IN THE COURT OF APPEAL OF SAMOA
Attorney General v Ropati [2019] WSCA 2

Case name: 	Attorney General v Ropati 	
		
Citation: 	[2019] WSCA 2	
		
Decision date: 	15 April 2019	
		
Parties: 	ATTORNEY GENERAL (Appellant) and FEPULEAI ATILLA ROPATI, male of Vaitele-uta, Iva and Saleaula (Respondent)	
		
Hearing date(s): 	8 April 2019	
		
File number(s): 	CA27/18	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Harrison
Honourable Justice Nelson
Honourable Justice Tuatagaloa	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The Attorney General’s appeal is allowed. The respondent’s cross-appeal is dismissed.
The respondent is convicted of causing actual bodily harm with intent to cause actual bodily harm. He is sentenced to a fine of $5,000 and ordered to pay the complainant reparation of $2,000.	
		
Representation: 	Rexona Titi for Appellant
Ming C. Leung-Wai for Respondent	
		
Catchwords: 	discharge without conviction – intentionally causing actual bodily harm – President Land and Titles Court – prominent public figure – head injury – restitution to victim – provocation – acquittal – conviction entered – monetary fine	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 ss. 119(1).
Criminal Procedure Act 2016 ss. 147; 147(1)(b); 147(1)(c); 148; 154; 154(1)(b); 154(2)(b); 154(2)(c); 177; 177(1); 177(3); 177(4); 178.
Sentencing Act 2016 ss. 10; 10(2);11; 17; 17(2); 69; 70.	
		
Cases cited:	Chang v Attorney General [2018] WSCA 3;
Drake v R [2019] NZCA 56 [4]; 
H v R [2012] NZCA 198;
Maraj v Police [2016] NZCA 279;
R v Foox [2000] 1 NZLR 641 (CA);
R v Hemard HC Christchurch T30/03, 11 April 2003;
R v Hughes [2009] 3 NZLR 222; 
R v Rollo CA 1/04, 8 October 2004; 
Solicitor-General v Mohib [2016] NZHC 1908;
Zhang v Ministry of Economic Development NZHC Asher J 17 March 2011.	
		
Summary of decision:		

CA 27/18

IN THE COURT OF APPEAL OF SAMOA 
HELD AT MULINU’U

BETWEEN:

THE ATTORNEY GENERAL
Appellant

AND:

FEPULEAI ATILLA ROPATI male of Vaitele-uta, Iva and Saleaula
Respondent

Court:		Honourable Justice Fisher
		Honourable Justice Panckhurst
		Honourable Justice Harrison
		Honourable Justice Nelson
		Honourable Justice Tuatagaloa

Hearing: 	8 April 2019

Counsel:	Rexona Titi for Appellant
		Ming C. Leung Wai for Respondent

Judgment: 	15 April 2019

JUDGMENT OF THE COURT

Table of Contents

Introduction
Factual background
District Court proceedings
Supreme Court Proceedings
The Appeal to this Court
Respondent’s Appeal: standard of review
Attorney’s ground 1: wrong appeal path in treating the discharge as a sentence
Attorney’s ground 2: disputed facts hearing unnecessary
Attorney’s ground 3: Supreme Court ought to have entered a conviction
(i): Gravity of the offence
(ii): Consequences of conviction
(iii): Disproportion between gravity and consequences
(iv): Overriding discretion
Conclusion as to discharge without conviction
Appropriate sentence
Result

Introduction
1. 	This case raises significant questions concerning appeals from discharges without conviction. 
2. 	In the District Court the respondent had pleaded guilty to a charge of intentionally causing actual bodily harm. He was discharged without conviction subject to conditions. On a prosecution appeal the Supreme Court quashed the discharge and remitted the case back to the District Court for further hearing. 
3. 	The Attorney appeals to this Court against the Supreme Court’s referral back to the District Court. The Attorney contends that the Supreme Court ought to have entered a conviction on the charge to which the respondent had pleaded guilty. The Attorney also asks this Court to make a ruling as to the legal basis on which he can appeal against discharges without conviction in general. 
4. 	The respondent cross-appeals, contending that the prosecution’s original appeal to the Supreme Court ought to have been dismissed. He says that the original discharge without conviction should stand. 
Factual background
5. 	With one qualification, to which we will come, there is no dispute over the facts. 
6. 	The respondent was the President of the Land and Titles Court (LTC) of 
Samoa. The LTC and its Appeal Division are included among the courts housed in the court complex at Mulinuu. 
7. 	The complainant was employed by the Ministry of Justice as a security guard in the same court complex.
8. 	On the night of 15 December 2017, the Judges of all the various courts held their annual Christmas function in the Mulinuu Court building. The respondent was one of the Judges present. Alcohol and music were provided. Ministry of Justice staff were also present, primarily in a support capacity. 
9. 	The complainant was patrolling the building and compound in his role as security guard. When he reached the room where the party was under way, he stayed there and joined in the drinking. The respondent noticed this. He sent a court staff member to tell the complainant not to drink because he was still on duty. 
10. 	By about 9:00 p.m. most of the Judges had left and the party was coming to an end. The only Judges left were the respondent and another LTC Judge. They were outside. In the party room itself were some court staff. Some were finishing up their drinks. Some were cleaning up. Some were dancing. The complainant was sitting at a table drinking and laughing at the dancers. 
11. 	The respondent and the other LTC Judge walked back into the room. On seeing the complainant drinking the respondent walked over to him. The respondent picked up a half empty bottle from the table. He used it to strike the complainant on the top of his head. The bottle shattered into pieces. The complainant was taken by surprise. He looked at the respondent.
12. 	The respondent then said to the victim, “I told you not to drink”.  He picked up another half empty bottle and aimed a second strike at the complainant’s head. The complainant put up his hand to ward off the blow. The bottle hit the complainant’s hand and broke into pieces.
13. 	The complainant stood up to leave. The respondent threw a punch at him. The complainant managed to dodge the punch. He quickly left.
14. 	The complainant suffered a head injury. He did his best to hide this from his family. However, he was still suffering from symptoms 12 days later. He felt so unwell at work that he had to call his wife. She took him to hospital. At the hospital he was seen by a doctor. By this stage it was too late to use sutures. The doctor’s report noted:
	On examination, the scalp has old cuts evident with pus suggestive of old wounds greater than 24 hours. There were no other visible injuries sighted and a scalp x-ray was not done as there are no neurological deficit or complaints.
15. 	The doctor referred the complainant to a nurse for dressings and other treatment. The nurse noted that in the course of cleaning the wound she found glass fragments in his scalp and in the gauze used to clean it.
16. 	Eighteen days after the incident the complainant was still feeling unwell. This time his wife took him to a private doctor.  The doctor prescribed more medicine to help with the pain and the healing of the injuries.
District Court proceedings
17. 	The incident occurred on 15 December 2017. The respondent was charged on 5 February 2018. The case was first called in the District Court on 13 March 2018. Procedural hearings followed in both the District and Supreme Courts. Eventually after a more serious charge was withdrawn the respondent pleaded guilty to causing bodily harm with intent to cause bodily harm. The guilty plea was entered in the Supreme Court on 25 April 2018. It was then returned to the District Court for sentence. 
18. 	The charge to which the respondent pleaded guilty was laid under s 119(1) of the Crimes Act 2013 which provides:
	119. Causing injury – (1) A person is liable to imprisonment for a term not exceeding 7 years who, with intent to cause actual bodily harm causes actual bodily harm to another person.
19. 	On that charge the respondent came before Judge Alalatoa Papalii for sentence on 1 May 2018. After two procedural hearings the sentencing took place on 11 May 2018. There was only one significant factual issue between the parties. The issue was whether the complainant had laughed at the respondent before the respondent landed the first blow. The Judge considered that it was for her to decide that issue based on the materials she had before her. She decided the issue in the respondent’s favour, proceeding on the basis that the complainant had laughed at the respondent and that this amounted to “provocation albeit of a low degree”. 
20. 	The Judge similarly gave the respondent the benefit of the doubt over the extent and permanence of the injuries. In the victim impact and pre-sentence reports the complainant had reported discomfort and dizziness at the area of impact, stiffness on his head going towards his neck, and permanent head injury. For reasons she expressed, the Judge concluded that the complainant’s version of his injuries was “overly exaggerated”.  
21. 	The Judge traversed the aggravating and mitigating factors and then moved on to the possibility of a discharge without conviction. She found that the consequences of a conviction would be out of all proportion to the gravity of the offence and that the discretion ought to be exercised in the respondent’s favour. She discharged the respondent subject to the following conditions: 
(a) 	$1000 restitution to the victim to assist with his healing process;
(b) 	$300 Court costs;
(c) 	$100 Prosecution costs;
(d) 	Probation costs of $100 to assist with ADC programs. 
(e) 	Upon payment of such costs by Monday 14 May 2018, the Respondent to be discharged without conviction;
(f) 	Respondent ordered to attend four (4) one on one sessions to address his alcohol and anger problem. These sessions to be conducted by Luamanuvae Toma Petelo of the ADC team.
Supreme Court Proceedings
22. 	The prosecution appealed to the Supreme Court. A number of grounds were advanced. The key ones were error in the approach to disputed facts and failure to enter a conviction. 
23. 	In the Supreme Court Clarke J traversed two preliminary legal questions. He concluded that for appeal purposes the jurisdiction for a prosecution appeal from the District Court against a discharge without conviction stemmed from its treatment as a sentence. He also concluded that on appeal from such a discharge, the appellate court was to approach the matter afresh. 
24. 	Clarke J considered that the District Court Judge had erred in her approach to the “laughing as provocation” issue. There ought to have been a disputed facts hearing in the District Court under s 17 of the Sentencing Act followed by a fresh decision as to whether there should be a discharge. The Judge therefore allowed the appeal, set aside the discharge without conviction, and remitted the proceedings back to the District Court for that purpose. 
The Appeal to this Court
25. 	The Attorney appealed to this Court against the Supreme Court decision, advancing essentially three grounds:
•	The appeal to the Supreme Court was not an appeal against sentence but an appeal against acquittal. 
•	The Supreme Court was wrong to direct a disputed facts hearing because whatever view one took over the laughing as provocation issue, it could never be significant in deciding whether there ought to have been a discharge without conviction.
•	On the merits the Supreme Court ought to have entered a conviction.  
26. 	The respondent cross-appealed, arguing that the Supreme Court ought to have upheld the District Court decision. The central basis for the cross-appeal was the argument that the District Court was right in its finding on disproportionality, and hence that the respondent should be discharged without conviction. Encapsulated in that argument was a challenge to the standard of review adopted by the Supreme Court. On that subject Mr Leung Wai submitted that the Supreme Court could not intervene unless the District Court had made an error of law. 
27. 	It will be convenient to begin with the respondent’s approach to the standard of review on appeal followed by the Attorney’s three grounds of appeal. If those three grounds succeed it would necessarily dispose of the cross-appeal. 
Respondent’s Appeal: standard of review
28. 	We respectfully adopt the reasoning and conclusions of Clarke J as to the standard of review on appeal from a discharge without conviction. His decision may be referred to for a full discussion of the relevant provisions and authorities. Section 147 of the Criminal Procedure Act 2016 gives the Attorney a general right of appeal against District Court dismissals, acquittals and sentences. New Zealand decisions based on more narrow statutory appeal rights have no application here. 
29. 	We also agree that in a case of this kind the appellate court is to assess the disproportionality issue afresh. It is not a matter of discretion but one of fact requiring judicial assessment. There is no requirement that the decision at first instance be vitiated by error of fact or law, the taking into account of irrelevant considerations, the omitting of relevant considerations, or by being plainly wrong. 
30. 	On appeal to the Supreme Court the question was to be approached afresh. That is what the Supreme Court did. The respondent’s argument on this aspect fails. 
Attorney’s ground 1: wrong appeal path in treating the discharge as a sentence
31. 	The Attorney’s appeal rights are to be found in ss 147, 177 and 178 of the Criminal Procedure Act. They materially provide:
	147. Right of Attorney-General to appeal to Supreme Court - (1) The Attorney-General may appeal to the Supreme Court:(a) against the decision of a District Court dismissing any information; or (b) against acquittal; or (c) against the sentence passed on any person, unless the sentence is one fixed by law.
	177. Right of Attorney-General to appeal against sentence or acquittal - (1) The Attorney-General may appeal to the Court of Appeal against the sentence passed on any person, unless the sentence is one fixed by law.
	…
	(3) If, on the trial of a person on a charge before a Judge alone, the person is acquitted of that charge, the Attorney-General may appeal to the Court of Appeal against that acquittal (4) If, on the trial of a person on a charge before a Judge sitting with assessors, the person is acquitted of that charge, the Attorney-General may, on the grounds that an error of law has occurred, appeal to the Court of Appeal against that acquittal.
	178. Appeal against decision of Supreme Court on appeal from District Court - The Attorney-General may with leave of the Supreme Court, appeal to the Court of Appeal against a decision of the Supreme Court on appeal from the District Court.
32. 	For present purposes it is sufficient to say that the Attorney has been given a right of appeal from the District Court to the Supreme Court against either an acquittal (s 147(1)(b)) or a sentence (s 147(1)(c). In either case where the matter had begun in the District Court there can be a second appeal from the Supreme Court to the Court of Appeal with leave (s 178). And if the matter began in the Supreme Court at the outset, the Attorney has a right of appeal against a sentence (s 177(1)), an acquittal following a trial before a Judge alone (s 177(3)) or an acquittal following a trial before a Judge and assessors (s 177(4)). 
33. 	Ms Titi submitted that an Attorney appeal against a discharge without conviction from the District Court to the Supreme Court was to be regarded as an appeal against an acquittal in terms of s 147(1)(b) of the Criminal Procedure Act, not an appeal against sentence in terms of s 147(1)(c). We had held otherwise in Sefo. Ms Titi argued that the decision in Sefo was “per incuriam”, that is to say flawed due to the Court’s ignorance or forgetfulness of an inconsistent statutory provision or binding authority. The point was regarded by the Attorney as important enough to warrant a distinct notice of appeal confined to that issue alone. The notice of appeal sought to revisit Sefo on the grounds that:
(a) 	The decision that s10 of the Sentencing Act operates to treat a judicial order discharging a defendant without conviction as a sentence is inconsistent with the purposes of s11 and s69 of the Sentencing Act 2016;
(b) 	The decision affects the application of sections 147, 148 and 154 of the Criminal Procedure Act 2016 in how the Supreme Court should hear and determine on appeals from District Court;
(c) 	The decision was given per incuriam.
34. 	What we said in Sefo was as follows:
	12. The Attorney General appeals on the ground that the appeal is against a sentence passed. (Criminal Procedure Act 2016, s.177(1)). However, a discharge without conviction is taken to be an acquittal (Sentencing Act 2016, s.69(2)). The Attorney General’s right of appeal can only be exercised if an acquittal has followed a trial (Criminal Procedure Act 2016, s.177(3)). There was no trial here. Mr. Sefo pleaded guilty immediately when the charges were called in Court.
	13. However, we accept Ms. Sua-Mailo’s submissions that a discharge without conviction is deemed by statute to be a sentence. Section 10(2) of the Sentencing Act lists within “the hierarchy of sentences” a “discharge or order to come up for sentence if called on.” This provision is not easily reconcilable with s.11(1) which recognises a situation where a discharge without conviction is the more appropriate way of dealing with a defendant than “entering a conviction and imposing a sentence” or with s.69(2) which specifically recites that a discharge without conviction is an acquittal. Both these latter provisions reflect the conceptual distinction between an acquittal, on which the Court is not required to pronounce sentence, and a sentence, which necessarily imposes a sanction whether in the nature of an order, direction or monetary penalty.
	14. Nevertheless, we are satisfied that for those purposes s.10 of the Sentencing Act operates to treat a judicial order discharging a defendant without conviction as a sentence. We have jurisdiction to hear the Attorney General’s appeal as a result.
35. 	Sefo was concerned with an appeal from a discharge originally granted in the Supreme Court but we can see no reason why the reasoning would not apply equally to appeals from the District Court to the Supreme Court. Conceptually a discharge without conviction has more in common with a sentence than an acquittal. An acquittal represents a conclusion that the defendant’s commission of the offence was never established. Sentencing assumes that offending has been established, whether by a court or by guilty plea, and moves on to the Court-imposed consequences. The potential consequences expressly include costs, restitution and/or compensation. Categorising a discharge without conviction as a form of sentence for appeal purposes is therefore both conceptually sound and in conformity with the wording of s 10(2) of the Sentencing Act. 
36. 	The Attorney’s concern is that to treat a discharge without conviction as a “sentence” for appeal purposes would be inconsistent with other provisions in the Sentencing Act and Criminal Procedure Act. There is nothing new in his reference to ss 11 and 69 of the Sentencing Act. They have already been addressed in Sefo. A choice was necessary between conflicting provisions within the same statute. Where there are internal statutory inconsistencies, it is up to the Court to ensure that the legislation achieves the intention to be implied from the statute as a whole.
37. 	The Attorney is also concerned with the impact of ss 147, 148 and 154 of the Criminal Procedure Act. We address these in turn.
38. 	Section 147 is entirely consistent with treating appeals of this kind as appeals against sentence. 
39. 	Section 148 is nothing more than a procedural provision affecting the form of a notice of appeal. Subsection (1) adopts a prescribed form where the Attorney intends to appeal against a “sentence passed on the conviction of a person or to appeal against an acquittal”.  Neither applies here. But prescribed forms cannot be allowed to govern the presence or absence of substantive rights of appeal. And even read literally, s 148(1) does no more than make provision for a prescribed form if the appeal falls within one of the categories named in that subsection.  It does not preclude voluntary adoption of the same or some other form where the appeal falls outside one of the categories expressly referred to. 
40. 	Section 154 is concerned with the Supreme Court’s powers on hearing an appeal from the District Court. Specific powers are spelled out for an appeal against an acquittal (s 154(2)((b)) and an appeal against sentence (s 154(2)(c)). But in practice this could never matter given the Court’s much wider powers in every case to “make an order on the appeal as the Supreme Court thinks fit” (s 154(1)(b)) and to “exercise any power that the Court whose decision is appealed against might have exercised” (s 154(4)). So again, whether an appeal path is categorised as an appeal against sentence or an appeal against acquittal is immaterial. 
41. 	There is nothing in the submissions for the Attorney to persuade us that Sefo was wrongly decided. To the contrary, we cannot understand why this aspect of the appeal was pursued at all. Three points seem to have been overlooked. 
42. 	First, if we had accepted the argument advanced on this appeal it would have had the incidental effect of removing the Attorney’s right to appeal from a discharge without conviction following a guilty plea in the Supreme Court. Section 177 governs the right to appeal in that situation. It will be seen from the statutory extract quoted earlier that the Attorney has no relevant right to appeal unless the appeal is from either a sentence (s 177(1)) or an acquittal reached at trial (s 177(3) and (4)). A guilty plea is not an acquittal reached at trial. As we pointed out in Sefo, the Attorney could not appeal against a Supreme Court discharge without conviction following a guilty plea unless the discharge is treated as a sentence. 
43. 	Secondly, the appeal route adopted in Sefo was the one advocated by the Attorney through his counsel in that appeal. We would have preferred an acknowledgment of this from the outset in the present case. Ms Sua-Mailo is to be commended for the argument she advanced on that earlier occasion. 
44. 	Thirdly, we never received a satisfactory answer to our question as to how the Attorney’s preferred approach would have made any difference to this case in practice. It was not suggested that if the appeal had been treated as one from an acquittal rather than a sentence it would have affected the outcome. Given the very wide powers conferred by s 154(1)(b) and (4) of the Criminal Procedure Act, the Supreme Court could still have allowed the appeal, imposed a conviction, imposed a sentence, and/or remitted the case back to the District Court, whether it had been treated as an appeal against sentence or an appeal against acquittal. 
45. 	To be crystal clear: the Attorney has a right of appeal against a discharge without conviction whether initially granted in the District or in the Supreme Court. That right exists whether the discharge follows a trial or a guilty plea. The Attorney also has the right to bring a second appeal to this Court following an initial discharge in the District Court, and an appeal to the Supreme Court, if leave for a second appeal is first obtained from the Supreme Court. Those ends are best achieved if, for appeal purposes only, the discharge is treated as a sentence. That is not to diminish the operation of such a discharge as an acquittal for other purposes.  
46. 	This ground of appeal fails. 
Attorney’s ground 2: disputed facts hearing unnecessary
47. 	In the District Court there was an issue between the parties over whether the complainant provoked the assault by greeting the respondent’s instructions with laughter.  
48. 	Judge Papalii considered 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.” Later in her sentencing remarks she returned to the question of provocation, observing:
There was also an element of Provocation inferred from a combination of factors including your telling the victim via Jeanne not to drink as he was on duty but he continued. Then when you bumped into him at the end on your way out he was still at it. You confronted him but he reacted by laughing. Generally speaking, the presence of provocation is an important aspect in assessing an accused’s degree of criminality or culpability. But here, I regard the degree of provocation as low. It does not in any way or form excuse your conduct. 
49. 	Counsel did not draw s 17 of the Sentencing Act to Judge Papalii’s attention. In the Supreme Court, Clarke J rightly pointed out that once there was a factual issue on that point, s 17(2) of the Sentencing Act governed the situation. Section 17 required her to indicate the likely significance of the disputed fact and, if significant, to hold a disputed facts hearing. 
50. 	However, the question whether there was provocation, and if so to what extent, is not to be approached as if it turned on technical classification. The situation confronted by a defendant will always be one of the factors bearing on his or her overall culpability. The label put on the situation does not matter. Culpability is to be assessed in the circumstances of each individual case. So in this case it is useful to consider whether the gravity of the respondent’s conduct would be materially affected by laughter, or lack of laughter, during his encounter with the respondent. 
51. 	Even assuming that the complainant had been laughing at the material time, the critical facts would still have been as follows:
(a) 	At an office party the complainant failed to follow the respondent’s instructions and then laughed when the respondent approached him to point this out.
(b) 	The respondent broke a half empty bottle over the complainant’s head.
(c) 	The respondent aimed another bottle at the head but broke it over the complainant’s upraised hand. 
(d) 	The respondent attempted to punch the respondent as he was leaving. 
(e) 	When the respondent struck the complainant he intended to cause him actual bodily harm.
(f) 	The complainant suffered cuts to the head with embedded glass fragments and ongoing symptoms which were still requiring medical attention 18 days later. 
52. 	In our view that summary is more than sufficient for present purposes. It was not necessary to send the case back to the District Court for a disputed facts hearing. It would have been sufficient to approach the facts on a basis which was most favourable to the respondent. That was in fact the approach taken by Judge Papalii. 
53. 	This ground of appeal is upheld. 
Attorney’s ground 3: Supreme Court ought to have entered a conviction
54. 	The principles governing an application for discharge without conviction are almost entirely statutory. Sections 69 and 70 of the Sentencing Act 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.
	(3) A court discharging a defendant under this section may:
	(a) make an order for payment of costs or the restitution of any property; or
	(b) make an order for the payment of any sum that the court thinks fair and reasonable to compensate person who, through, or by means of, the offence, has suffered -
	(i) loss of, or damage to, property; or (ii) physical harm; or(iii) loss or damage consequential on any physical harm or loss of, or damage to, property; or
	(c) make an order that the court is required to make on conviction.
	(4) If the court is considering making an order under subsection (3)(b), it may order a reparation report to be prepared under section 25 as if the court were considering imposing a sentence of reparation.
	(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any physical harm, or loss or damage consequential on physical harm, unless the person who suffered the physical harm is a person described in paragraph (a) of the definition of “victim” in section 2.
	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.
55. 	The correct approach to ss 69 and 70 is not in doubt. The approach has been summarised in various ways but in a case like this one it can be usefully broken down into four steps. The Court must:
(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.  
(i): Gravity of the offence
56. 	In our view Judge Papalii materially understated the gravity of the offence. 
57. 	The Judge characterised the offending as low to moderate. In doing so she did not place any weight on the fact that the first blow was struck with such force that the bottle shattered on impact. And while acknowledging the two subsequent blows as going to the “totality of the offending”, she relied on the complainant’s evasion as a mitigation of their importance. She categorized the offending as “a brief spur of the moment reaction” and as “heat of the moment” retaliation. In doing so she did not advert to the fact that there were three distinct acts of violence, not one. The Judge’s comment that the respondent must have felt he “had a moral duty to tell him off” is understandable but does not justify her further comment that the complainant was “blameworthy”. In a criminal sentencing the sole focus is the culpability of the defendant. Provocation is relevant solely for the purpose of assessing the reasonableness of the defendant’s reaction to the situation he or she faced. Overall the respondent’s conduct here was consistent with a sense of outrage that the complainant, a low-level staff member, would challenge him. 
58. 	The Judge also downplayed the injuries. She did not regard them as serious, describing them as a minor, and therefore surface, laceration. In her view the complainant had to take some blame for the extent of his injuries for failing to get treatment. She overlooked the complainant’s shame and loss of face in being assaulted by a respected superior and the likelihood that he was trying to protect him from the likely consequences of reporting the attack. This is scarcely the first time a complainant has been slow to complain. The reasons for that are well-known. The Judge also downplayed the complainant’s account that he had suffered psychological and emotional harm and questioned his unchallenged account that he suffered ongoing dizziness and discomfort. Her ground for doing so was the surprising reasoning that if it had been true the doctor would have required a scalp x-ray. 
59. 	We have already summarised the key facts in the context of disputed facts. We think it sufficient to proceed in this Court on the factual basis most favourable to the respondent. The factual result is as follows:
(a) 	At an office party the complainant failed to follow the respondent’s instructions and then laughed when the respondent approached him to point this out.
(b) 	The respondent broke a half empty bottle over the complainant’s head.
(c) 	The respondent aimed a second bottle at the head but broke it over the complainant’s upraised hand. 
(d) 	The respondent attempted to punch the respondent as he was leaving. 
(e) 	When the respondent struck the complainant he intended to cause him actual bodily harm.
(f) 	The complainant suffered cuts to the head with embedded glass fragments and ongoing symptoms which were still requiring medical attention 18 days later. He also suffered dizziness and psychological and emotional harm. 
60. 	The key aggravating features appear to be these:
(a) 	The extreme nature of the violence;
(b) 	The number of distinct acts of violence;
(c) 	The use of a weapon;
(d) 	The aim at a particularly vulnerable part of the body;
(e) 	The seriousness of the physical, psychological and emotional injuries;
(f) 	The humiliation of the complainant in front of his fellow-employees;
(g) 	The appalling example to others when in a position of high moral authority. 
61. 	There is much to be said in mitigation. The factors can be summarised as follows:
(a) 	Plea of guilty at first reasonable opportunity. 
(b) 	Full cooperation with the Police.
(c) 	Genuine remorse.
(d) 	Self-referral to counselling.
(e) 	Apology to, and reconciliation with, the complainant.
(f) 	Shame by virtue of his high public profile. 
(g) 	Good character with an unblemished record and favourable testimonials from members of the community of good standing. 
(h) 	Major contribution to the public life of Samoa. 
62. 	Overall we would characterise this as serious offending but with important mitigating factors. 
(ii): Consequences of conviction
63. 	The respondent fears that the consequences of a conviction would include termination of his role as President of the LTC, loss of his right to practise as a lawyer and restrictions on future travel and immigration. 
64. 	We accept that a conviction will reinforce the pressure to terminate the respondent’s role as President of the LTC. The respondent says that he would step down voluntarily if convicted. Even if he did not, added pressure might well be brought from other directions requiring him to do so. This would undoubtedly be a huge blow. On the other hand a conviction would merely put a legal label on a course of conduct which is already in the public domain. It might be argued that it is that course of conduct which has affected his standing and fitness to serve as much as the presence or absence of a conviction. The Court should take care not to usurp the function of bodies whose responsibility it is to determine eligibility for employment by routinely providing discharges in cases of this kind. 
65. 	The respondent also expressed concern that a conviction might cause the Law Society to withhold a practising certificate or take other disciplinary action.  It is entirely a matter for the Law Society but we would not see the respondent’s conduct as leading inexorably to disqualification from practice as a lawyer.  It was not conduct committed in the context of a lawyer-client relationship, a misuse of funds or an offence of dishonesty. Whether or not a conviction is entered, the Law Society can make up its own mind as to his fitness to practise. 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.
66. 	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, we would not go so far as to say that adverse travel consequences could never be relevant in a finely balanced case. 
67. 	Overall, we are in no doubt that the consequences of a conviction would bear heavily on the respondent. However the question remains open whether he will continue as President of the LTC regardless of the presence or absence of a formal conviction. That is for himself and others to determine. We are not persuaded that a conviction would result in loss of opportunity to practise law. 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. 
(iii): Disproportion between gravity and consequences
68. 	We earlier concluded that despite important mitigating factors, this was serious offending. It involved three distinct acts of violence. Two involved aiming a weapon at the head. The injuries were inevitable and significant. Bodily harm was intended. 
69. 	The consequences of a conviction will fall heavily on the respondent, particularly given his present position as President of the LTC. However we are not persuaded that a conviction would necessarily prevent him from practising law. Nor is the case so finely balanced that we should pre-empt the proper role of immigration authorities. 
70. 	Weighing those considerations, we are not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. 
(iv): Overriding discretion
71. 	Our conclusion on disproportionality makes it unnecessary to exercise the statutory discretion that would otherwise follow. We would simply add two comments. There is no doubting the consequences of a conviction for the respondent personally, and for his career. However it is also of fundamental importance that the judiciary not be seen to be protecting one of its own. Judges are expected to conduct themselves to the highest standards. They must be held to account like all other members of the community. In similar circumstances other offenders have suffered significant penalties for serious assaults involving a weapon directed to vulnerable areas of the body.
Conclusion as to discharge without conviction
72. 	For those reasons we allow the appeal and enter a conviction. 
Appropriate sentence
73. 	Both parties asked that if we entered a conviction we should move on to impose the appropriate sentence in this Court. We commend them for this. The matter has been running on for over a year. We have had the benefit of submissions from both counsel as to an appropriate sentence. It is time to bring matters to an end. 
74. 	By this stage we have already traversed all matters bearing on sentence. Although it was a serious offence there is much to be said in mitigation. The respondent cooperated fully with the Police; pleaded guilty at the first reasonable opportunity; has apologised to, and reconciled with, the complainant; is of unblemished character; and has made a major contribution to the public life of Samoa. He has undertaken both a course of counselling and a series of one on one sessions to address alcohol and anger problems. Regardless of any penalty which this Court may impose, he has suffered, and will continue to suffer, shame at his fall from high public office. 
75. 	Taking all these matters into account we conclude that the matter can be dealt with by way of a fine and reparation. In setting the level of the fine we have in mind the statutory context. Parliament considered that the maximum penalty should be seven years’ imprisonment. In accordance with that indication, many offenders have been imprisoned for acts of serious violence. But for major factors in mitigation we would have had to give serious consideration to imprisonment in this case. It is only because of the major factors in mitigation that we have been able to substitute a fine. But it should not be thought that the level of the fine has any precedent value for other types of offence – for example many kinds of traffic offence - in which fines would normally be appropriate.  
Result
76. 	The Attorney General’s appeal is allowed. The respondent’s cross-appeal is dismissed.
77. 	The respondent is convicted of causing actual bodily harm with intent to cause actual bodily harm. He is sentenced to a fine of $5,000 and ordered to pay the complainant reparation of $2,000. 

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE NELSON
HONOURABLE JUSTICE TUATAGALOA