DISTRICT COURT OF SAMOA
Police v Paul [2016] WSDC 57

Case name: 	Police v Paul	
		
Citation: 	[2016] WSDC 57	
		
Decision date: 	7 November 2016	
		
Parties: 	POLICE (Informant) and TUALAGI ANITA PAUL (defendant)	
		
Hearing date(s): 		
		
File number(s): 	D4166/16	
		
Jurisdiction: 	District	
		
Place of delivery: 	In the District Court of Samoa, Mulinuu	
		
Judge(s): 	DCJ Fepuleai A. Roma	
		
On appeal from:		
		
Order:	-	Ordered to pay $300.00 of prosecution costs and $200.00 Court costs by 4pm this afternoon, which is exactly 50 minutes from now.  Upon payment of that sum of $500.00, you will be discharged without conviction.	
		
Representation: 	F. Lagaaia for Prosecution	
	R. V. Papalii for the Defendant
	
Catchwords: 	common assault – the offending – the victim – the accused – aggravating factors – mitigating factors – gravity of the offending - 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s119(1), 
Criminal Procedure Act of 1972 s104, 
Sentencing Act 2016 s69, 	
		
Cases cited:	Police v. Kylie Wilson, 
Police v. Papalii & Moalele	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant
AND

TUALAGI ANITA PAUL female of Vaoala
Defendant
	
Counsel:	Ms F. Lagaaia for National Prosecution Office
		Ms R.V. Papalii for the Defendant
Sentence:	7 November 2016

ORAL SENTENCE OF JUDGE ROMA
Charges
1.	Defendant, this is my decision in this matter.  For Counsel, my sentencing remarks will be available in writing.  You need not take notes.  
2.	Ms Paul you appear in Court this afternoon for sentencing on one count of common assault.  The maximum penalty under law is 12 months imprisonment. The record shows that you were initially charged with causing bodily injury with intent under section 119(1), Crimes Act 2013.  You denied that charge and when reduced to one of common assault on the 11th October this year, you sought through Counsel to vacate your not guilty plea and enter a guilty plea to the new charge.
The offending
3.	The summary of facts says that the offending occurred in the evening on the 26th December, Boxing Day 2015.  The victim was with some friends and family at the Glass Lounge bar at the marina.  The occasion was a class get together of your friends from secondary school.  Upon arrival, the victim spoke to you and others obviously because you all attended the same school.  Later on after midnight, the victim began to say her goodbyes at which point she then got into an argument with you.  You pushed the victim.  She pushed you back and others had to intervene and separate you two.  The victim then left for the car park to wait for her car. You followed her, with your high heel in your hand and swung it at the victim’s direction aiming the tip of the heel at her head.  She collapsed and blacked out.  She was taken to the emergency ward where she received medical treatment including 6 stitches to her head.  
4.	Your counsel submits that I must consider and take judicial notice of the facts as they were in the case of Police v. Kylie Wilson.  Ms Wilson herself being the victim of your offending.  There are no authorities in support of that argument.  But as I indicated to Counsel when the matter was last called, the Summary of facts is a matter for prosecution and defence to sort out, unless there are disputes significant as to impact sentencing.  This afternoon, Prosecution sought to amend one part of the summary.  As to how your offending occurred, they maintain the Summary as originally filed.  Ms Papalii on the other hand argues your version of the events in her written submissions.  In my view the difference in versions has little if any impact on the sentence I will impose.  What is clear in respect of the circumstances is that at the time of your offending, tension between the two of you was still high.
Victim
5.	The victim according to the Summary is a 25 year old female of Lelata.  The victim impact report says that as a result of the incident, she suffered a deep laceration to the left side of her forehead.  It required 5 stitches, one short of the 6 referred to in the Summary.
6.	She further says in the report that she is now left with a scar on the left side of her forehead.  She was traumatised and for a while, she became distant from relatives and unable to go out in public places.  She took time off work for her injuries to properly heal.
7.	But she also confirms that reconciliation has taken place.  You have apologised to her and likewise herself to you.  She has forgiven you and does not want you to suffer more than you have.
Accused
8.	From the documents before me you are 27 years of age.  You have two very young children.  You have recently separated from your partner.  You manage a family hotel and business at Vailima.  You have also applied for a placement at Auckland University with the intention to complete studies that you once commenced and had to put on hold when you became pregnant with your eldest son.  You are also a first offender.  
Aggravating factors relating to your offending
9.	Firstly, this is an assault to the head and as submitted by Ms Lagaaia, the head is the most vulnerable part of the body.  She argues that this was a deliberate blow to the head.  Secondly, your offending involved the use of an object, namely a heel which could easily cause injury as it did in this case.  Prosecution submits that there was premeditation on your part because in their version of the facts, when the scuffle had broken up, you followed the victim to the car park and assaulted her there.
10.	The injuries suffered by the victim are also an aggravating factor of your offending.  
Mitigating factors relating to your offending
11.	I take into account that this was a provoked assault.  I accept that it all started because of what the victim said to you so that there was a degree of provocation on the part of the victim.  I also consider that at whatever point you hit the victim with the heel, tension was high.
Aggravating and Mitigating factors relating to you as Offender
12.	There are no aggravating factors relating to you as an offender.
13.	But in terms of the mitigating factors, I take into account your plea of guilty.  I also accept that you are genuinely remorseful.  There has been reconciliation as confirmed in the victim impact report.  The victim further says in the victim impact report that she does not want you to suffer more than you have.  I also take into account your personal circumstances.  Again you are 27 years of age.  You now run and operate the family business on behalf of your parents.  The testimonials are attached to the probation report from Papaliitele Niko Lee Hang, Hans Joachim Keil, Joe Stanley and Pastor Samoa Unoi, all prominent and upstanding members of the community speak highly of your character.  You are also a first offender.
Discussion
14.	Prosecution recommends in your case a conviction and sentence of 12 months probation.  In their sentencing memorandum, they refer to 4 cases where the Court imposed convictions and suspended sentences.  But there are other cases where no convictions were entered.
15.	Your Counsel on the other hand seeks that you be discharged without conviction.  Previously, the discretion to grant a discharge without conviction was provided for under section 104, Criminal Procedure Act 1972.  I do not wish to read out what the sections says, but recently under the newly enacted Sentencing Act 2016, section 69 gives the Court the same power.  As to how the Court’s discretion may be exercised, section 70 of the Act provides guidance.  It states that “the Court must not discharge the defendant without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction on the defendant would be out of all proportion to the gravity of the offence.”
16.	The only difference between the 2 sections, 104 of the 1972 Act and 70 of the new Sentencing Act is the use of the word ‘all’ in the new Act.  The new provision is similar to the New Zealand provision and the test is whether the consequences of a conviction would be out of all proportion to the gravity of your offending.
17.	Even with the amendment, the approach in determining an application a discharge without conviction is the same three - steps approach as adopted by the Supreme Court in Police v. Papalii [2011] 132 (25 November 2011) and followed in recent decisions of both the Supreme and District Courts.
18.	The three steps approach is such that the Court must firstly consider the gravity of the offending; secondly the consequences of a conviction; and thirdly whether the consequences of a conviction on you would be out of all proportion to the gravity of your offending.
(i)	Gravity of your offending.  
	Ms Lagaaia submits for prosecution that the gravity of your offending is at the high end given firstly the injury suffered by the victim; secondly the use of an object and thirdly the lapse of time after you were separated and when you inflicted harm on the victim.
	As I have said earlier, this was a provoked assault.  Even if I accept Tualagi that you went back after you were separated and hit the victim with the heel, I bear in mind that tension was still high; you were both intoxicated and I accept that your actions were a spur of the moment.  
	The victim suffered serious injury which impacted her physically and mentally.  But taking into account all the circumstances, I am of the view that your offending is not on the high end.
	Aside from the offending, you know each other well, and this was an unfortunate incident that spoilt an otherwise fun evening for you both.  You have since reconciled and the victim does not want you to suffer any more.
(ii)	Consequences of a conviction on you
	Prosecution argues that the consequences of a conviction on you would be mere inconvenience.  Your Counsel contends otherwise and refers in her sentencing submissions to the grounds.  You have plans to pursue and complete university studies. For sometime now, you have been managing your family hotel, which work Counsel says requires overseas travelling.  You have a young family.  You have gone through a lot according to what is stated extensively in your affidavit.  I accept the submission by Counsel that a conviction would indirectly if not directly impact your chances to pursue and complete your university studies.
(iii)	Whether the consequences of a conviction would be out of all proportion to the gravity of your offending
	Taking into account the circumstances of your offending and the impact on the victim; the injuries she suffered; the fact that you have since reconciled; your personal circumstances as outlined by Counsel and in particular your plans to pursue and complete your studies, I am satisfied that in your case, the consequences of a conviction on you would be out of all proportion to the gravity of your offending.
Sentence
19.	You are ordered to pay $300.00 of prosecution costs and $200.00 Court costs by 4pm this afternoon, which is exactly 50 minutes from now.  Upon payment of that sum of $500.00, you will be discharged without conviction.
20.	Are we clear on the sentence?  Thank you Ms Paul.  Thank you Counsel.

JUDGE FEPULEAI A. ROMA