[33] Gendall J was found to have correctly applied the appellate principles relevant to a decision involving judicial evaluation rather than the exercise of a discretion. He had independently applied his mind to the proportionality test and had reached the same view as the District Court Judge.

[34] We note that, since Hughes, the Supreme Court has again emphasised the distinction between the exercise of judicial discretion and matters requiring judicial evaluation in R v Gwaze in the context of case-stated appeals on questions of law under s 380 of the Crimes Act...” (emphasis added)

[44] The law in New Zealand in my respectful view seems settled law. This view is re-enforced by my earlier discussion of the more recent New Zealand authorities that have followed H v R (supra) and the discussion that follows in terms of the Respondent’s second submission that the New Zealand Court of Appeal incorrectly determined H v R (supra).

[45] I respectfully do not agree that the New Zealand Court of Appeal was incorrect in H v R (supra) when it determined that on appeal to the High Court, the accused Appellant was entitled to the proportionality test being considered afresh. This conclusion is for the following reasons:

(b) H v R (supra) refers to and re-affirms the earlier New Zealand Court of Appeal judgment in R v Hughes (supra) that the determination of the proportionality test is not a matter of discretion but of fact requiring judicial assessment subject to ordinary appellate principles. R v Hughes has been adopted and applied in Samoa;

(c) matters of fact requiring judicial assessment and not a discretion may be appealed on ordinary appellate principles as laid out in Austin, Nichols & Co Inc v Stichting Lodestar (supra).

This approach has been consistently applied on appeal of applications involving refusal of applications for discharge without conviction in New Zealand and appeals applying ordinary appellate principles laid out in Austin, Nichols & Co Inc v Stichting Lodestar (see for example: R v Hughes (supra); H v R (supra); Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620 concluding at paragraph 33: ‘But given that we uphold the Judge’s assessment that this was a serious incident of assault, we do not consider the s 107 test was met’; Weng v New Zealand Police [2014] NZHC 2586; the approach applied in Z v R [2012] NZCA 599, though involving judicial review of a grant of a discharge without conviction; Wanoa v New Zealand Police [2018] NZHC 259; Farhat Buksh v New Zealand Police [2014] NZHC 1670; and Chammaa v New Zealand Police [2015] NZHC 1893); and

(d) The approach in H v R (supra) applied in New Zealand in other appeals involving matters of fact requiring judicial assessment is not inconsistent with the approach in Kerslake v Attorney General (supra).

[46] In terms of my comments at sub-paragraph 45(d), I elaborate further as follows. I do not understand the judgment of His Honour Sapolu CJ in Kerslake v Attorney General to preclude the application of the approach in H v R in Samoa. First, the enunciation of the approach of the Court on appeal in R v Munro [2007] NZCA 102, [2008] 2 NZLR 87 and R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 referred to in Kerslake v Attorney General (supra) was in terms of an appeal brought pursuant to s 385(1)(a) of the Crimes Act 1961 (New Zealand). That section provided that an appellate court had to set aside the verdict of the jury if it was of the opinion that the verdict was “unreasonable or cannot be supported having regard to the evidence.” It was the enunciation of an approach to an appeal of a verdict or judgment following a contested trial on that basis and quite different in nature to this appeal before me. I refer to paragraph 9 of the judgment of His Honour Sapolu CJ which provides the context to which the approach I am being urged to apply was applied by the Honourable Chief Justice.

[47] Second, Sapolu CJ in Kerslake v Attorney General (supra) and Toogood J in Xu v Mayes [2014] NZHC 349 referred to by Sapolu CJ in Kerslake v Attorney General both referred approvingly to Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. The judgment and approach adopted by Sapolu CJ in Kerslake v Attorney General is not in my respectful view inconsistent with the principles laid out in Austin, Nicholas & Co Inc v Stichting Lodestar. On an appeal involving the question of whether the consequences of a conviction would be out of all proportion to the gravity of the offence, that is considered afresh on appeal. In my view, the issue raised by the Respondent involving how the two different approaches are applied is demonstrated well by the judgment of Wylie J in Chammaa v New Zealand Police [2015] NZHC 1893 involving an appeal against findings of guilt (applying the Kerslake v Attorney General approach) and if upheld, an appeal against refusal to grant discharge without conviction (applying the H v R approach).

[48] Third, it is submitted by the Respondent at paragraph 12 of submissions dated 11th September 2018 that His Honour Sapolu CJ stated that those principles cited in Kerslake v Attorney General from Xu v Mayes apply to ‘general appeals’. The learned Chief Justice’s judgment does not so stipulate and I expect this submission may have been made in error.

[49] This is a general appeal on the grant of a discharge without conviction. As it is not limited to a question of law, in my respectful view, the approach to be applied in Samoa to an appeal brought pursuant to section 147 of the CPA following the determination of an application for discharge without conviction is that approach to general appeals adopted in New Zealand where an application for discharge without conviction is denied by the Court at first instance.

[50] As I have earlier said, this is because unlike New Zealand where the Crown is expressly limited on appeal to questions of law, the Attorney General in Samoa is not restricted to questions of law on an acquittal. The Attorney General has, like an accused in New Zealand, a general right of appeal. In R v Malu [2017] NZCA 546, the absence of that general right of appeal was stated as follows by the Court of Appeal:

“Because no error of law has been demonstrated, we are unable to intervene. Our response may have been different if the Crown had a right of general appeal against the decision to grant the discharge.” (emphasis added)

[51] Accordingly, the approach on a section 147(1)(c) appeal in Samoa granting a discharge without conviction involves the proportionality test, this is a “a matter of fact requiring judicial assessment, which can be subject of appeal on normal appellate principles.”

[52] These principles were articulated in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 148 by Her Honour Elias CJ in the unanimous judgment of the Court in the following way:

“[4] Perhaps the most familiar general appeals are those between courts. So, in the present case, the Court of Appeal on general appeal from the High Court under s 66 of the Judicature Act 1908 was entitled to take a different view from the High Court. Similar rights of general appeal are provided by statute in respect of the decisions of a number of tribunals. The appeal is usually conducted on the basis of the record of the court or tribunal appealed from unless, exceptionally, the terms in which the statute providing the right of appeal is expressed indicate that a de novo hearing of the evidence is envisaged. (An example of a right of appeal with that effect was that under the legislation considered by the Court of Appeal in Shotover Gorge Jet Boats Ltd v Jamieson.) In either case, the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.

[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.” (emphasis added)

[53] In considering questions of law, I was referred by both counsel to Brown v R [2015] NZCA 325 which sets out errs in law as follows:

(b) Failing to take into account a relevant consideration or taking into account an irrelevant consideration; and

(c) Making a factual finding that is unsupported by any evidence or failing to draw an inference of fact which is the only one reasonably possible on the evidence – often referred to as ‘plainly wrong’.

[54] In terms of the approach by an appellate Court to an appeal on a finding of fact generally, I am referred again to Kerslake v Attorney General (supra) which states the two conventional grounds as:

[55] Relevant to determining this appeal is section 17 of the Sentencing Act 2016. Section 17 relevantly states:

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by 1 party and disputed by the other:

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case;

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial;

(d) either party may with the leave of the judge cross-examine any witness called by the other party.”

[56] I will deal first with the issue of disputed facts before the District Court which is ground 3 – (g) of the Appellant’s submissions. There was argument before the District Court over the sequence of events surrounding the offending. On the Appellant’s sequence of events in the Summary of Facts, there are no facts on which a submission of provocation could in my view be properly founded.

[57] On the Respondent’s assertion of the sequence of events however, not set out on the Summary of Facts but in the Pre-Sentence Report, the Respondent said he coincidentally came across the victim as he was leaving. He confronted the victim and told him to stop drinking, however, the victim reacted by laughing at him (Pre-Sentence Report, p.3) or as stated in Respondent’s District Court submissions, ‘smiling’ at him (p. 4, Submissions to the District Court dated 4th May 2018). This then led the Respondent to assault the victim. The Respondent in his plea in mitigation and relying on his Pre-Sentence Report submitted that:

“7. ...Fepuleai then went over to Saili and said to him words to the effect, oute lei faiatu foi e au ate inu o lena e te faigaluega. Saili responded by smiling as if to mock Fepuleai. Fepuleai then grabbed one of the bottles on the table in front of him and hit Saili on the head with it...”

[58] Before this Court, it originally seemed that the Appellant contended error on the part of the learned Judge in not calling evidence on the differences in the sequence of events. When this matter was re-called for further submissions on the 11th September, it was clarified by the Appellant that the basis of this part of the appeal is that (a) evidence was conflicting and in dispute as to whether the victim smiled or laughed at the Respondent; (b) that evidence is relevant on the question of provocation; and (c) evidence should have been called. The Appellant’s further submission was whether it was a smile or a laugh, it nevertheless did not amount to provocation.

[59] I will deal with this procedural appeal ground first as it does not involve the proportionality test and then turn to the other grounds of appeal.

[60] This ground of appeal is that the: “Honourable Judge erred in law / fact in:

(i) Considering provocation as a relevant consideration for the discharge application, given the level of undisputed violence involved in the actual assault;

(ii) Having considered that provocation was relevant to the Court, erred in not allowing evidence to be called in relation to the disputed issue of provocation.”

[61] At the sentencing hearing, there was dispute between counsel as to what had occurred In-Chambers and what counsel for the Appellant was said to have agreed to. At the sentencing hearing on the 11th May, counsel for the Appellant submitted to the Judge:

“Your Honour, counsel did not consent or agree that the version provided by the client or the defendant was what we were agreeing on, that is my recollection that I did not – counsel or Prosecution – did not concede that, ...So during that time it was more a consideration for us to see whether it was something where we would need to call evidence because if your Honour places much weight on it given that my learned friend’s submissions highlights that there was provocation, then in my respectful view or in Prosecution’s respectful view, there’s some level of weight being given to provocation and that the defendant is trying to bring up provocation to justify his actions;...I think it comes to the point where if Your Honour sees it relevant in terms of mitigating his sentence, then our respectful view is that the Court should hear the evidence in respect of that small part, that he claims it was provocation...In our respectful view from the beginning it should not even amount to a provocation but given that the Probation report and that the defendant was adamant that the victim laughed at him hence he was angry and struck him with the bottle; in the prosecution’s respectful view that will provide the weight to the Court in how much to give to the provocation aspect so I think it really comes down to then resolving it by calling these specific evidence in relation to it. That’s my position given the differences in the versions that were given and given that the matter of provocation is relevant...” (emphasis added)

[62] In the District Court exchange, counsel for the Appellant expressly raised with the Judge issues with the Respondent’s contention that provocation existed. In the Respondent’s submissions, the victim ‘smiled’ at the Respondent and in his PSR, the victim ‘laughed’ at the Respondent. Counsel for the Appellant raised the discrepancy as to whether the victim ‘smiled’ or ‘laughed’ and that if provocation is considered relevant, then the Court should hear evidence. Whether it was a ‘smile’ or a ‘laugh’, the Appellant’s position was nevertheless that it did not amount to provocation.

[63] It is clear that the question of provocation was relevant at sentencing and prosecution challenged the fact asserted by the Respondent in the Pre-Sentence Report that the victim laughed at him. In her sentencing decision, the Judge expressly however found at paragraph 34 “There was also an element of provocation ... you confronted him but he reacted by laughing...”

[64] In her Sentencing Decision of the 11th May 2018 on this issue, the Judge further stated that:

“Having heard from counsel, I decided to proceed with sentence as I was clear of what was agreed on at the Chambers meeting. In any event the issue of provocation is one of the factual assessments I am required to make on the materials before me if it was present at all. What weight (if any) I allot to it and inferences drawn is solely for me to decide.”

[65] The facts in dispute which relate to the offending were not contained in the agreed Summary of Facts but introduced in the Pre-Sentence Report. Section 17(2) of the SA 2016 lays out a clear procedure to be followed where a relevant fact to the determination of sentence or the disposition of the case is in dispute. The Court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case (section 17(2)(a)). The use of the word “must” in section 17(2)(a) is to be interpreted as imperative (section 8, AIA). After this indication, if a party then wishes to rely on that fact, the parties may adduce evidence as to its existence (section 17(2)(b)).

[66] Once prosecution raised this dispute, the Judge did not give the indication to the parties that she was in my view required by section 17(2)(a) of the Sentencing Act 2016 to give. The Appellant appropriately sought to adduce evidence if the Court was to consider the issue relevant to mitigate sentence. As it was the Respondent that sought to rely on the disputed fact, section 17(2)(b) provided the parties including the Respondent with the avenue to adduce evidence to prove the fact in dispute. That did not occur. Some question was also raised before the District Court concerning the appropriateness of the actions by the Appellant in disputing this fact. There is no doubt in my mind that it was appropriate for the Appellant to raise this question on the 11th May as it was the sentencing date and a relevant fact in dispute. The In-Chambers discussions did not preclude counsel for the Appellant disputing the fact at the sentencing hearing.

[67] When the factual dispute was raised, the Judge did not follow the procedure in section 17(2) of the SA 2016 but proceeded on the basis that “the issue of provocation is one of the factual assessments I am required to make on the materials before me if it was present at all.” It was this factual assessment that the Appellant sought to adduce evidence and one that could only properly in my view be determined on the hearing of evidence pursuant to section 17(2) as it was in dispute. This ground of appeal is allowed.

[68] In reaching this conclusion, I note that counsel must assist the Court to correctly apply the law. Section 17 was not raised in the District Court. Even when it formed part of the appeal before this Court, section 17 was not raised. It is unhelpful to the Court where applicable sections are not raised and it is critical that counsel assist the Court on these matters.

[69] Having reached my view that this Court on appeal considers the proportionality test afresh, I would now ordinarily proceed to consider the proportionality test myself and reach my own conclusion as to whether the consequences of a conviction are out of all proportion to the gravity of the offending. Given however my finding that the Judge erred and that evidence should have been adduced to resolve the question of provocation, I would also fall into the same error if I were to apply the proportionality test without adducing that evidence. The assessment of the proportionality test cannot be properly undertaken because of the disputed fact and the question of provocation. This matter must therefore be remitted to the District Court for re-hearing of sentence.

[70] I will however address certain matters raised by the Appellant’s appeal to assist with the re-hearing in the District Court but because of the conclusions I have reached, I do not need to determine all of the Appellant’s other grounds of appeal as the application will be remitted for rehearing.

[71] This appeal ground is set out in the Appellant’s Third Notice at paragraph 1(f). The Appellant’s submission is that:

(a) The Judge “had incorrectly and inadequately assessed the relevant facts of the circumstances of the offending even though these relevant facts were not disputed...” (paragraph 22, Appellant’s Submissions); and

(b) Due to that incorrect and inadequate assessment of the facts, that led to an ‘inaccurate’ consideration of the relevant factors “relevant to the gravity of the offending.” (paragraph 23, Appellant’s Submissions)

[72] This ground relates to whether the Judge erred in its determination of (a) the Respondent’s ‘intention to cause injury’; and (b) ‘premeditation’ (see paragraphs 25, 27, 30 and 31, Appellant’s written submissions). In terms of premeditation, the Appellant also challenges the Judge’s findings at paragraph 30 that the assault was not premeditated and that:

(b) “I accept what you said Fepuleai to Probation that you were on your way out when you coincidentally came across the victim still drinking thereby sparking your anger.”

[73] Under this ground 1 – (a), there is no finding of the Court on ‘intention’ that I am referred to in the Appellant’s submissions as being an error by the Judge.

[74] The issue more relevantly is whether it was a pre-meditated intentional assault. The specific findings appealed relate to paragraph 30 of the judgment. On the material before the Court, I do not find that the Judge was wrong in her finding that the assault was not a premeditated assault, that is in her own words, “as if to say that you had sought out the victim with the intention to inflict harm.”

[75] Whether the Respondent purposely went to the victim to confront him on his consumption of alcohol or whether he came across the victim coincidentally is not relevant. The relevant question is when did the Respondent form the intention to assault the victim and thus, whether it was a premeditated assault or whether it was spontaneous. I am in agreement with the Judge on this appeal that the assault itself was not premeditated. This conclusion is supported by the later concession by the Appellant that the victim either smiled or laughed at the Respondent and the assault followed that alleged response. The relevant question is whether the victim’s response amounted to provocation.

(2) The Honourable Judge erred in law / fact in not placing sufficient weight / consideration to the victim impact report in the assessment of the gravity of the offending’ and

(3) The Honourable Judge erred in law / fact in the assessment of relevant factors regarding the victim’s injuries;”

[77] The second and third grounds of appeal are set out as ground 1(a) and 1(b) respectively of both the Appellant’s Further Grounds of Appeal and Amended Further Grounds of Appeal.

[78] The Appellant’s submission at paragraph 35 is that the Judge had erred in law / fact in that she had placed inadequate consideration to the victim’s injuries and the general impact of the offending raised in the Victim Impact Report. The Appellant’s submission at paragraph 37 further submits that the Judge’s finding at paragraph 64 of her judgment that “I infer from this the scalp was not affected” was wrong and inconsistent with the reports of the doctor and the nurse.

[79] In terms of the victim’s injuries and the victim impact report, the Appellant first refers to the Judge’s inference drawn at paragraph 64 of the judgment that the scalp was not affected and submits that the Judge was wrong and that the inference is inconsistent with the report of the doctor and the nurse.

[80] This finding by the Judge must be read in its full context in terms of the absence of neurological deficits or complaints’. It is in my view otherwise well recognized in the judgment that the scalp was injured and affected by the assault. The Judge referred to this as follows:

[81] The Appellant further submits that the Judge erred in paragraph 66 of her judgment by her assessment at paragraph 66 that “places on the victim a sort of obligation to have had done something to lessen the injuries sustained, instead of focusing on why and how the injuries were caused in the first place.” I am referred by the Appellant to the judgment of Randerson J in Iosefa v New Zealand Police 2005-409-64 HC CHCH CIV (21 April 2005) at paragraph 29 in support of this submission.

[82] The comments of Randerson J at paragraph 29 have no application here. They relate to submissions by counsel in that matter raising issues about the victim’s past history and that he was a person prone to bullying. Randerson J correctly noted that the victim’s past was irrelevant and that what was relevant in that case was the behavior of both parties on the day. That comment has nothing to do with assessing an injury and how a victim’s actions or inaction may have exacerbated that injury.

[83] I am not therefore in agreement that the Judge erred by placing on the victim ‘a sort of obligation to have done something to lessen the injuries sustained instead of focusing on why and how the injuries were sustained.” That is not what the Judge had done. The Judge was attempting to determine the gravity of the Respondent’s offending in terms of assessing the degree of pain and harm that the victim suffered by virtue of the Respondent’s conduct and that which may be attributable to the victim’s own delay in seeking medical treatment. In this exercise, the Judge was attempting to take into account how the victim’s own delay may have contributed to the pain and harm he felt.

[84] The Appellant’s written submissions (at paragraphs 43, 44, 45 and 46) also submits that the Judge failed to take into account relevant consideration, that is the emotional impact on the victim of the offending as well as on the victim’s family. In this context, the Appellant refers at paragraphs 43 and 44 to the actions of the victim in trying to hide his injuries as showing the high regard he had for the victim as President of the Land and Titles Court and a member of the judiciary and the victim’s own low sense of self-worth or right of the victim to report the victim to the authorities.

[85] Section 6(f) of the SA 2016 requires the Court to take into account in sentencing or otherwise dealing with a defendant any information provided to the Court concerning the effect of the offending on the victim. Unlike New Zealand where a Victim Impact Statement is expressly provided for under section 21 of the Victims Rights Act 2002 (New Zealand), similar legislation does not exist in Samoa. Victim Impact Reports are however routinely ordered by the Courts of Samoa and these reports fall within information provided to the Court concerning the effect of the offending on the victim.

[86] Dealing first with the submission that the Judge failed to take into account the impact of the offending on the victim, the Judge clearly considered the impact of the offending on the victim including the victim hiding the incident. She states at paragraph 28 of her judgment:

“The VIR states that he suffered physical, emotional and psychological harm. He stated he had hidden the incident from his family as he did not want them to know about it also because he felt sorry for you Fepuleai. Although he is hurting from the incident he has forgiven you...”

[87] In dealing with the aggravating features of the offending and of the offender, the Judge then goes on to identify at paragraph 29 as an aggravating feature that:

“I accept that here the victim suffered physical, psychological and emotional injury.”

[88] The Judge expressly considered the impact of the offending on the victim including specifically referring to the victim attempting to hide the incident from his family and one of the reasons for doing so.

[89] The Appellant’s complaint appears to be an alleged failure by the Judge to consider the victim hiding the incident from his family and his high regard for the Respondent as somehow a basis for inferring the victim’s low sense of self-worth or right to report the Respondent ‘as an emotional impact on the victim that the sentencing Judge failed to take into account.’

[90] I do not find such an inference that a consequence of the emotional harm is the victim feeling a low sense of self-worth. The victim certainly does not express this. The victim clearly stated he felt ‘ashamed’ because of the circumstances of the incident but there is no evidence this was ongoing or effected his emotional state in any other material way. He made no mention of any ongoing emotional impact on him in the Pre-Sentence Report, any ongoing self-doubt or self-worth and he has forgiven the Respondent. The Judge was entitled to consider the Victim Impact Report in the way that she did and the weight she gave to this issue in the Victim Impact Report. I am in agreement with the Judge.

[91] In terms of the Judge having failed to take into account the impact of the offending on the victim’s family “as alluded to” in the Victim Impact Report, I am also not persuaded that the Judge erred. First, section 6 of the SA 2016 ‘Principles of Sentencing’ requires the Court to take into account the effect of the offending on the victim. A victim is defined in section 2 of the SA 2016 and for the purposes of this matter, family members are not victims of the Respondent’s offending.

[92] In sentencing or otherwise dealing with an offender, section 7 of the SA 2016 sets out the aggravating factors which a Court must have regard to. These factors also do not include the impact on a victim’s family. If the Judge was to be required to have regard to the impact of offending on a victim’s family, that would have been expressly incorporated into the SA 2016. It is not.

[93] Whilst I accept that sub-section 7(4) of the SA 2016 gives judges the discretion to take into account any other aggravating factor that the Court thinks fit and which may include the impact on family members, there is nothing in this appeal in the circumstances set out in the Victim Impact Report that would suggest that the impact on the family is either relevant to the sentencing process undertaken or aggravating of the offending.

[94] At paragraph 47 of the Appellant’s written submissions, the Appellant states that the Judge erred in that:

“47. The Judge also concluded that there were no medical reports to prove the other hospital visits, however, we respectfully submit that there was no dispute from the respondent regarding this, and so what the victim clarified in the Victim Impact Report should have been taken into account.

48. The sentencing Judge had therefore erred in the assessment of uncontested facts, and resulting in the inadequacy or nil proper weight afforded to the impacts of the offending as outlined in the prosecution’s summary of facts.” (emphasis added)

[95] The Appellant does not identify that part of the judgment to which issue is taken. Presumably, it is paragraph 67 of the judgment where the Judge states:

“The victim also said he saw a private doctor 5 days after his first visit as the pain persisted. However, there is no medical report to substantiate this. I will not place much weight on this part of the VIR and those in 65 above although the Defence did not raise any issues with it...”(emphasis added)

“64. The medical report does not say how deep or wide the wound was as is common with this type of report. But I infer the wound must have been a minor laceration and therefore surface. If it was deep and severe the doctor would have been alarmed and ordered a scalp x-ray due to the likelihood of scalp penetration. But that is not the case here. According to the doctor a scalp x-ray was unnecessary as there were no neurological deficits or complaints and I infer from this the scalp was not affected.

65. This of course is contrary to what the victim said in his VIR that ever since the incident he felt discomfort and dizziness at the area of impact on his head and he would try to treat it by rubbing. He also felt stiffness on his head going towards his neck. Then in the PSR he alleges he suffered permanent head injury. I believe this is overly exaggerated. If any of these were true the Doctor would have definitely ordered a scalp x-ray as it would give a conclusive assessment of any potential or actual internal injury to the nervous system and brain that may result in say for example a haematoma or a haemorrhage. But as I said above the Doctor observed there were no neurological complaints from the victim himself bearing in mind this was 12 days after the injury. If he had suffered such complications, the victim would surely tell the doctor.”

[97] First, the relevant part of paragraph 67 in my view was not primarily concerned with there being no reports to substantiate the hospital visits but the victim’s statement about the harm he suffered.

[98] Second, paragraph 67 must be read in context of the preceding paragraphs and the exercise being undertaken by the Judge. The Judge was assessing the VIR and the victim’s statements about his injuries including the injuries being permanent. She did not in my view err in attempting to determine what weight she should give to that information in the VIR given the medical evidence in the Summary of Facts. They were apparently incongruous and she accordingly approached that part of the VIR with caution given the medical evidence.

[99] Third, as a factual statement, the Judge did not err when she said that the victim said that he saw a private doctor 5 days after his first visit, however there was no medical report to support this. That is factually correct.

[100] The fourth ground of appeal is that ‘[t]he Honourable Judge erred in law / fact in not taking into account / placing sufficient weight to all relevant aggravating features of the offending.’

[101] This ground of appeal is pleaded at paragraphs 1(c) of both the Appellant’s ‘Further grounds of Appeal’ and ‘Amended Further Grounds of Appeal.’

[102] The Appellant’s first submission under this ground is that whilst the Judge had referred to the aggravating factors listed in paragraph 29 of her judgment ‘having made reference to these aggravating factors in one or two paragraphs of the 25 page decision’, there was no further discussion of these factors and how they reflected the gravity of the offending (Appellant’s submissions, paragraph 52).

(i) There was an inadequacy in the Judge’s judgment requiring the proper analysis of the gravity of the offending when determining such an application constituting an error of law; and

(ii) That having found all the aggravating factors noted in paragraph 29 of the judgment, the Judge placed the Respondent’s offending at the low to moderate (or, according to the Appellant, in the Court’s oral decision delivered on the 11th May 2018, ‘minor’) when the offending should have been at the level of moderate to high; and

(iii) The Judge failed to draw or consider the very clear inference that there was evidence of the Respondent ‘exercising authority’

[104] I do not see how the inadequacy alleged is a basis to bring this contention on appeal. It is noteworthy that in New Zealand, section 31 of the Sentencing Act 2002 requires the Court to give reasons for a sentence or for otherwise dealing with an offender. I am not aware of a similar provision in the SA 2016, though it is well recognized that reasons should be given (Attorney General v Sefo [2009] WSCA 7 (9 October 2009)). The point is that whilst the New Zealand Sentencing Act 2002 expressly requires the giving of reasons, it is also recognized that:

“Where a Court has omitted to refer to a particular aggravating or mitigating factor, this is not in itself a ground for appeal: s 31(4). Nonetheless, it possible that the Courts will quickly adopt the routine of simply stating the factors contained in s 9 have been considered and then proceed to an analysis of the factors identified as having particular significance in the individual case to the imposition of sentence.” (Halls Sentencing (NZ) (online looseleaf edn, LexisNexis) at [SA 9.1]. (emphasis added)

[105] In this case, the aggravating factors have been considered and the complaint is on inadequacy. There is no basis for this complaint.

[106] The Appellant does not refer to the section where the ‘exercising of authority’ is recognized as an aggravating factor in offending. I understand however that this limb of the appeal relies on section 7(1)(f) of the SA 2016 which recognizes that the Court must take into account as an aggravating factor, to the extent applicable in the case, that an accused was abusing a position of authority in relation to the victim.

[107] The abuse or assertion of authority by the Respondent over the victim was only briefly referred to in the Appellant’s Sentencing Submissions before the District Court under the heading ‘element of discrimination’. The Appellant’s written submission in the District Court elaborated on this as follows:

“The fact that the defendant assaulted the victim in the vicinity of the Court House, in the presence of staff members and during an office social function, portrays that the defendant by assaulting the victim, as asserting his authority over the victim where he is President in one of the Courts and the victim a security guard.’

[108] The Appellant’s submission in the District Court, as was the case in this Court made no reference to section 7(1)(f) of the SA 2016 to expressly draw the Judge’s attention to the mandatory requirements of section 7(1)(f) and abuse of authority. The result was that the Judge at paragraph 31 erred by considering the Appellant’s submission in terms of section 7(1)(h) (hostility towards a group) instead of 7(1)(f) (abuse of authority).

[109] In New Zealand, abuse of a position of authority as an aggravating factor has been applied quite broadly to include for example Police officers, employers, a Member of Parliament, Judges, teachers, parents and caregivers abusing their authority.

[110] In this case, the Respondent being the President of the Land and Titles Court was at the judiciary Christmas social function. It is recognized at paragraph 13 of the Summary of Facts that prior to the Respondent striking the victim, the Respondent had said to the victim “faiaku foi e aua e ke igu”. In the PSR (referred to by counsel for the Respondent in his submissions before the District Court), it is clarified that the Respondent had also directed a Court Officer “to tell the victim not to drink as he was working and he recalled two other instances of telling the victim the same thing...” (PSR, p. 3) The Respondent later noticed the victim “still drinking from his bottle in sight and was not serious about what he had told him earlier to not drink as he was on duty...”

[111] It is in this context in which the Respondent assaulted the victim. In doing so, the Respondent was in a position of authority in terms of the victim. He had directed a Court officer to tell the victim not to drink alcohol, exercising his authority over the victim in the workplace context. The victim did not, it would seem, comply. The Respondent then later assaulted the victim. The Respondent was in a position of authority over the victim and he abused that authority.

[112] This is a relevant aggravating factor that the Judge did not take into account in accordance with section 7(1)(f) and which she failed to take into consideration in determining the proportionality test and the Judge accordingly erred.

[113] The Appellant contends that in her judgment, the Judge had given thorough and extensive consideration to the mitigating factors (highlighted in paragraphs 33 – 38 and 75 – 79 of the decision) and minimum to nil weight to the aggravating factors. This part of the fourth ground of appeal again concerns an alleged imbalance or inadequacy in the Judge’s reasoning.

[114] With respect, there is no merit in this submission. The Judge had considered in some detail the aggravating factors together with the mitigating factors as clearly set out in her judgment. This consideration led her to conclude that the gravity of the offending was within the low to mid-range. Had she given minimal to no weight to the aggravating factors, the assessment of gravity would have been quite different.

[115] The Appellant’s fifth ground of appeal is that“[t]he Honourable Judge erred in fact / law in finding during her sentencing decision that ‘On this analysis therefore, it is arguable that the injury borders on assault on the high end of the spectrum. At the most serious, actual bodily harm under section 119(2) CA given the injury did interfere with the victim’s health and comfort requiring medical attention” and finding that “the Respondent was reckless”’.

[116] This ground is referred to as 2(f) in the Appellant’s written submissions but is ground 1(d) in the “Further grounds of Appeal” and the “Amended Further grounds of Appeal”.

“So in accordance with the above assessment and guideline in Appleby quoted in Niko on the types of wounds that would attract a prosecution for an ABH charge, which for convenience ‘include ...minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching” it is arguable that none of these are present here. The victim did not lose consciousness or suffer from concussion after he was hit. In fact he retaliated after the first hit by blocking the second blow. Then he walked off. There is nothing before me to say that if he had seen the doctor immediately stitches would have been required. On this analysis therefore, it is arguable that the injury borders on assault on the high end of the spectrum. At the most serious, actual bodily harm under s119(2) CA given the injury did interfere with the victim’s health and comfort requiring medical attention[36]. Whatever way one looks at it, you were reckless Fepuleai.”(emphasis added)

[118] The Appellant’s submissions at paragraph 67 is that the Judge’s findings were wrong in law and fact on the grounds that, in the order as I shall address them:

(a) The Judge erred in finding that the injury bordered on assault is an error of law as the charge of assault does not require an element of ‘injury’;

(b) The Respondent had pleaded guilty to the charge of actual bodily harm with intent pursuant to section 119(1) of the Crimes Act 2013 and was to be sentenced on an intentional assault to cause injury;

(c) The Judge erred in law by finding that the offending ‘at the most serious, actual bodily harm under section 119(2) CA given the injury did interfere with the victim’s health and comfort requiring medical attention’ is also an error of law. Causing injury with intent under section 119(2) is based on reckless intent of the offender and not on the type of injury sustained. The Respondent had pleaded guilty to intentionally causing injury to the victim; and

(e) the injuries sustained ‘may only have been mitigated by the fact that the victim had to put his hand up to cover his head when he saw the second strike.

[119] First, the Judge did not in my view find that the injury ‘bordered on assault’. That interpretation is to misconstrue paragraph 68 which when read in context is an analysis of the gravity of the offending in terms of the injury. The Judge stated that ‘...it is arguable that the injury borders on assault on the high end of the spectrum’, that is, the injury borders at the high end of the spectrum.

[120] Second, I address limbs (b), (c) and (d) together as I have set them out above as they are inter-related. I accept that the Judge has erroneously referred to section 119(2) of the CA and mistakenly brought into her sentencing decision the concept of recklessness. She expressly found the Respondent to have acted recklessly. The application of section 119(2) and findings of recklessness against the Respondent is in error. As this matter is to be remitted for re-hearing of sentence, I do not need to say more.

[122] The seventh and final ground of appeal is that the “Honourable Judge erred in fact and /or in law in finding that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.”

[123] This ground of appeal is set out in the original Notice of Appeal dated 28th May 2018. As this matter is being remitted for re-hearing, I do not need to address all the contentions raised by the Appellant. I do however wish to address some aspects of this ground of appeal.

[124] I am not satisfied that the Judge erred in taking into account public ridicule, stigma and adverse publicity as a mitigating factor. These are factors in my view open to a Judge to take into account in appropriate circumstances where there is evidence supporting such a finding (see: Chadderton v R [2000] NZCA CA464/99).

[125] I also am not satisfied that by referring to other discharge without conviction judgments led to error. In referring to other instances where discharge without conviction were dealt with by the Courts, the Judge considered those judgments in terms of the treatment of difficulties with travel and the inability to practice law. She expressly reminded herself at paragraph 58 of her judgment:

“I remind myself that I must assess the gravity in relation to your particular offending and not how it measures against other comparable cases.”

[126] At paragraph 90, she again reiterated her function in the following terms:

[127] As the Appellant did in the District Court, the Appellant invites this Court to set sentencing bands for the offence of causing injury with intent. Unlike the District Court where the bands sought to be made were based on Taeuki, the Appellant now seeks bands to be based on R v Nuku [2012] NZCA 584.

[128] The principle rationale for the invitation by Prosecution to set guidelines is apparent discontent with the sentences of the District Court with respect to this type of offending.

[129] The Appellant through counsel in her submissions informed this Court that no appeals to sentences imposed by the District Court for causing injury with intent had been determined. Given the apparent discontentment with District Court sentences for this offending, no satisfactory explanation was given as to why, if the Appellant was dissatisfied with District Court sentences, that appeals had not been filed.

[130] In my view, it is premature for guidelines to be made in the absence of any appeals on sentence having earlier been made and not in a case where the appeal relates to the grant of a discharge without conviction.

[131] I decline to issue a guideline judgment for sentencing for causing injury with intent.

[132] The Appeal is allowed. The sentence of discharge without conviction is quashed and the matter remitted to the District Court for re-hearing with the direction that section 17 of the Sentencing Act 2016 is to be applied to any disputed fact between the parties.

[133] I have not directed that the District Court find as an aggravating factor ‘abuse of position of power’ and leave this open to the Judge to reconsider on further submission by counsel as the matter is remitted for re-hearing.

Supreme Court of Samoa

Police v Ropati [2018] WSSC 131 (2 November 2018)