Police v Polu [2020] WSSC 42 (31 July 2020)

IN THE SUPREME COURT OF SAMOA
Police v Polu [2020] WSSC 42

Case name:	Police v Polu
Citation:	[2020] WSSC 42
Decision date:	31 July 2020
Parties:	POLICE v APULU LANESELOTA POLU, male of Saleimoa
Hearing date(s):
File number(s):	S1385/17
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The application for a discharge without conviction is refused. The defendant is convicted and ordered to pay the following sums: a fine of $1,500; noting that a number of SCB and MOR witnesses were required over various days for the trial of this charge a contribution towards prosecution costs of $1,000 and $800 towards court costs; plus Probation Office costs of $200. Total sum of $3,500 payable forthwith i.e. by 4:00 pm today in default six (6) months imprisonment.
Representation:	M S Williams for prosecution K Raftery QC for defendant
Catchwords:	Using a forged document – business license – non-custodial sentence – monetary penalty (fine) – first offender status – consequences of conviction.
Words and phrases:	Knowingly used a falsified form – discharge without conviction application.
Legislation cited:	Crimes Act 2013, s.195(1); Sentencing Act 2016, ss. 69 and 70.
Cases cited:	Attorney General v Ropati [2019] WSCA 2; Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620; Police v Lavea [2017] WSSC 146 ; Police v Lefaoseu [2019] WSSC 62 Police v Schmidt [2020] WSSC 31; Steward v New Zealand Police [2015] NZHC 165; Z v R [2012] NZCA 599; Zhang v Ministry of Economic Development High Court Auckland 17 March 2011;
Summary of decision:

File No:S1385/17

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

APULU LANESELOTA POLU, male of Saleimoa.

Defendant

Counsel: M S Williams for prosecution
K Raftery QC for defendant

Sentence: 31 July 2020

SENTENCING REMARKS

1. After a defended hearing, defendant was found guilty of using a forged document contrary to s.195(1) of the Crimes Act 2013. The maximum penalty by law for this offence is seven (7) years imprisonment.

The offending

2. The circumstances of the offending are canvassed in detail in Police v Schmidt [2020] WSSC 31 in particular at paragraphs 111 to 119. They establish that on 06 November 2013 the Defendant knowingly used a falsified form of the 2013 Business License of his employer company Local Partners and Associates (“LPA”) to open a bank account at the Maluafou Branch of the Samoa Commercial Bank (“SCB”). The account was a savings account and it was opened in the name of “SND PSSF”: “SND” standing for ‘Samoa Nonu Delights’ the trading name of his employer and “PSSF” being the designation for a private sector financial grant from the Government of Samoa required to be processed through the account.
3. The falsification involved was the representation on the License that ‘Samoa Nonu Delights’ was the trading name for LPA when in fact the Ministry of Revenue (“MOR”) as issuer of the License had not approved this to be the case. The License as issued by MOR did not contain the words “Trading as Samoa Nonu Delights” or any reference to a trading name. The space after “Trading as” on the License was left blank. In using the falsified License the defendant committed the offence of using a forged document.
4. At trial the court had drawn the “irresistible inference” that it was the defendant who altered the License. However he was not charged with forgery and I remind myself he is being sentenced only for use of the forged document but well knowing it to be false and that it would be relied upon by the SCB as genuine. As noted in the courts decision he knew from discussions with Bank staff that without such an addition the account could not be opened in the name “SND PSSF”.

Previous cases

5. Previous authorities on similar cases such as Police v Lavea [2017] WSSC 146 and Police v Lefaoseu [2019] WSSC 62 are to be read with this in mind and with due regard to their particular circumstances and the level of criminality involved. I note that in the instant proceeding the Police are not seeking a custodial penalty but are recommending a sentence of probationary supervision. While that may have been suitable for some of the cases cited in the prosecution submission, given the defendants age background clean record and previous good character as well as the circumstances of this matter I do not consider that an appropriate way of dealing with the defendants offending.

Discharge without conviction

6. The first question for determination is whether the defendant should be given a discharge without conviction as sought by his counsel. The applicable law is not in dispute and is to be found in ss 69 and 70 of the Sentencing Act 2016 which relevantly provide:
   • “69. Discharge without conviction-(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
   • (2) A discharge under this section is taken to be an acquittal.
   • 70. Guidance for discharge without conviction - The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”
7. These have been considered by the Courts on various occasions most recently by the Court of Appeal in Attorney General v Ropati [2019] WSCA 2 where it broke down the approach to be taken into four steps:
   • “(i) Assess the gravity of the offence, a task which includes having regard to aggravating and mitigating factors;
   • (ii) Identify the direct and indirect consequences of conviction;
   • (iii) Decide whether the consequences would be out of all proportion to the gravity of the offence and, if so,
   • (iv) Exercise a discretion as to whether a discharge without conviction should be the outcome.”
8. This is a useful guideline because there has in recent years been an upsurge in cases being granted a discharge without conviction especially in the District Court where it seems to have become the norm rather than the exception.

Gravity of offending

9. Defendants counsel submits the defendant is entitled to a discharge without conviction arguing that what the defendant did was to take “an impermissible shortcut......to help advance the nonu business of Local Partners and Associates” i.e. it was done in the interests of expediting company operations in light of the complainants obstructive behaviour. It is said that no deceitful fraudulent or dishonest purpose was being served and in the final analysis the company suffered no financial or other loss as a result. In fact the account was for the sole benefit of the company. In terms of the gravity of the offending defence counsel suggests this is at the lowest end of offending under s.195(1).
10. With due respect I beg to differ. While these may have been the defendants motives the manner in which he pursued them was deceitful fraudulent and dishonest. He knowingly used a false document to facilitate opening of the bank account without disclosing to the relevant SCB officials that the Business License had been materially altered to include the ‘Samoa Nonu Delights’ trading name. I agree with defence counsel it was an impermissible shortcut, “shortcut” here being the operative word. There was no obvious impediment to the defendant following proper procedure and having the MOR sanction the change and issue an amended License. The LPA Board had already by Resolution dated 11 October 2013 approved use of the SND trading name: refer paragraph 129 pp of Laauli ibid.
11. Perhaps he was under time constraints not apparent from the evidence, perhaps the task was in light of the complainants vociferous behaviour too daunting. Whatever the reason what is clear is he exercised a conscious choice and made deliberate and pre-planned use of the forged document. In this regard I accept the prosecution submission that the offending was pre-meditated and aimed at achieving a specific purpose. It is a factor that aggravates the offending.
12. There is also significance in the fact that the defendant chose for his activities a small external branch of the SCB and not its head office on Beach Road. New accounts are normally opened in the main branch of a Bank. Thus a few months later the defendant opened an LPA cheque account in the main branch. The evidence offers no explanation but I do not accept it was random selection. It was deliberate because one can expect a higher degree of checking and scrutiny in the main branch as compared to a sub-branch.
13. I also accept there was a breach of trust and that this is a further aggravating factor. In relation to not only his employer company who are entitled to rely on his honesty vis-a-viz its business dealings with third parties but also from the point of view of the Bank who are entitled to rely on the correctness and integrity of official documents submitted by customers and intending customers. In this case they were duped by the defendant into believing the License represented the officially approved format.
14. The offending in my view is serious and by no means is it at the lower end of this kind of offending. I would classify it as a moderate to moderately severe case of using a forged document.
15. As for mitigating factors relevant to the gravity of the offence as observed above I can find none present. As the primary employee of the company it cannot be said opening the account was not for his “benefit”.
16. The Court of Appeal in Ropati also determined that general mitigating factors in favour of the defendant should be considered under this head as opposed to under the courts general discretion as to the final outcome. This follows the New Zealand Court of Appeal approach in Z v R [2012] NZCA 599 on almost identical statutory provisions where it said in overturning its earlier decision in Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620:
    • “For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).”
17. There is no doubting there are many mitigating factors personal to the defendant and his offending. Such as his acceptance of responsibility and expression of remorse (paragraph 18 of his affidavit of 15 July 2020 filed in support of his application), his unblemished good character as testified to by many, his first offender status, obvious exemplary background as a matai a father husband highly regarded composer journalist and valued member of his village and the community at large.
18. There is also no issue that the events of this matter and the publicity surrounding them have adversely impacted the lives of himself and his family on a professional personal as well as on a business level. These are important mitigating factors but it must be borne in mind that these consequences were not a direct result of the offending in question but were generated as a result of the very public extremely protracted and embittered nature of the ongoing disputes between the defendant his associates and their former business partners. They are not the result of the defendant using a forged document at the SCB Maluafou Branch on 06 November 2013 to open a savings account.

Consequences of conviction

19. This limb of the test requires identifying the direct and indirect consequences of a conviction. The direct consequence emphasised by the defendant is the further damage to his reputation personally and business-wise a conviction for a “forgery charge” would entail and the adverse effect it would have on his ability to travel internationally.
20. In relation to the latter, the Court of Appeal in Ropati in this regard warned in paragraph 65:
    • “It is not the function of the Courts to conceal offending from proper authorities by declining to enter convictions where they would otherwise be appropriate.”

And went on in paragraph 66 to say:

“Similar comments apply to immigration and travel restrictions. Nothing requires the courts to try to impose their perception of what the right immigration consequences ought to be. That is generally best left to the immigration authorities themselves to decide. That said, wed not go so faso far as to say that adverse travel consequences could never be relevant in a finely balanced case.”

21. This accords with the New Zealand approach: see for example Zhang v Ministry of Economic Development High Court Auckland 17 March 2011 and Steward v New Zealand Police [2015] NZHC 165. In Zhang the court said:
    • “In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: R v Foox, Liang v Police and Steventon v Police. There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities.”
22. The added difficulty with the defendants argument is there has been nothing placed before the court establishing that the defendants ability to travel internationally or obtain entry to any country would be compromised or affected by a conviction other than that he would normally be required to disclose the existence of a criminal conviction. These are decisions made by States and their immigration authorities on a case-by-case basis and the outcome cannot be pre-judged. The court cannot and ought not speculate.
23. Similar comments apply to the defendants assertion in his affidavit that a conviction would detrimentally affect future employment opportunities and membership in various professional bodies and associations. No evidence has been tendered to support such suggestions and absent this the court cannot say with any degree of certainty there is substance in the argument.
24. As for damage to reputation here again context is critical. It is acknowledged the defendants reputation has been tainted by the negative publicity etc. surrounding the larger events. But a conviction here would relate only to using a forged document which is separate and distinct from the wider more substantial and more serious offending in respect of which the defendant was acquitted. If anything that isthe public perception of the matter.
25. Regrettably it must also be noted that a sad reality of todays Samoa is criminal convictions do not seem to carry the stigma they once did. The bar appears to have been lowered for there have been holders of high public office permitted by our elected representatives to hold such office irrespective of the existence of criminal convictions for far more serious offending than using a forged document. These are now matters of public record.

Proportionality test

26. This requires that the court assess whether the consequences of a conviction would be “out of all proportion” to the gravity of the offence. I have expressed the view that this is moderate to moderately severe offending highlighting the deliberate and pre-meditated aspects of what the defendant did as well as the breaches of trust involved. Based on what is before the court the consequences to the defendant of a conviction when placed in proper context are in my respectful view not such that they would be in the clear terms of the statute “out of all proportion to the gravity of the offence” (emphasis is mine). As noted in Zhang ibid:
    • “The section refers to the consequences being out of “all” proportion to the gravity of the offence. The addition of the word “all” before proportion emphasises that in the proportionality exercise the direct and indirect consequences of a conviction must clearly outweigh the gravity of the offending” (again emphasis is mine).
27. The many mitigating factors in the defendants favour does not sway the pendulum his way. The application for a discharge without conviction does not in my assessment meet the requisite criteria.

Conclusions

28. As indicated above a term of probationary supervision or other rehabilitatory type sentence would serve no purpose. The defendants sentence in accordance with the principles enshrined in the Sentencing Act 2016 must inter alia hold the defendant accountable for his actions and the harm he has caused, must denounce his conduct in the clearest of terms as unacceptable to the community and be designed to deter him and others from engaging in this kind of behaviour. It must also reflect the gravity of the offence and the offending, this kind of offence being one that often comes before the courts.
29. The relevant aggravating and mitigating factors have already been canvassed and it is now a question of what would be an appropriate sentence. I am conscious the offending occurred some seven (7) years ago but the defendants acknowledgement of responsibility for his wrongdoing has only now come about following a defended hearing. The impact of a penalty upon him and the community in my respectful opinion is not lost by virtue of the delay in adjudication.
30. A penalty of imprisonment is not in the circumstances warranted but in my view a significant penalty is required to deliver the necessary messages while still doing justice to the circumstances of the case.

Decision

31. The application for a discharge without conviction is refused.
32. The defendant is convicted and ordered to pay the following sums: a fine of $1,500; noting that a number of SCB and MOR witnesses were required over various days for the trial of this charge a contribution towards prosecution costs of $1,000 and $800 towards court costs; plus Probation Office costs of $200. Total sum of $3,500 payable forthwith i.e. by 4:00 pm today in default six (6) months imprisonment.
    

JUSTICE NELSON