DISTRICT COURT OF SAMOA
Police v Tulaga [2016] WSDC 22

Case name: 	Police v Tulaga	
		
Citation: 	[2016] WSDC 22	
		
Decision: 	17 May 2016	
		
Parties: 	POLICE v LOTU TULAGA, male of Lotopa.	
		
Hearing date(s): 	4 and 21 April and 13 May 2016	
		
File number(s): 	D586/16.	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	DISTRICT COURT JUDGE CLARKE	
		
On appeal from:		
		
Order:	-	Convicted and ordered to come up for sentence in 6 months if called upon by the Court.
	
	A Tumua for prosecution 	
Representation: 	M.G Latu for defendant	
		
Catchwords: 	Assault – gravity of the offending – aggravating features – mitigating features – sentence 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.123 	
		
Cases cited:	Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011)	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

LOTU TULAGA, male of Lotopa.
Defendant

Counsel:	
A Tumua for National Prosecutions Office	
M G Latu for defendant	

Decision :	17 May 2016

SENTENCING DECISION OF JUDGE CLARKE
1	Mr Tulaga, you appear this morning for sentencing on one count of Common Assault in breach of section 123 of the Crimes Act 2013. The charge relevantly reads that “at Apia on the 17th day of February 2016, the above named defendant of Lotopa, assault Lui Steven Sipiliano male of Matautu uta.”
2	You pleaded guilty to the charge at the first available opportunity.  The maximum penalty is 12 months imprisonment.
The Offending
3	According to the amended Summary of Facts, the incident from which the charge arises occurred on the 17th February 2016 at around 9.00am. You were in the office with the victim. You called to the victim to come to you. The victim didn’t come to you to see what you wanted but instead told you that he has to go out of the office. You again called out to the victim to come to you but instead, the victim walked outside. When he came back from his duties in town, he returned to his desk. You went to the Victim and asked him why he left the office when you had asked him to come over. You then punched the victim hitting him on the forehead. You then punched the victim again but he blocked the second punch.
4	You told the Probation Service in your Pre-Sentence Report that you had been working with the victim to bring the in custodies to the Court and had divided the responsibilities between yourself and the victim. You told Probation that the victim was unhappy with you directing him on the division of the work. This was the same day in which Police were required to attend to school brawling in the town area and you couldn’t reach the victim to come to assist with the matter. When you spoke to the victim the next day about what had happened, you say he swore at you and you then struck the victim. The Summary of Facts does not refer to the victim swearing at you. Two days later, you were cautioned and charged.
The Accused
5	According to the Summary of Facts, you are a 36 year old Police Officer of Lotopa. You have served as a Police Officer for 12 years. You refer in your Pre-Sentence Report to having worked in General Policing, CID and the Police Intelligence Unit. 
6	You are married and have one child. Your wife has written to the Court through the Probation Service speaking of your love for your family, your child and your commitment to your work. She speaks of the effect of your offending and your sadness at your suspension and the effect on your family if you to lose your job with Police.
The Victim
7	The victim is a 24 year old male of Matautu-uta. He is a serving Police Officer with 2 years experience in Police attached to the General Policing Unit. He holds the rank of Constable. According to the Summary of Facts, he suffered a red bruise on his forehead as a result of your assault.
8	At your sentencing hearing, the victim addressed the Court. He confirmed that you and he had reconciled and your wife has also asked for forgiveness. The victim asked for the withdrawal of the matter and referred to you as a big brother in the workplace.
Aggravating features of Offending
9	The aggravating features of your offending are as follows:
	(a)	The offending occurred in your workplace and whilst you were on duty;
	(b)	You are a Police Officer and you assaulted a fellow colleague, another Police Officer;
	(c) 	Your actions lacked discipline which is critical to the functioning and order of a Police Force; and
	(d)	Your assault involved two punches targeted at the victim’s head. It was not a single isolated punch.
The mitigating features of your offending
10	There are no mitigating features of your offending. I note that you however told the Probation Service that the victim had sworn at you and you therefore assaulted him.
The aggravating factor relating to you as an Offender:
11	You are a first offender. 
The mitigating factors relating to you as an Offender:
12	Firstly, I take into account that you entered a guilty plea at the earliest opportunity. When this matter was mentioned on 8 March 2016, you entered a guilty plea. Your early guilty plea saved the Court time, the prosecution expense and witnesses the inconvenience of giving evidence. I accept that by pleading guilty, you have accepted full responsibility for your actions.
13	Secondly, you have directly expressed your remorse to the Court. You told the Court that the incident should not have occurred and you expressed genuine remorse and regret for the incident before the Court. Your remorse as well as that of your wife is reflected in your wife’s letter addressed to the Court.
14	Thirdly, you told the Court that you had reconciled with the victim. This is confirmed in the Pre-Sentence Report as well as the fact that you have been forgiven by the victim for your actions. The victim has asked the Court directly as well as stated through the Pre-Sentence Report that the matter before the Court be withdrawn.
Application for a discharge without conviction
15	You have asked the Court to exercise its discretion in favour of a discharge without conviction under section 104(1) of the Criminal Procedure Act 1972. The basis of your application stated by you to the Court was because of your remorse. You said if convicted, you would be sacked.
Discussion
16	The Prosecution has filed a Sentencing Memorandum that has set out other sentences imposed by the District Court in cases of assault. In all cases referred to by Prosecution in its Sentencing Memorandum, the defendants have been convicted and sentenced to 6 months suspended sentence. In 4 of those cases, the defendant had been referred to a diversionary program and then sentenced. Prosecution applies for a sentence of supervision with conditions for anger management and community work. In terms of the application for discharge without conviction, Prosecution left that matter to the Court for its determination and has filed no submissions in respect of section 104 of the Criminal procedure Act 1972.
17	Now I turn to section 104 of the Criminal Procedure Act 1972. You have applied for a discharge without conviction. Prosecution advised the Court that it takes no position on the application and leaves the matter to the Court’s discretion. 
18	Section 104 provides as follows:
•	"If after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence, is of the opinion that, although the charge is proved:
(a)	the offence was in the particular circumstances of so trifling       a nature that it is 	inexpedient to inflict any punishment or any other than a nominal punishment; or
	 (b)	Having regard to the age or some other special circumstance of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed; 
	it may discharge that person without convicting her or him unless a minimum penalty is expressly provided for the offence by any enactment. ”
19	The exercise of the Court’s discretion under section 104 has been discussed in previous decisions of the Courts.  In Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011), a sentencing decision of His Honour the Chief Justice, the Supreme Court granted a discharge without conviction for one of the accused female police officers Moalele who was also found guilty of common assault after a defended hearing.  His Honour the Chief Justice found that after weighing up the gravity of the accused’s offending against the consequences of a conviction on her promising career in the Police Force, the consequences of a conviction would be out of all proportion to the gravity of her offending. 
20	In that case, His Honour the Chief Justice adopted as the relevant approach in determining the question of whether to discharge an accused without conviction under 104 (1)(b) under Criminal Procedure Act 1972, the three step approach that was indentified in the case of R v Hughes [2000] NZCA 544, as derived from the judgment of Richardson, J in Fisheries Inspector v. Turner [1978] 2 NZLR 233.
21	The three step approach is such that the Court must firstly consider the gravity of the offending; secondly, the consequences of a conviction, and finally whether these consequences are out of all proportion to the gravity of the offending. 
22	Applying the three step approach to your case Mr Tulaga:
	(i)	The gravity of your offending
23	In terms of your assault, you punched the victim twice and the first of these punches were targeted to the victim’s head striking the victim on the forehead. Your second punch was blocked by the victim. The victim sustained a red bruise to his forehead as a result of your offending. The victim of your assault was a Police Officer and your assault was carried out in your workplace on duty within the Police Station. The nature of your offending involving two punches targeting the victim’s head adds to the seriousness of your offending leaving the victim with a swollen forehead. Your assault is of a more serious nature than that by Efo Moalele which the Honourable Chief Justice described that the use of the “word ‘tātā" suggests that they were not powerful hits” in respect of the assault. The Honourable Chief Justice also noted there were no ‘injuries’ except for pain on the finger tips. The circumstances of your offending including the nature of your offending were more serious than that carried out by Efo Moalele.
	(ii)	The consequences of a conviction on you
24	You have told the Court that should you be convicted of the assault, you will lose your position with the Police Service. Your counsel told the Court in his written submissions that a conviction will have serious consequences on your career which includes “reduction in both rank and pay as well as dismissal.” 
25	Under the Police Service Act 2009 (“the Act”), section 57 provides for automatic termination only where you are convicted and imprisoned (s. 57(1)(d)), you resign (s. 57(1)(a)), you are declared medically unfit (s. 57(1)(b)) or you are dismissed for poor performance (s. 57(1)(c)). 
26	I note that section 50 of the Act provides that where you are convicted of a criminal offence, you commit a breach of duty amounting to misconduct under the Act. There are various penalties that may be imposed on you by the Commissioner. These include that no punishment be imposed, you be fined not more than $2,000.00, you be discharged despite the charge proven, you be cautioned or you be dismissed (s. 51B). The consequence of a conviction does not therefore automatically result in your dismissal. If you are dismissed or if you are otherwise apparently dissatisfied with the penalty imposed by the Commissioner, you can appeal that determination to the Board of Appeal. The Board of Appeal consists of a Judge, Assistant Commissioner and an officer of equal or higher rank to you. Dismissal is therefore not automatic and rights of appeal within the Police Disciplinary process exist for you should you be dissatisfied with the outcome of any penalty imposed including a penalty of dismissal. The potential consequences therefore vary from no punishment to a dismissal.
27	You have worked as a Police Officer for 12 years. You have submitted a reference from the Church of Latter Days Saints which says that you are an active member of the Church. Your wife as well as the Vaimoso Sports Club has provided references that speak of your dedication to your role as a Police Officer and the hard work you that you have carried out in the Police Force.
28	The Court has not been given a reference from the Police Service so I cannot form a firm view whether your career as a Police Officer is a promising one. I note however that you have been a Police Officer for 12 years. In Police v Papalii and Moalele, the Police Commissioner provided a reference in support of Efo Moalele.
29	I am in no doubt that a conviction against you for common assault will have consequences for you in terms of the disciplinary process provided for under the Act. Those consequences however do not automatically mean that you will be dismissed. A number of different penalties may be imposed on you by the Commissioner. Furthermore, should you be dissatisfied with the penalty imposed such as dismissal, you may appeal that determination to the Board of Appeal which is presided over by a Judge and two other persons. There are protections in place under the Act for appeal to the Board of Appeal. The Panel of the Board of Appeal includes a Judge of either the Supreme Court or District Court of Samoa. 
	(iii)	Whether the consequences of a conviction will be out of proportion to the gravity of your offending.
30	The offending committed by you is aggravated by the nature of your assaults on a fellow Police Officer in the Police Station in the course of the conduct of your duties. They fall within a more serious category than that of Efo Moalele for instance. I have weighed up the gravity of your offending against the consequences of a conviction on you including the fact that if you are dissatisfied with any determination by the Police Service with the punishment against you, you have the right to appeal that punishment to the Board of Appeal. The consequences of a conviction vary from no penalty at one end of the disciplinary spectrum to dismissal at the other. I have therefore reached the conclusion that the consequences of a conviction would not be out of all proportion to the gravity of your offending.  
The penalty
31	Mr Tulaga, in sentencing, I take into account your remorse shown to the Court together with the references provided and in particular, the statements of support from the victim. Taking the whole of the aggravating and mitigating factors of your offending including that personal to you as an offender, you are convicted and ordered to come up for sentence in 6 months if called upon by the Court.

JUDGE LEIATAUALESA D. M. CLARKE