Police v Ponifasio [2022] WSSC 2 (9 March 2022)

SUPREME COURT OF SAMOA
Police v Ponifasio [2022] WSSC 2

Case name:	Police v Ponifasio
Citation:	[2022] WSSC 2
Decision date:	09 March 2022
Parties:	POLICE (Prosecution) AND TUIVASA PONIFASIO male of Laulii. (Defendant)
Hearing date(s):	24 February 2022
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	The application to discharge without conviction is dismissed
Representation:	I Tanielu for prosecution L J Brunt for the Defendant
Catchwords:	application to discharge without conviction–endangering transport –maximum penalty –gravity of the offence – proportionality assessment – statutory direction –
Words and phrases:
Legislation cited:	Crimes Act 2013, section 185(1)(b)(2)
Cases cited:	Attorney General v Ropati [2019] WSCA 2 (15 April 2019) at [55]. R v Hughes [2008] NZCA 546; (2009) 3 NZLR 222 at [11].
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TUIVASA PONIFASIO male of Laulii.
Defendant

Counsel:
I Tanielu for prosecution
L J Brunt for the Defendant

Decision: 09 March 2022

^DECISION

1. Mr. Tuivasa Ponifasio the defendant, a 50-year-old male of Laulii pleaded guilty to one count of Endangering Transport pursuant to section 185(1)(b)(2) of the Crimes Act 2013. The maximum penalty is 14 years’ imprisonment. He is a first offender. He seeks an order to be discharged without conviction. His application to be discharged is opposed by the prosecution.

Background

2. On the afternoon of the 5^th May 2020 the defendant stopped his car by the side of the road to talk to his sister in law who at the relevant time was standing by the defendant’s car door when a bus travelling the same direction (towards Apia) overtook the defendant’s car, very close to the defendant’s sister in law. According to the defendant, the bus was speeding and it nearly hit his sister in law.
3. In his state of anger, the defendant chased the bus. The bus did stop to pick up school children at the next village, the defendant’s village. As the bus proceeded towards Apia, the defendant overtook the bus, continued to drive past his village and parked his car in the middle of the road at a spot between his village and the next village. He then stood by the trunk of his car as the bus approached.
4. The bus slowed down and moved over to the side to continue its trip, but as it got closer to the defendant’s car, the defendant opened the car trunk, grabbed the axe and hurled it at the bus striking the windscreen and side mirror shattering both.
5. The bus continued on to Apia and the police was notified.
6. He was charged with four informations dated 26^th June 2020. He entered not guilty pleas to all informations and it was adjourned for hearing on the week commencing 5^th April 2021. Adjournments were sought and granted. On the 15^th December 2021, the date set for the hearing of the four informations, 3 informations were withdrawn and the defendant vacated his not guilty plea to the remaining information, the subject of this application.

The Axe

7. In his affidavit in support of his application to discharge without conviction, the defendant states at paragraph (vi) that what he swung to the front of the bus was not an axe, it was the equipment used to change tyres for his vehicle.
8. The prosecution insist it was an axe.
9. The court in the absence of an application to determine disputed facts, accepts it was an axe for the following reasons:
   1. The information S890/20 charging the defendant and to which he entered a guilty plea states “...the above named defendant of Laulii with intent to cause danger to a Nissan bus registered plate number M/0483 did throw a weapon (axe) to a transport facility...”
   2. In his written application for discharge without conviction dated 15^th February 2022, counsel states at paragraph 2:

“The circumstances of the defendant’s offending is accurately summarised in the summary of facts submitted by the prosecution.”

100. The prosecution summary of facts dated 9^th February 2022 states it was an axe which the defendant threw at the bus.

Submissions by the defendant

10. The defendant’s plea for a discharge without conviction is based largely on the impact of any conviction to his application for permanent residence in New Zealand through his wife who is a New Zealand citizen. The application has been prepared but has not been lodged with the New Zealand High Commission office in Samoa.
11. Attached to his supporting supplementary affidavit is a copy of the application form titled RESIDENCE APPLICATION. Page 13 of the form requires the defendant to state inter alia:
    1. Whether he has been convicted at any time of any offence, including driving offence;
    2. Whether he has been under investigation, wanted for questioning, or facing charges for any offence in any country.
12. He does not dispute the severity and the stupidity of his actions which he deeply regrets and which stands in the path of his chances of moving overseas to be with his wife. A traditional apology has also been done and accepted by the owner of the bus.
13. In relation to the offending the defendant explained his unfortunate conduct was purely a reaction to what could have been a fatal accident affecting his sister in law’s life and was not pre-meditated.

Response by the prosecution in opposition

14. Prosecution submitted that the defendant displayed violence and a degree of premeditation by chasing, overtaking and blocking the road with his car and hurling a dangerous object at a moving bus. Although no one was hurt, extensive and expensive damage was occasioned.
15. It was submitted that it is not sufficient for the defendant to say that a conviction may jeopardise his chances of obtaining a successful application to reside overseas. There must be real risk that the consequences will occur. Mere fear or concerns of the defendant are not sufficient. The application form attached by the defendant does not say a conviction will automatically disqualify the defendant.
16. Since a discharge is deemed or acquittal, the prosecution submitted that a discharged offender can present himself to others as never having committed an offence. Authorities such as prospective employers, licensing bodies and immigration officers may therefore be misled or not fully informed. It is therefore in the public interest for the offending to be disclosed to enable the relevant authorities to assess accurately the suitability of the defendant.

Guidance for discharge without conviction

17. Section 69 of the Sentencing Act 2016 confers jurisdiction on the court to discharge an offender without conviction. Section 70 provides guidance. It provides;

“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.”

18. Section 70 adopted the ipsissima verba of section 107 of the New Zealand Sentencing Act 2002 which follows that the decision of the Superior Courts of New Zealand concerning its section 107 should be treated with utmost respect when discussing our section 70. In R v Hughes^[1] the New Zealand Court of Appeal held that the decision as to whether the test under section 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment.
19. Our Court of Appeal in Attorney General v Ropati^[2] sets out a four step approach to section 70 assessment.
    1. Assess the gravity of the offence, a task which includes having regard to aggravating and mitigating factors;
    2. Identify the direct and indirect consequences of conviction;
    100. Decide whether the consequences would be out of all proportion to the gravity of the offence, and, if so,
    4. Exercise a discretion on to whether a discharge without conviction should be the outcome.
20. Section 70 is the codification of the common law criteria for a discharge without conviction.

Gravity of the offence

21. As stated in paragraph 12 above the defendant does not dispute the severity of his offending. He chased the bus for a distance, at least five miles; there was the driver, his assistant, and probably other passengers when he began to give chase. He saw the bus pick up more passengers. He proceeded to overtake, drove ahead and attempted to block the road and eventually hurled an axe which shattered the windscreen and side mirror.
22. Culpability of the defendant cannot be classified as at the lower and of the scale. He decided to give his anger full vent and completely disregarded the safety of the driver and passengers. A dangerous weapon was used.
23. Offending was obviously distressing and frightening to those on the bus.
24. He had all the time to identify the bus and report it to the police but he decided to take the law into his hands.
25. There are no significant factors which assuage his culpability apart from his unblemished record, apology and reconciliation, and genuine remorse.

Direct and Indirect Consequences of conviction

26. As already noted the only concern of the defendant is that a conviction might jeopardise the success of his application for permanent residence overseas. But as counsel for the prosecution correctly submitted, mere fears or concerns of the defendant should not persuade the court to conceal the offending from the appropriate authorities by declining to enter convictions in appropriate cases. As the court of Appeal pointed out in Attorney General v Ropati.^[3]
    • “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”.
27. Obviously there will be occasions where a conviction could result in adverse immigration and travel restrictions but the court should take that into account only if the case is otherwise finely balanced^[4]. This case cannot be classified as finely balanced.

Proportionality assessment

28. As alluded to earlier the offending involved violence and use of a dangerous weapon. It is not an immediate reaction to provocation or a moment inadvertence. The defendant displayed a completely callous and disturbing disregard for the safety of the bus driver and the passengers.
29. This case as noted in paragraph 27 above cannot be classified as finely balanced so as to persuade the court to pre-empt the statutory role of the immigration authorities. It therefore follows that the court does not consider that the direct and indirect consequences of conviction to be out of all proportion to the gravity of the offence.
30. Having reached this conclusion, it is unnecessary to exercise the statutory discretion.

Result

31. The application to discharge without conviction is dismissed.

JUSTICE VAAI

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^[1]R v Hughes [2008] NZCA 546; (2009) 3 NZLR 222 at [11].
^[2]Attorney General v Ropati [2019] WSCA 2 (15 April 2019) at [55].
^[3] supra at [66].
^[4] supra at [66].