Attorney General v Stanley [2022] WSSC 34 (25 August 2022)

IN THE SUPREME COURT OF SAMOA
AG v Stanley & Anor [2022] WSSC 34 (25 August 2022)

Case name:	AG v Stanley & Anor
Citation:	[2022] WSSC 34
Decision date:	25 August 2022
Parties:	ATTORNEY GENERAL’S OFFICE (Appellant) v KHAMTAHN STANLEY (First Respondent) and LOMALASI LAUFILI (Second Respondent)
Hearing date(s):	01st August 2022
File number(s):	CA 01/22
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Lesātele Rapi Vaai
On appeal from:	District Court of Samoa, Mulinuu
Order:	The appeal is allowed and convictions entered against each respondent.
Representation:	L. Taimalelagi-Strickland for the Appellant L. Sio for the First Respondent S. Chan Chui for the Second Respondent
Catchwords:	Discharge without conviction – intent to cause actual bodily harm – causes actual bodily harm – provocation – accused a Police Officer – other accused a businessman – gravity of offending – early guilty pleas – genuine remorse – apology – reconciliation – contribution to funeral expenses – fine imposed by village – first offenders – appeal allowed – convictions entered.
Words and phrases:
Legislation cited:	Police Service Act 2009, ss. 50; 51; Sentencing Act 2016, ss. 69; 70.
Cases cited:	Attorney General v Ropati (2019) WSCA 2 (15/4/2019); Liang v Police HC Wellington AP38/02, 16 April 2003; Police v O’Brien & Ors (2015) WSSC 257; Police v Paleaae (2015) WSSC 203; P v Stanley & Laufili (2021) District Court of Samoa, 17/12/21; R v Foox [1999] NZCA 281; [2000] 1 NZLR 641 (CA); R v Hemard HC Christchurch T30/03, 11 April 2003; R v Hughes [2008] NZCA 546; (2009) 3 NZLR 222; Roberts v Police [1989] NZHC 488; (1989) 5 CRNZ 34 (HC); Steventon v Police HC Auckland A108/01, 2 November 2001; Zhang v Ministry of Economic Development (2011) NZHC 22.
Summary of decision:

CA 01/22

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

ATTORNEY GENERAL’S OFFICE

Appellant

A N D:

KHAMTAHN STANLEY

First Respondent

A N D:

LOMALASI LAUFILI

Second Respondent

Counsel: L. Taimalelagi-Strickland for the Appellant
L. Sio for the First Respondent
S. Chan Chui for the Second Respondent

Hearing: 01^st August 2022
Decision: 25^th August 2022

JUDGMENT OF THE COURT

Introduction

1. The two respondents pleaded guilty in the District Court to a charge of with intent to cause actual bodily harm causes actual bodily harm. The first respondent sought a discharge without conviction pursuant to section 69 of the Sentencing Act 2016 and was successful. The second respondent was also discharged without conviction as a result although he did not seek a discharge.
2. The Attorney General now appeals against that order of discharge. The amended notice of appeal contends:
   • (a) The sentencing decision to grant a discharge without conviction and to pay costs was manifestly inadequate having regard to all the surrounding circumstances of the offending;
   • (b) The Honourable Judge erred in law/fact in the overall assessment of all the relevant facts/circumstances surrounding the offending;
   • (c) The Honourable Judge erred in law/fact in giving insufficient weight to the relevant aggravating features of the offending;
   • (d) 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.

The offending

3. In the early hours (approximately 5.15 am) of Saturday 23^rd November 2019, the first respondent was awoken by the screams of his wife, sleeping next to him. The male intruder who touched the wife’s leg causing her to scream, fled from the room and was chased by the first respondent but was unsuccessful and he returned to his wife who was in a state of distraught. She was subjected to sexual assault when she was about six years through a similar home invasion.
4. Subsequently the intruder was identified when the first respondent’s father viewed the home surveillance footage inside the house. It was the same person the first respondent questioned earlier at the main road in front of the house when the first respondent first gave chase. The first respondent then returned to the main road and apprehended the intruder who was visibly intoxicated and led him to the porch of the house where he was questioned. Despite the denials the first respondent slapped the intruder in the face.
5. The first respondent’s father then called the first respondent to bring the intruder inside to view the surveillance footage. When the intruder admitted it was him in the footage, the first respondent slapped, kicked and punched the intruder. The intruder dropped to the floor.
6. The second respondent who lives next door then walked in after hearing the commotion from his house. He was told in response to his query what the intruder did. The second respondent told off the intruder and joined in the assault by punching while the intruder was still on the floor. He then grabbed a plank of wood and stuck the intruder’s legs.
7. After about five to ten minutes inside the house the intruder was dragged back to the porch where the first respondent continued to slap and punch the face, kicked the back and hip area of the intruder who was still on the floor shielding his face. When the intruder reached out his hand the first respondent slapped it away and continued with the kicking and punching.
8. The assault stopped when the police arrived. It is common ground that the intruder was at the mercy of the first respondent for about twenty seven (27) minutes before the police arrived, but the beating was not sustained throughout the 27 minutes.
9. The police summary of facts was not disputed.

District Court Decision

10. The respondents were originally charged with manslaughter in the Supreme Court but eventually when that serious charge was withdrawn they pleaded guilty to a lesser charge in the District Court, to causing bodily harm with intent to cause bodily harm.
11. There was an issue in the District Court whether the intruder provoked the assault. The Judge considered that, “There was insufficient detail related to provocation for the Court to make a determination for it is not enough simply to claim to have been caused by the actions of the intruder or another.”^[1] A disputed facts hearing was held.
12. In assessing the gravity of the offending of the first respondent the Judge was of the view that it was moderate to high but short of grievous. He then considered the effect of the provocation at paragraph [20]. He concluded the first respondent’s reaction was reasonable.
    • “An intruder had violated the sanctity of his home in the early hours of the morning before light and molested his wife who was sleeping naked next to him. Such an affront to his wife was an attack on the First Defendant in his own home. He swore in his oral testimony to protect her and his family from such an ordeal given a similar traumatic incident when she was 6 years’ old and would have had a good reason to feel a sense of failure and inadequacy to not being able to prevent what happened... This is the distinguishing factor in this case when contrasted with AG v Ropati and Police v Ieti Paleaae.”
13. He was satisfied that there was serious provocation which was an operative cause of the violence inflicted by the first respondent and which remained an operative cause throughout the commission of the offence.^[2]
14. The Judge then turned to the consequences of conviction. He noted from the testimonials that a conviction will most likely end the first respondent’s career as a police officer and police prosecutor; which in turn will impact his ability to provide for his family due to financial hardship.
15. The Judge then concluded that the risk of the first respondent’s employment prospects was out of all proportion to the gravity of his offending which has been significantly reduced by the provocation.
16. As for the second respondent he said:
    • “...he participated in the assault as he felt sympathy towards the first respondent and his family who are his close neighbours. The second respondent was also annoyed as to the embarrassment and his disrepute that young people like the victim were bringing to the village because of such conduct.”
17. On the issue of proportionality the Judge considered that a conviction against the second respondent would mean a black mark on what was a respectable and hardworking businessman who is remorseful and has regretted the mistake.

Jurisdiction to discharge without conviction

18. Section 69 of the Sentencing Act 2016 confers jurisdiction on a Court to discharge an offender without conviction. Section 70 provides guidance. 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.
19. The Court of Appeal in Attorney General v Ropati^[3] discussed the correct approach to sections 69 and 70. A four step approach is provided:
    • (a) Assess the gravity of the offence, a task which includes consideration of all the aggravating and mitigating factors relating to the offending and the offender;
    • (b) Identify the direct and indirect consequences of conviction for the offender;
    • (c) Consider whether those consequences are out of all proportion to the gravity of the offence;
    • (d) If the Court determined they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.
20. The Court’s discretion to discharge without conviction under section 69 exists only if the Court is satisfied that the section 70 threshold has been met.^[4] Section 70 provides a gateway through which any discharge without conviction must pass.
21. The threshold test in section 70 is not a matter of discretion, but rather a matter of fact requiring judicial assessment. This Court will assess the disproportionality afresh. There is no requirement that the decision of the District Court was vitiated by error or fact or law, the taking into account of irrelevant considerations or by being plainly wrong.^[5]

Appellant’s Submissions

22. Grounds 1, 2, and 3 of the Amended Notice of Appeal contend that the Judge underestimated the gravity of the offending. Ms. Taimalelagi-Strickland for the Appellant cited three authorities^[6] in which similar offending resulted in convictions and terms of imprisonment imposed in two of them.
23. She also contended the Judge did not give adequate weight to the fact that there were three distinct acts of violence by the first respondent within a period of 27 minutes; there was use of a weapon by the second respondent and numerous injuries were suffered by the intruder.
24. In Police v Paleaae^[7] and Police v O’Brien & Ors^[8] terms of imprisonment were imposed for similar offending. In Attorney General v Ropati^[9] a very substantial fine was imposed.
25. As a consequence of conviction the Appellant accepts that the first respondent’s employment could be terminated. But when the asserted consequences are balanced against the gravity of the offending, the direct and indirect consequences cannot be deemed to be out of all proportion to the gravity of the offence.
26. In respect of the Second Defendant, counsel submitted that no specific consequences personal to the Second Defendant were identified to the Court. “The Judge presumed the consequences of conviction for him in the absence of an application for discharge and supporting material.”^[10]

Submissions by the First Respondent

27. Ms. Sio-Ofoia for the first respondent submitted that the Judge was correct to conclude that the consequences of a conviction would be out of all proportion to the gravity of the offence. She sought to distinguish the three cases cited by the Appellant on the basis that the violence and injuries suffered by the victims in those cases were more serious and severe, and neither was the issue of provocation considered a prominent factor. It was also contended that the element of pre-determination present in those cases is absent in the present case.
28. She also emphasised that the first respondent did not resort to the use of a weapon, neither did the violence escalate, as submitted by the Appellant, when the second respondent arrived.
29. Counsel contended that the Judge correctly ruled in favour of the provocation which in turn determined that the assault by the first respondent was not pre-meditated or pre-calculated. In particular she submitted that the Judge was entitled to be satisfied that the first respondent’s reaction to the provocation was a response or a reaction by a reasonable Samoan under similar circumstances.

Submissions by the Second Respondent

30. Mr. Chan Chui also submitted that the Judge was correct. All aggravating and mitigating factors were considered.
31. With regard to the use of the timber he submitted:
    • “Though the timber was used there was no evidence to suggest or to make an assertion that the second respondent used it with an intent to cause harm other than the purpose of disciplining the victim.”
32. Counsel conceded that the second respondent did not file an application for discharge without conviction, but did submit that in the circumstances of the joint charge it would be illogical and inconsistent to discharge one but not the other, and in any event there were sufficient information in the written testimonials and mitigation pleas for the Judge to make the discharge order.

Gravity of the offence

33. In determining this appeal it is necessary to follow the four step approach set out in Attorney General v Ropati. Firstly, the gravity of the offending must be considered.
34. The Judge characterised the offending by both respondents as moderate to high but short of grievous. He accepted that for 27 minutes the intruder was at the mercy of the first respondent but the assault during the 27 minutes was not continuous. He then described the violence displayed as “a type of scolding or disciplining still not sufficient to cause the number and nature of the injuries.”
35. I agree with the Appellant that the Judge understated the gravity of the offending. There were three distinct acts of violence by the first respondent explained in the summary of facts which the two respondents accepted. The first was at the porch when the intruder was apprehended. He was slapped in the face by the first respondent. The second incident was inside the house where the intruder, after admitting he was the culprit, was slapped, kicked and punched. He was on the floor during the assault when the second respondent joined in the assault before striking the intruder with the plank of wood. The third was back at the porch where the first respondent dragged the intruder and continued with the assault until the police arrived.
36. Five injuries to the torso area and fourteen (14) injuries of the extremities described in the police summary of facts suggest the number of times the intruder was assaulted. They were deliberate acts of kicking, punching and striking on a vulnerable intruder who was lying helpless on the ground. He was humiliated in the presence of those present. He was in pain. The assault was obviously distressing and frightening.
37. Provocation was a significant factor which persuaded the Judge to justify a significant reduction in the gravity of the offending of the first respondent. He ruled that the provocation, “Was an operative cause of the violence inflicted by the first respondent, and which remained an operative cause throughout the commission of the offence.”
38. Perhaps the first assault at the porch and the second inside the house when the intruder made the admission would have justified the reasonableness of the first respondent’s reaction. Dragging the intruder back to the porch to resume the assault was consistent with a sense of outrage and revenge that the intruder invaded the privacy of his home and molested his wife. The retaliation by the first respondent lasting twenty seven (27) minutes could not be classified as proportionate to the provocation. It could not be described as a spur of the moment display of anger prompted by provocation.
39. There are a number of mitigating factors:
    • (a) Guilty pleas at the first reasonable opportunity;
    • (b) Genuine remorse;
    • (c) Apology to, reconciliation and contribution to funeral expenses of the intruder;
    • (d) Fine imposed by the village;
    • (e) Shame by virtue of their standing within the village and community;
    • (f) Good characters; and
    • (g) Unblemished records.
40. Although not grievous the offending by the respondents was nonetheless serious.

Consequences of conviction

41. The Court should be hesitant to usurp the role of statutory organisation, professional body or a particular employer to decide the significance of a particular conviction. In this context it is helpful to note the observations of Asher J in Zhang v Ministry of Economic Development.^[11]
    • “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,^[12] Liang v Police^[13] and Steventon v Police.^[14] 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. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard.^[15] The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.”
42. The first respondent expressed concerns the consequences of a conviction will most likely include the termination of his career as a police officer. But as observed by Asher J in paragraph [41] above and in Attorney General v Ropati, the Court should take care not to usurp the function of bodies whose responsibility is to determine eligibility for employment and immigration by routinely providing discharges in cases of this kind.
43. If convicted the first respondent pursuant to sections 50 and 51 of the Police Service Act 2009 will be subject to a Police Tribunal Inquiry. In that regard the observations of Wylie J in Roberts v Police^[16] are very relevant:
    • “I can well accept that if a conviction is going to result in an absolute bar to the offender gaining entry to some profession or career then it may well be appropriate to ameliorate that consequence in an appropriate case by declining to enter a conviction. Where, however, Parliament has seen fit to establish statutory authority with the task of selecting or screening applicants for admission to whatever trade or profession may be involved then clearly Parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of the kind of qualities that are appropriate for the particular trade or profession and those which render admission to that trade or profession inappropriate. It seems to me, and in this respect I think I echo what Holland J has said, that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.”
44. As for the second respondent, a conviction would place a black mark on a hardworking, respectable village leader and businessman.

Proportionality Assessment

45. The offending by the respondents was serious. It carries a lengthy maximum term of imprisonment. The offending by the first respondent lasted twenty seven minutes. There was deliberate punching and kicking even when the victim was lying helpless on the floor. Assault was obviously distressing and frightening. Initially the assault could be classified as a momentary action due to provoked anger. But eventually became a conscious choice for the rest of the twenty seven minutes. Injuries suffered were numerous, they were not negligible. It is easy to envision a more serious assault but the fact remains there were a series of punches and kicks to a defenceless victim. Bodily harm was intended.
46. The second respondent arrived when the victim was already on the floor during the second assault. A victim, an intruder, already injured and lying defenceless on the floor, did not warrant disciplining, or more beating under the guise of discipline. After punching the victim, the second respondent struck the victim on the legs twice (according to his written plea of mitigation) with a piece of wood. Bodily harm was intended.
47. In normal circumstances the offending by the respondents would warrant a starting point of imprisonment.
48. While accepting that the first respondent will face difficulties if dismissed from the police service, it is also to be accepted that these are the kinds of difficulties that naturally flow from the convictions for the offence in question.
49. When the consequences are balanced against the gravity of the offending, I do not consider the direct and indirect consequences of conviction to be out of all proportion to the gravity of the offence.

Discretion

50. It is not necessary to exercise the statutory discretion that would otherwise follow due to my conclusion on disproportionality. The section 70 threshold has not been met.
51. The appeal must be allowed.

Result

52. The appeal is allowed and convictions entered against each respondent.
53. Both respondents will be sentenced on 26^th September 2022 at 12.30pm. Bail to continue.
54. Counsel who wish to file supplementary sentencing submissions must do so by 19^th September 2022.
    

JUSTICE VAAI

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^[1] P v Stanley & Laufili (2021) District Court of Samoa, 17/12/21 at [4].
^[2] ibid., at [10].
^[3] Attorney General v Ropati (2019) WSCA 2 (15/4/2019).
^[4] Attorney General v Ropati (2019) WSCA 2 (15/4/2019); R v Hughes (2009) 3 NZLR 222.
^[5] Attorney General v Ropati (2019) WSCA 2 (15/4/2019) at [29].
^[6] Police v Paleaae (2015) WSSC 203; Police v O’Brien & Ors (2015) WSSC 257; Attorney General v Ropati (2019) WSCA 2.
^[7] Police v Paleaae (2015) WSSC 203.
^[8] Police v O’Brien & Ors (2015) WSSC 257
^[9] Attorney General v Ropati (2019) WSCA 2.
^[10] Paragraph 4.29 of Appellant’s submissions.
^[11] Zhang v Ministry of Economic Development (2011) NZHC 225 (17/03/11) at [14].
^[12] R v Foox [1999] NZCA 281; [2000] 1 NZLR 641 (CA) at [39].
^[13] Liang v Police HC Wellington AP38/02, 16 April 2003 at [20].
^[14] Steventon v Police HC Auckland A108/01, 2 November 2001 at [22].
^[15] R v Hemard HC Christchurch T30/03, 11 April 2003 at [16].
^[16] Roberts v Police [1989] NZHC 488; (1989) 5 CRNZ 34 (HC) at [28].