THE DISTRICT COURT OF SAMOA 
Police v Annandale [2017] WSDC 15

Case name: 	Police v Annandale	
		
Citation: 	[2017] WSDC 15	
		
Decision date: 	26 July 2017	
		
Parties: 	POLICE (Prosecution) v NELSON ANNANDALE male of Siumu (Defendant)

Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Alalatoa Rosella Viane Papalii	
		
On appeal from:		
		
Order:		Upon the forthwith payment of $50 court costs and $50 prosecution costs you will be discharged without conviction. 

Representation: 	Sergeant K Stanley & Ms Atoa for Prosecution
Mr L H Schuster for Defendant

Catchwords: 	Discharge without Conviction 
Carelessly Driving	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1960 sections 38 and 72A (2)
Sentencing Act 2016 section (1) (d) (i) to (iii) & (e)
NZ Sentencing Act 2002 sub section106 & 107

Cases cited:	P v Lilo Lauina [2017] WSDC 6

R v Hughes [2008] NZCA 546

P v Papalii & Moalele [2011] WSSC 132

Pale v Attorney General [2010] WSSC 122

P v Rimoni ( Unreported sentencing decision of Judge now Justice Clarke delivered May  2016) 
 
P v Tualagi Paul (Unreported sentencing decision of Judge Roma delivered on 7 November 2016) 

P v Afoa Tui Vaai (Unreported sentencing decision of Judge now Justice Clarke delivered on 30 November 2016)

P v Viane [2016] WSDC 56

Iosefa v Police HC Christchurch CIV -2005- 409-64, 21 April 2005 at [34]; 

Alshami v Police HC Auckland CRI – 2007- 404-62, 15 June 2007; 

Currie v Police HC Auckland CRI -2008-404-307, 27 May 2009 at [49]. 

		
Summary of decision:		

THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

NELSON ANNANDALE male of Siumu
Defendant

Representation:
Sergeant K Stanley & Ms Aftoa for Prosecution
L H Schuster for Defendant

Sentencing Submission: 21 July 2017
Sentencing Date: 26 July 2017

SENTENCING DECISION
CHARGE
1.	The accused Nelson Annandale (“Nelson”)  appears for sentence on a charge of carelessly driving a Hyundai Tucson vehicle (“Tucson”) on Vaiala Road on 23/04/17 contrary to s38 Road Traffic Ordinance 1960 (“RTO”).
2.	The charge attracts a penalty of a fine not exceeding 2 penalty units on a first offence pursuant to s72A (2) RTO.
3.	At first Nelson, you denied the charge then decided to change your plea through your counsel on 17/07/17. You now appear for sentence. 
THE OFFENCE 
4.	You accepted the summary of facts (“SOF”) through your Counsel.
5.	The SOF stated that on the night in question at about 11.15pm at Matautu,you were driving the Tucson heading from the Vaisigano bridge direction towards the wharf.
6.	At the same time and place, the victim was driving her Suzuki Swift vehicle registration number 26339 (“The Suzuki”) from the opposite direction heading from the wharf towards the Vaisigano Bridge.
7.	As clarified by your Counsel, in front of the X-Club Bar at Matautu, you decided to turn right whereby you collided with the Suzuki causing substantial damage to it to the effect it was a write off.
8.	In your sworn affidavit Nelson of 19/07/17 at paragraph 4, you admitted to causing the accident.
THE ACCUSED
9.	No Pre-sentence report was ordered but the affidavit you filed shed some light on your personal background.
10.	You are 24 years old and employed as a sales and marketing officer by your family run business –Sinalei Hotel at Siumu (“Sinalei Hotel”).
11.	You had a high level of education; being a former student of Samoa College and Kings College in Auckland, NZ. From there you attended Auckland University where you successfully graduated with a Bachelor of Commerce in marketing and business management.
12.	You then returned home to help out your family in running Sinalei Hotel. In your role, you travel regularly overseas to market and promote Sinalei Hotel as a tourist destination.
THE VICTIM 
13.	The victim Va Matautia, female of Vaivase Tai who works at SNPF submitted a victim impact report (“VIR”) which confirms that reconciliation took place and she has forgiven you, Nelson.
14.	The victim also confirmed you already settled in full the pre - accident value of her write off Suzuki in the sum of SAT$13,500.00. 
AGGAVATING FEATURES OF OFFENDING
15.	Nelson, as is common with this type of offence, you clearly breached your duty owed to other users of the road you were travelling on to drive with due care at all times having regard to the nature and circumstances of the road at the material time.
16.	It is common knowledge that this part of town is always busy at nights especially from mid-week to Saturdays due to club goers and diners frequenting various establishments located on that road. This incident occurred on Saturday night so it can be safely assumed that the road would have been busy.  The fact that it was busy places a higher onus on drivers using that part of the road to be extra prudent and cautious when driving.  
17.	The charge of driving whilst the level of alcohol in your breath was in excess of the legal limit was withdrawn. However, you admitted in your affidavit at paragraphs 2 and 5 it was a factor and you regretted driving having consumed alcohol. So I accept alcohol was a factor impeding your driving.
18.	The damage sustained to the victim’s Suzuki was substantial as it was a write off.
MITIGATING FEATURES OF OFFENDING
19.	I consider as a factor mitigating the offence your momentary lapse of judgment in your estimation of the speed and distance with which the victim’s car was travelling when you decided to turn right towards X- club. 
AGGRAVATING FACTORS RELATING TO NELSON AS OFFENDER
20.	There are no aggravating factors relating to you as a first offender. 
MITIGATING FACTORS RELATING O YOU AS AN OFFENDER
21.	Firstly, is your change of plea reflecting your remorsefulness and willingness to accept responsibility for your actions. Though delayed and the matter has been in the system since you were charged on 25/03/17, it has saved the Court some time and resources from a full hearing.
22.	I accept your counsel’s explanation that you had always intended to change your plea but you required time to make right the harm to the victim and to await receipt of the trial documents.
23.	Your remorse is further reflected in the immediate remedial actions you have taken. This included your placing the victim in the position she was in prior to the accident by paying her the pre accident value of her Suzuki in the sum of $13,500. This is a significant sum and weighs heavily in your favour. You settled the sum in one lump payment as opposed to your dragging it out over a period of time prolonging the suffering of the victim.  This is in line with s(1) (d) (i) to (iii) & (e) Sentencing Act 2016 (“SA”).
24.	Your remorse is also evident in the apology offered to the victim and achievement of reconciliation. The victim confirms she has forgiven you. She has moved on with her life as at the end of the day, you have done all you could to minimize the harm on her by compensating her for the pre accident value of her Suzuki.
25.	At the end of the day you are of good character and have an unblemished record meaning this is the first time you have committed an offence.
26.	I take into consideration your personal circumstances. You have a high level of education and have returned home to contribute to your family run business and our country through the work you carry out not only to market Sinalei Hotel but also Samoa as a tourist destination.
27.	I accept the offence is out of character and it was due to momentary lapse of judgment on your part.
APPLICATION TO DISCHARGE WITHOUT CONVICTION 

Principles Applied to Discharge without Conviction
28.	Your Counsel has requested that you be discharged without conviction under ss69 & 70 SA. Prosecution does not oppose the application. But I remind myself that such consent does not bind the Court.
29.	As I observed in P v Lilo Lauina a decision on a similar request for a discharge without conviction on a charge of negligent driving causing death, an application of this nature, was previously dealt with under 104 of the repealed Criminal Procedure Act 1972 (“CPA”).
30.	However with the new SA, it is now governed by ss69 & 70 SA recited below which mirrors ss106 & 107 NZ Sentencing Act 2002: 
	“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.
	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.”
31.	As I observed in Lauina as well, s70 SA mandatorily requires that before a Court exercises its discretion to discharge an accused without conviction under s.69 SA, it must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 70 is therefore a pre-condition or gateway that any application for a discharge without conviction must pass.
32.	In Lauina as well I conducted a comparative analysis of NZ case laws from which CJ Sapolu in P v Papalii & Moalele adopted the three step approach for a discharge without conviction application under the repealed CPA regime.
33.	I concluded that the enactment of ss69 and 70 SA did not create a new threshold test for the exercise of the discretion to discharge without conviction an accused. In other words the three step test adopted by CJ Sapolu in Papalii & Moalele which our Courts continue to follow is still applicable under the SA.
34.	The three step test concerns firstly, the court considering the gravity of the offending. Secondly, the direct and indirect consequences of a conviction on an offender and thirdly, whether the consequences of a conviction are out of all proportion to the gravity of the offending.
35.	I now turn to consider the three step test below.  

Gravity of the offending
36.	In assessing the gravity of your offending, I must take into account the aggravating and mitigating factors relevant to your offending and those personal to you Nelson as an offender and any other factor that might affect the Court’s assessment of your degree of culpability.
37.	The charge you face is careless driving brought under s38 RTO. Pursuant to s72 RTO, the penalty parliament has allocated to this type of offence is a fine not exceeding 2 penalty units or $200 for a first offender, such as yourself Nelson. 
38.	At first glance the penalty is not severe and suggests Parliament sees it as a minor offence compared to other traffic offences in the same category. Your counsel however submitted that although this might be so, the fact of the matter is any violation of the law is on the high end. Your decision to turn when it was unsafe to do so renders the degree of culpability as high.
39.	It is true that perhaps alcohol might have played a part. But at the same time, the amount of micrograms in your breath was just above the legal limit of 40 micrograms.
40.	I accept that your decision in turning the vehicle right whilst there was an oncoming vehicle indicated a momentary lapse of judgment on your part. You might have thought you would have been able to successfully complete the turn and make it safely across the road. But you clearly underestimated the speed and distance with which the oncoming vehicle was travelling which as you quite properly admitted, had the right of way. The end result as seen is a damage to the vehicle of the victim. 
41.	I must balance your careless actions against the mitigating factors in your favour. You have changed your plea, is remorseful, a person of good character with a high level of education and an unblemished record. Most importantly you have made good the harm done to the victim through the payment of compensatory damages and you also reconciled with her.
42.	Having weighed all these factors, I am of the view that the gravity of the offending is on the lower end of the scale in terms of penalty and severity.
 
Direct and Indirect Consequences of a Conviction
43.	As I said in Lauina, the threshold test for the consequences to be taken into account and the operation of the proportionality test was explained in the NZ High Court case of Iosefa v NZ Police where the Court there observed that:
	“…It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient the court is satisfied there is a real and appreciable risk that such consequence would occur.”
44.	I also bear in mind s6 (g) SA where one of the principles of sentencing is to:
	“Take into account any particular circumstances of the defendant that mean that a sentence or other means of dealing with the defendant that would otherwise be appropriate would, in the particular instance, be disproportionately severe”
45.	Your counsel argued that there will be substantial hardship on you if a conviction is ordered. The nature of your job as a marketing officer for Sinalei Hotel requires that you travel regularly to promote and market your family business. A conviction, your counsel contends would hinder your ability to travel.
46.	Your counsel also submitted a NZ visa application form which has a section where you are required to declare if you have been convicted of any offence in any country. I note however from your affidavit that you are a dual citizen of NZ so the form is of little assistance. As a dual citizen you will be able to travel to other countries such as Australia and USA without the need for a visa application. But I accept that in regards to other countries you may have to apply for a visa.
47.	I am aware however that the arrival cards for international countries including our own require all travellers to declare a conviction for an offence and that any wrong declaration is an offence.  
48.	I am also aware that there are local and international promotional and marketing incentives carried out by the Samoa Tourism Authority and Samoa Hotels Association to market tourism in Samoa given it is a major engine of economic growth here. Apart from this, privately operated establishments have invested heavily in the global marketing of their own businesses as well as Samoa as a tourist destination. The incentive programmes include trips to other destinations as part of the learning and exposure drive. 
49.	I accept Nelson, your expertise and line of work, allows you to contribute in exposing and marketing not only your family run business but Samoa as a tourist destination.
50.	At the end of the day Nelson, you are a young man of 24 years old at the prime of your life. Your family rely on you to take forward Sinalei Hotel to the next level and continue its success. I have no doubt that you can use your expertise and skills to its full potential to market your family business and our country as a tourist destination to assist with the development of tourism in Samoa. After all that is why you studied the degree you attained from university and the reason your parents sent you there.
51.	You have changed your plea to guilty thus saving the court some time and resources. It also confirms your remorse. This is the same remorse you showed when you took remedial actions to place the victim in the position she was in as required in Tort, before you caused the damage to her vehicle though the collision. You paid compensatory damages of $13,500 to the victim which is not an insignificant sum. The incident was unfortunate but I accept it was a momentary lapse of judgment on your part.
52.	You have at the end of the day been a person of good character. You have done your family proud by successfully completing your studies and returning to serve your bond at your family business.
53.	This has been a tremendous learning curb for you and one I am sure you will not repeat. Your counsel has quite correctly pointed out that you have seen firsthand the repercussions of your careless actions. You have had to appear in Court which in my view is a stigmatizing, humbling and eye opener experience. You have had to apply for leave to leave jurisdiction and learnt from there the restrictions to your movements that can be placed on you from committing an offence.
54.	There have been cases before this Court such as P v Rimoni where hindrance on travelling was put forth as a hardship out of all proportion to the gravity of the offending. But this was rejected by Judge now Justice Clarke. 
55.	But I am also aware of at least three other cases where travel was considered as a hindrance and therefore out of all proportion to the gravity of the offending resulting in discharge without conviction such as Police v Tualagi Paul, P v Afoa Tui Vaai and to some extent P v Viane. But each case turns on its own peculiar facts.
56.	I accept in your circumstances that your ability to travel to market Sinalei Resort will be gravely hindered from a conviction.  In Paul the learned  Judge Roma accepted that the defendant’s position as a hotel manager at Manumea Hotel would hinder her ability to travel to promote their establishment overseas and to continue her studies.
57.	I am satisfied there is a real and appreciable risk that hindrance of travel is a consequence that may well occur to you if a conviction is imposed.

Consequence of a Conviction
58.	Having considered the above, I am satisfied that the consequences of a conviction will be out of all proportion to the gravity of the offending.
59.	Accordingly I am of the view that the test under s69 SA is met and I will exercise the discretion under s70 to discharge you without conviction. 
60.	But this comes with a stern warning Nelson. You are lucky today but you may not be in the near future. Do not take for granted this opportunity I am giving you and the mercy of the Court.
61.	You must make use of your life and expertise constructively. You must also exercise more due care in the manner you drive and consider other road users. Most of all, never drive when you know you have consumed alcohol because the risk to your life and others would be far too high.
62.	The high toll of traffic incidents caused from such careless decisions has proven destructive and costly, causing loss of life, physical, emotional and psychological injuries to victims and damage to property. It must be deterred.

PENALTY 
63.	Upon the forthwith payment of $50 court costs and $50 prosecution costs you will be discharged without conviction. 

JUDGE ALALATOA ROSELLA VIANE PAPALII