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Police v David [2022] WSADC 1 (26 April 2022)

IN THE ALCOHOL AND DRUGS COURT OF SAMOA
Police v David [2022] WSADC 1 (26 April 2022)

THE ALCOHOL AND DRUGS COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

UAROTA MATAMUA DAVID, male of Salelologa

Defendant

Counsel: S Walter for Prosecution
M Tuimalealiifano for the Defendant

Sentence: 26 April 2022

Application for discharge without conviction in the Alcohol and Drugs Court

Charges.

1. The participant Uarota is charged with grievous bodily harm with maximum penalty 10 years’ imprisonment pursuant to section 118(1) of the Crimes Act 2013; and armed with a dangerous weapon (machete) with a maximum penalty of 12 months’ imprisonment pursuant to section 25 of the Police Offences Ordinance 1961.
2. Both offences were committed whilst under the influence of alcohol. Uarota was referred and was accepted to the programmes monitored by the Alcohol and Drugs Court (“ADC”) having satisfied the criteria of ADC. Uarota was formally accepted in ADC on 07 December 2021 and completed the programme on 08 April 2022.
3. Uarota upon sentencing has (through counsel) filed an application for discharged without conviction. The main reason for his application is that he has been accepted into the RSE programme which one of the requirements is that the applicant must have a clean police record or have no previous convictions.

The Law.

4. The law governing discharge without conviction are sections 69 and 70 of the Sentencing Act 2016. A discharge without conviction will be taken to be an acquittal (s. 69(2)). The Court would only grant a discharge without conviction if satisfied that the direct and indirect consequences of a conviction to the defendant would be out of proportion to the gravity of the offence (s. 70).
5. The approach to assessing discharge without conviction is reaffirmed in Attorney General v Ropati^[1] at [55] as follows:
   • (i) The gravity of the offending.
   • (ii) The direct and indirect consequences of a conviction.
   • (iii) Whether the consequences would be out of all proportion to the gravity of the offence.
   • (iv) The discretion to whether a discharge without conviction should be the outcome.

Gravity of the offending.

6. According to the summary of facts, the defendant was the instigator of the trouble between him and the victim. He punched the victim causing the victim to fall down and then kicked the victim on the mouth. Uarota then ran off when the victim grabbed a rock off the ground. This was not the end of it. Uarota instead of staying home came back with a machete to where the victim was drinking with his friends and struck the victim on the left side of his neck. The victim suffered lacerations on the left side of his neck and cheek.
7. The Court treats as aggravating factors of an offending the use of a weapon, in this case a machete; the part of the body the assault is aimed at, in this case is the head area of the victim; the use of a weapon also shows the degree of violence used. The injuries sustained required hospitalisation for 7 days and ongoing medical care for some time when the victim was discharged home.
8. The gravity of the offending is at the high end of the scale.

Direct and indirect consequences of a conviction.

9. As mentioned before the consequences of a conviction upon Uarota is that he will not be able to take up the opportunity he has been offered on the RSE scheme to New Zealand. This, as advocated by counsel would mean that Uarota will not be able to take care or provide for his family especially at this time of the COVID pandemic.
10. There is nothing before the Court that Uarota was in employment prior to his offending. In fact, his Assessment Report says that he assisted his uncle with his plantation. It cannot therefore be said that his family’s livelihood depends on him. During this time of the pandemic, it is not just his family that is struggling. We all have to do our best to see through this difficult time. Furthermore, Uarota should never have applied to the RSE scheme before he has been sentenced by the Court. The Court has been very clear with its stance regarding travel and in this case future employment. That is, the Court is hesitant (or should be) to usurp the role of a professional body or particular employer or immigration authority to decide the significance of a particular conviction.^[2] Rather than the Court attempting to pre-empt that decision making process by a decision to discharge without conviction.^[3]

Would the consequences be out of all the proportion to the gravity of the offence?

11. The simple answer in the circumstances of this offending would be no.

The Court denies the application for a discharge without conviction.

12. Furthermore, Uarota may be a first offender prior to sentencing but the gravity of his offending would nevertheless result in a conviction.

Sentencing.

13. Uarota pleaded guilty to the offending, he is a first offender and has completed the ADC programmes without any lapses. The sentencing indication was 12 months’ supervision and by that it means a conviction. The victim’s mother appeared and confirmed apology and asked the Court for leniency.
14. For the factors noted above to his benefit Uarota is convicted and sentenced to 6 months’ supervision with the following conditions:
    • (i) To sign in with Probation fortnightly on Fridays before 12 noon;
    • (ii) To report to his CJS – Salelologa or Vailele once a week and to attend church on Sundays; and
    • (iii) Not to reoffend.
      

JUSTICE TUATAGALOA

^[1] Attorney General v Ropati [2019] WSCA 2.
^[2] Steward v New Zealand Police [2015] NZHC 165.
^[3] Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453 (17 March 2011).