DISTRICT COUIRT OF SAMOA
Police v Viane [2016] WSDC 32

Case name: 	Police v Viane	
		
Citation: 	[2016] WSDC 32	
		
Decision date: 	15 July 2016	
		
Parties: 	POLICE (Informant) v ROMERO NOEL TOBYAS VIANE	
		
Hearing date(s): 	15 July 2016	
		
File number(s): 		
		
Jurisdiction: 	District	
		
Place of delivery: 	In the  District Court of Samoa, Mulinuu	
		
Judge(s): 	DCJ Fepulea’i A. Roma	
		
On appeal from:		
		
Order:	1.	You are granted leave to leave the jurisdiction on the conditions that:
(i)	You appear again for sentencing on 16 December 2016;
(ii)	You undertake the programme referred to in paragraph 31(i) of this decision;
(iii)	You provide confirmation of the programme, academic performance and matters referred to in paragraph 31 of this decision.

Representation: 	Mr. A Tumua for National Prosecution Office	
	Mr. S Leung Wai for Defendant
	
Catchwords: 	Influence of alcohol	
		
Words and phrases:		
		
Legislation cited:	Criminal Procedure Act 1972 s104(1)(b) 	
		
Cases cited:	Police v Papalii and Moalele [132 (25 2011] WSSC November 2011), R v Hughes [2000] NZCA 544, Fisheries Inspector v. Turner [1978] 2 NZLR 233, Police v. Wilson (unreported, 30 March 2016), Police v. Rimoni (unreported, 11 May 2016),  Brunton v New Zealand Police [2012] NZHC 1197, Oosterman v. Police [2007] DCR 131

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant
AND

ROMERO NOEL TOBYAS VIANE of Vaitele tai, Student
Defendant

Counsel:	Mr A. Tumua for National Prosecution Office
		Mr S. Leung Wai for Defendant

Sentence:	15 July 2016

SENTENCING REMARKS OF JUDGE ROMA
Charge
1. 	Defendant, you appear this afternoon for sentencing on a charge of driving whilst the level of alcohol in your breath was in excess of the legal limit.  The maximum penalty as you should and would know by now is 5 years imprisonment or a fine of $5,000.00.
2.	The charge is one of 3 traffic charges that you denied.  On 6 July 2016 when evidence was to be heard, 2 charges were withdrawn and dismissed, and you sought to substitute your not guilty plea with a guilty plea to the present charge.
The Offending
3.	From the Summary, the facts are that on the night of 28 January 2016, you were drinking with friends at home.  At around 2am the next morning, you drove into town in a Toyota Caldina registration number 19323.
4.	At Apia near Vaisigano bridge, one of the tyres burst causing your vehicle to swerve onto the footpath.  Someone must have reported the incident because the police then arrived and took a breathalyzer test that returned a reading of 48 micrograms of alcohol per 100 millilitres of your breath, 8 micrograms in excess of the limit.
5.	Your counsel says you drove to town because your friend requested that you drop him home and buy Mcdonalds on the way.
6.	The Summary also makes reference to the fact that you were discharged without conviction for the same offence on 22 January 2016, 6 days before you were charged for your present offending.
Prosecution submissions
7.	Prosecution submits and I accept that the seriousness of the charge in itself and potential risk of damage to property and to the safety of roadusers are aggravating factors.
8.	They also submit that you lack remorse because you were previously charged with the same offence, and discharged without conviction 6 days before your present offending. 
9.	They refer to previous sentences of this Court in similar offences, and recommend a conviction and monetary penalty with a starting point of $700.00.
Defence submissions
10.	In respect of your offending, Mr Leung Wai submits that the level of alcohol in your breath was at the lower end, and there were no victims of your offending.  He asks the Court to consider that your offending was at the lower end of the scale.
11.	Apart from your guilty plea, Counsel also submits that you showed lack of judgment and immaturity, and that despite your previous and similar offending and the submission by prosecution, you are very remorseful because of the impact this present matter has had on you personally, your mother and family.
12.	Counsel also says that even at your age, you lacked proper guidance, and with your aspirations to successfully complete law school, of which you are now in your third year, you have come to realise the potential impact this matter has on your ultimate goal of becoming a lawyer, and your plans to join your mother in legal practice in the future.
13.	Counsel pleads that even with the Court’s discretion exercised in your favour on a previous discharge without conviction, you be given one more opportunity and granted the same leniency, a discharge without conviction for this present and similar offence.
Discharge without conviction
	The test
14.	Section 104(1)(b) of the Criminal Procedure Act 1972 provides:
"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:
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.”
15.	The exercise of the Court’s discretion under this provision has also been discussed in previous decision of the Courts.  One of those is the case of Police v Papalii and Moalele [132 (25 2011] WSSC November 2011), where 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) of the 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.
16.	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.
17.	I remarked recently in Police v. Wilson (unreported, 30 March 2016) that whilst the New Zealand provision uses the word “all” in reference to the consequences of a conviction being out of all proportion to the gravity of the offending, the word “all” does not appear in our section 104(1)(b), which suggests that the situation is not as extreme and onerous under our Criminal Procedure Act 1972 than it is under the New Zealand provision.
Requirement for real evidence of the consequences of a conviction on the accused
18.	For the Court to consider an application for a discharge without conviction, real evidence of the consequences of a conviction on an accused must be produced.
19.	More recently in Police v. Rimoni (unreported, 11 May 2016) my brother Judge, Clarke DCJ refers to Brunton v New Zealand Police [2012] NZHC 1197 and Oosterman v. Police [2007] DCR 131 in assessing the consequences of a conviction on the accused’s travel and employment prospects, and says:
“In the modern age where international travel is so common and offences of this type prevalent and serious as conceded by counsel, the speculative possibility of difficulties with future travel, employment or training is not sufficient to warrant the exercise of the Court’s discretion under section 104. Real evidence should be produced.”
Effect of a discharge without conviction
20.	As to the effect of a discharge without conviction, section 104(5) provides that “A discharge under this section shall be deemed to be an acquittal.”
	Relevance of a previous discharge of conviction
21.	As to whether the Court can take into account the fact that an accused has previously been discharged without conviction, the following passage from a New Zealand High Court decision in Police v. McCabe [1985] 1NZLR 361 is relevant.  Comparing the use of the fact of a discharge for general purposes, and in a situation where an application for a discharge is made where there has been a previous discharge for the same offending, Roper J says as follows:
“… I think the situation is quite different where an application is made for discharge where there has been a previous discharge for the same type of offending.  In that case, it is not the fact that the accused has previously offended in the same way that is important but that he has previously been discharged for the same offending.  The distinction may be subtle but I regard it as real.”
Discussion
The gravity of your offending
22.	Your breathalyzer test returned a reading of 48 micrograms of alcohol per 100 millilitres of breath, 8 micrograms over the 40 micrograms limit.  There were no victims of your offending and arguably, as your Counsel submits, your offending was at the lower end of the scale.
	The consequences of a conviction on you
23.	You are now 20 years of age.  You are in your third year in law school at Waikato University in New Zealand, and will travel back next week to continue with your studies.  You aspire to become a lawyer and join your mother in legal practice in the future.
24.	You were previously discharged without conviction for the same offence and I must take that into consideration.
25.	Your Counsel says that you are a promising law student, but there is no evidence in the form of a report from the University confirming your academic performance, especially in the last semester after you were discharged for a previous similar offence, charged for the present matter, and granted leave by this Court to leave the jurisdiction to continue your law studies.
26.	Counsel also argues the ‘likelihood’ that the Law Society Council will not issue you a practising certificate in the future, if I convict you on this charge.  Apart from citing section 3(2)(a) of the Law Practitioners and Legal Practice Act 2014 on the lawyers obligations to “uphold the rule of law and to facilitate the administration of justice”, there is no evidence before me that you will in fact be refused admission to the bar if I enter a conviction against your name.
27.	I am mindful however of the short time between your guilty plea and your sentencing this afternoon, as well as your proposed departure to continue your studies.
Whether the consequences of a conviction will be out of proportion to the gravity of your offending.
28.	If I weigh the gravity of your offending against the consequences of a conviction on you on the matters before me today, I would not be satisfied that the consequences of a conviction would be out of proportion to the gravity of your offending.
29.	But I have considered your matter carefully and decided not to impose sentence today until I have considered further information which I will shortly order you to provide to the Court.
30.	For that reason, I have decided to defer your sentencing to 16 December 2016.
31.	Between now and then, you are ordered to:
(i)	Attend at your expense a relevant and recognized drug and alcohol programme in New Zealand and provide written confirmation of your successful completion of that programme;
(ii)	Provide confirmation of your academic performance at the University of Waikato Law School, especially for this year 2016, following your earlier discharge and being charged for the same offence in January this year;
(iii)	Provide real evidence of the impact of a conviction on a future application for admission to the bar.
32.	I make it very clear that your successful completion of the programme and production of the information ordered will not necessarily result in you being discharged without conviction.
33.	But this should provide you an opportunity to carefully rethink matters, fully realise the consequences of these matters, real and potential, on you and your family, and redeem yourself.  I encourage you to use this opportunity to work even harder, attain above average results in University and lay a better foundation of what you have decided to become in the future.
Decision
34.	You are granted leave to leave the jurisdiction on the conditions that:
(i)	You appear again for sentencing on 16 December 2016;
(ii)	You undertake the programme referred to in paragraph 31(i) of this decision;
(iii)	You provide confirmation of the programme, academic performance and matters referred to in paragraph 31 of this decision.

JUDGE FEPULEAI AMEPEROSA ROMA