IN THE DISTRICT COURT OF SAMOA
Police v Filipo [2018] WSDC 20 (26 November 2018)

Case name: 	Police v Filipo	
		
Citation: 	[2018] WSDC 20	
		
Decision date: 	26 November 2018	
		
Parties: 	POLICE (Informant) v TULI FILIPO (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Mata’utia Raymond Schuster	
		
On appeal from:		
		
Order:	I am satisfied that a discharge without conviction is appropriate given the circumstances of this matter. Accordingly, I sentence the defendant:

i.	For the charge of negligent driving causing injury -

a.	Discharge without conviction; and 
b.	Ordered to pay $300 for court costs before 4pm on the day sentence is handed down; and
c.	In default 14 days in prison

ii.	For the charge of failing to ascertain –
			
a.	Discharge without conviction; and 
b.	Ordered to pay $500 court costs before 4pm on the day sentence is handed down; and
c.	In default 28 days in prison

iii.	For the charge of failing to report –

a.	Discharge without conviction; and
b.	Ordered to pay $100 court costs before 4pm on the day sentence is handed down; and
c.	In default 28 days in prison

The sentences of monetary fine will be cumulative and subsequent imprisonment in default of payment shall be concurrent.	
		
Representation: 	Attorney General’s Office for the Informant
M. Lui for the Defendant 	
		
Catchwords: 	Negligent driving causing injury – failed to stop and ascertain – failed to report an accident – discharge without conviction – first offender – police officer – ordered to pay costs – discharged without conviction.	
		
Words and phrases:		
		
Legislation cited:	Criminal Procedure Act 1972, s. 104;
Police Service Act 2009, ss. 50-54; 51(B)(2); 53; 
Road Traffic Ordinance 1960 ss. 39(A); 40; 44(1); 44(2); 44(3); 44(5); 72(a)(2);
Sentencing Act 2016, ss. 69; 70.	
		
Cases cited:	Brunton v New Zealand Police [2012] NZHC 1197;
Chang v Attorney General [2018] WSCA 3;
DC (CA 47/13) v R [2013] NZCA 255;
Fisheries Inspector v Turner [1978] 2 NZLR 233;
H (CA680/11) v R [2012] NZCA 198;
Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005;
Oosterman v. Police [2007] DCR 131;
Police v Faauila [2007] WSSC 100;
Police v Fepuleai [2015] WSSC 105;
Police v Lauina [2017] WSDC 5;
Police v Papalii and Moalele [2011] WSSC 132;
Police v. Rimoni (unreported, 11 May 2016);
Police v Roberts [1991] 1 NZLR 2015;
Police v Viane [2016] WSDC 32;
Steward v New Zealand Police [2015] NZHC 165 (13 February 2015);
Zhang v Ministry of Economic Development (HC) Auckland CRI-2010-404-453 (17 March 2011).	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TULI FILIPO

Defendant

Representation:	Attorney General’s Office for the Informant
			M. Lui for the Defendant 

Date of submissions:	21 September 2018
Decision:		26 November 2018

Sentencing Decision of DCJ Schuster
Introduction 
1. 	The Defendant is charged with three (3) charges that at Apia on the 30th day of July 2017, the Defendant of Falefa: 
(i) 	Negligently drove a motor vehicle causing Injury to Tinialuga Lupo pursuant to section 39(A) of the Road Traffic Ordinance 1960 which carries a penalty of a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding five (5) years;
(ii) 	Failed to Stop and Ascertain following a traffic accident pursuant to section 44(1) and (3) of the Road Traffic Ordinance 1960 and upon conviction is liable to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 5 years; and
(iii) 	Failed to Report an Accident pursuant to section 44(2) and (5) and section 72a (2) of the Road Traffic Ordinance 1960 which carries a maximum penalty of 2 penalty units in the case of a first offender and in the case of a second or subsequent conviction to a fine not exceeding 4 penalty units or to imprisonment for a term not exceeding 3 months.
2. 	The Defendant was represented by counsel Ms Muriel Lui and on 13 March 2018 the Defendant entered a guilty plea to the charge of Failure to Report an Accident. For the remaining charges, the Defendant entered Not Guilty pleas and the matter was adjourned to the 30 May 2018 for hearing of the Negligent Driving Causing Injury and the second charge of Failure to Stop and Ascertain and for sentencing on the charge of failure to report.
3. 	On the 30th May 2018, prior to the commencing of the hearing, the Defendant through counsel sought leave of the court to vacate the not guilty pleas and substitute with a plea of guilty to the two charges of negligent driving causing injury and failure to ascertain. The matter was then adjourned to the 27th July 2018 for the Prosecution to provide a summary of facts, a pre-sentence report from the Probation Office and for sentencing.
4. 	On the 27th July 2018 before Judge Fepulea’i A. Roma, the defendant disputed paragraphs 4, 6 and 10 of the summary of facts and the matter was adjourned to the 7th August 2018 for the prosecution and defence counsel to discuss the disputed paragraphs. On the 7th of August 2018, prosecution sought an adjournment to file an amended summary of facts and the final adjournment was entered by my brother Judge to the 14th August 2018.
5. 	On 26th July 2018 Ms Lui filed a Sentencing Memorandum seeking a discharge without conviction on all three charges. On the 14th August 2018, the Defendant through counsel accepted the Amended Summary of Facts and the matter was adjourned on application by Ms Lui to 14th September 2018 for sentencing.
6. 	On 14th September 2018, Ms Lui was given opportunity to provide detailed submissions and proof of evidence of consequences of a conviction on her client. The matter was adjourned to 21st September 2018 for sentencing. On the 21 September 2018, judgment was reserved.
Factual background
7. 	The Defendant is a 29 years old male from Falefa and employed as a Police Officer with the Ministry of Police since 2011. He is single and the eldest of his siblings.  The Victim is a 31 year old male of Aai o Niue.
8. 	The amended summary of facts admitted by the defendant state that on the 30th July 2017 at about 12am, the defendant was driving a Toyota Harrier vehicle owned by Juliana Rentals on Main Beach Road. They had been drinking at the RSA club and were on their way home to the village of Vaiala driving westward.
9. 	The Defendant was speeding as the vehicle approached the traffic lights in front of the Police Station. 
10. 	The victim and his friends were at the same time in front of the Police Station waiting to cross over to the seawall side of the road. As the victim was halfway across the road, the defendant’s car swerved to avoid the victim as the victim instinctively tried to get out of its way but unfortunately was heading towards the same direction where the vehicle was swerving. As a result, the defendants vehicle hit the victim and the victim was thrown off the road and sustained injuries such as a peeling skin on his left leg, multiple scratches to the face and bodily pain.
11. 	The Defendant continued to drive away from the scene as the victim’s friends carried the victim to the Police Station to get help for the victim. The Fire Emergency vehicle took the victim to the hospital.
12. 	The Defendant was taken to the Police on 16 January 2018 where he was cautioned of the offence and informed of the charges against him. This was about 5 ½ months after the incident.
Aggravating features of the offending
13. 	The prosecution state in their memorandum on sentencing that there are five aggravating factors that the court should take into account: (i) level of negligence; (ii) risk to life; (iii) duty as a driver and a police officer; (iv) injuries of the victim; and (v) seriousness of the offence.
14. 	The defendant accepts from the summary of facts that he was speeding prior to the accident and had consumed alcohol. The offending commenced when the defendant after consuming alcohol at RSA got behind the wheel of the motor vehicle and at some point prior to and during the accident drove at speed. There is no evidence from the summary of facts as to the level of intoxication and how fast the defendant was driving but speeding suggests that he was driving more than the allowed speed limit on Main Beach Road. There is no evidence from the summary of facts as to what the fixed regulatory speed limit on Main Beach Road was at the time of the accident to determine how fast the defendant was travelling from the maximum speed limit allowable.
15. 	It is a difficult but a great responsibility for a person to drive a motor vehicle on a public road even with the absence of any physical impediments such as fatigue, intoxication, momentary lapse of attention, some material fault in the vehicle, etc. However, when a person gets behind the steering wheel of a motor vehicle knowing that he/she possesses any one of the above impediments to himself/herself or the vehicle, they undertake a course of action that is without care and a high risk of a potential vehicle accident. Having consumed alcohol and driving a motor vehicle above the speed limit allowable in this particular part of the road equals a dangerous situation. As a driver and a Police officer duty bound to up-hold the law, it was a dangerous situation that he should have recognised and appreciated.
16. 	There is no agreement nor evidence from the summary of facts as to whether the traffic lights indicated green for the defendant to proceed. The probation reports from the defendant that the green light was on for the defendant to proceed through the lights. The prosecution did not dispute this statement and I will not have regard detrimental to the defendant as to that particular issue. Similarly, there is no evidence from the summary of facts agreed by the defendant that the victim crossed the road following the coming into light of the pedestrian crossing indicator. The probation report again states that the victim suddenly crossed the path of the defendant’s vehicle when the green light was still showing for the defendant to proceed. The prosecution did not oppose the defendant’s statement to probation. These are matters that go towards the determination of the seriousness and nature of the offending and the gravity of the offence.
17. 	However, even if the victim and his friends contributed to the accident by crossing the road without regard to the guidance of the traffic lights, this does not exonerate the defendant’s duty and obligation as a motor vehicle operator to be aware of crossing pedestrians. It appears that the defendant was either not aware of the crossing victim and his friends or that he did notice the victim and his friends but paid little regard to their situation until it was too late. It did not help with the defendant having consumed alcohol and speeding. Nevertheless, with regard to sentencing, I am required to consider the victims own actions whether or not he contributed to the circumstances of the accident.
18. 	The prosecution suggests that the level of negligence and risk to life is high on the defendant’s part. Such a holistic view would be reasonable for the Court to accept with offences of this nature. But in the absence of evidence as to what the speed limit was on this part of the road, how fast the defendant was speeding and the level of intoxication of the defendant, I am unable to agree with the prosecutions suggestion. I can only draw the inference in favour of the defendant that he was speeding but not excessively beyond the speed limit and the injuries of the defendant further shows that they were not serious. In saying that, the court cannot disregard the evidence that the victim sustained injuries and the injuries are of itself an aggravating feature of the offending whether serious or not.
19. 	The prosecution further submits in their written submissions in response to the application for discharge without conviction dated 21 September 2018 that the penalty imposed in relation to the charges suggests the seriousness of the offending as intended by Parliament. The Court accepts that premise as a starting point. However, the Court must then attend to the exercise of determining as to whether the particular offending and circumstances fall within the low, medium or high end of seriousness as each case must be determined on its own facts and merits.
20. 	The prosecution submits that a discharge without conviction “… are granted only in exceptional circumstances”. As to what circumstances fall under the head of “exceptional” is not elaborated but for the prosecutions suggestion that it must be a case where the gravity of the offending is perhaps considered at the low end. Even if that were so, it must be reminded that section 69 of the Sentencing Act 2016 is a discretionary application by the court after consideration of the relevant circumstances. This will be elaborated on further in this ruling.
21. 	The prosecution further submits that there is no real evidence before the court in support of the defendant’s contention that the consequences are out of all proportion to the gravity of the offending. The prosecution submit that the toll on the defendant and his family are expected consequences that arise from the defendants offending. The prosecution particularly refer to the defendants actions of consuming alcohol and driving a motor vehicle. 
22. 	However, it is not an offence to consume alcohol and subsequently drive a motor vehicle. The circumstance only becomes an offence when the level of intoxication exceeds the legal limit and at the same time being in charge of a motor vehicle (section 40 Road Traffic Ordinance 1960). That circumstance does not feature as a matter of evidence in this matter nor a charge laid. As to this offending and charges being a toll on the defendant and his family, the Court cannot disregard the fact that the defendant’s family are innocent victims of the defendants offending. This is particularly so in relation to their source of income and support. This fact so far as the material submitted for sentencing is concerned is not disputed by the prosecution.
23. 	The prosecution under the head of “Immigration status” relying on Zhang v Ministry of Economic Development (HC) Auckland CRI-2010-404-453 (17 March 2011) submitted that the court should not usurp the role of the immigration authorities or a professional body or a particular employer to decide the significance of a particular conviction (Steward v New Zealand Police [2015] NZHC 165 (13 February 2015).
24. 	Notwithstanding the fact that the New Zealand Road Traffic legislation and provisions may be similar and in many instances identical in nature with Samoa, the social, economic and political fabric of the Samoan society are vastly different from that of New Zealand. The New Zealand authorities have only persuasive effect and may be a helpful guide to the interpretation and application of laws in Samoa. However, the Samoan Courts are required primarily to determine the circumstances of each case on its own merit and have regard to the local customs, practices and attitudes as generally known and practised by the Samoan people (Justice Nelson in Police v Faauila [2007] WSSC 100 (9 July 2007)). It is with that in mind that I am required to consider Zhang and Steward as to whether the point contended by the prosecution should be applied in this case.
25. 	The prosecution further state that the defendant has not provided any real evidence to show that a conviction will affect his employment by a termination or if continued to work, he will miss out on future promotions.
26. 	The prosecution further suggest that if a discharge is granted, this is tantamount to making a public statement that the law does not apply to the defendant above all else (above the law). Lest the prosecution have overlooked the fact that the defendant has already pleaded guilty to the charges accepting his responsibility in the offending as well as the consequences of any sentence the court directs appropriate to the circumstances of the case, this submission is without foundation. 
27. 	The role of the court when faced with an application for discharge without conviction must consider whether the defendant would be more appropriately dealt with under sections 69 and 70 of the Sentencing Act 2016. The Court must have regard for a sentence of discharge without conviction in every matter that comes up for sentence unless by any enactment applicable to the offence the court is required to impose a minimum sentence. There is no such minimum sentence imposed in the three charges the defendant has pleaded guilty to. The suggestion therefore of the likelihood of special treatment towards the defendant if the discretion is invoked under section 70  is without proper thought, consideration and foundation and will discuss it no further.
28. 	The prosecution submits in their sentencing memorandum that section 70 of the Sentencing Act not be invoked given the aggravating factors involved referred in paragraphs 13 – 19 above. The prosecution seek for the defendant to be convicted and ordered to pay $600 to the victim, Court costs of $600, prosecution costs of $600 and for the defendants to be disqualified from holding a drivers licence for a term of 12 months. 
29. 	Senior Sergeant Stanley as prosecutor verbally submitted from the bar table of instances where police officers were previously convicted of offences but have continued to be employed in the Ministry subsequent to their conviction. The opportunity was provided for the prosecution to submit these instances to assist the court but no such information was received as to the type of offences these instances relate to as well as to any conditions, if any, applied to these convicted police officers employment upon being reinstated.
About the defendant and mitigating factors
30. 	The defendant is the eldest of a family of seven from the village of Falefa. His father had passed away and they were raised by his mother’s sister, Melania Filipo. The defendant attended the Falefa Secondary School before completing his education at Leulumoega College. He then attended the National University of Samoa’s School of Technical Institute for two years before entering the Police force in 2011. 
31. 	Melania told probation that the defendant is her right hand helping her with looking after the family and contributing to family faalavelave’s. A letter from the defendants Minister of Religion at the EFKS Falefa dated 20 June 2018 speaks of the defendant as trustworthy, obedient and well-mannered person who attends diligently to his duties and chores as a member of the Congregation. 
32. 	The Defendant’s village mayor Mr Purcell in his letter dated 4 June 2018 speaks of the defendant as a person of good character, participates in the village affairs and had never been involved in a matter requiring the sanction of the village council. Mr Purcell continues that the defendant is cooperative and attends the church youth and choir. Much of the same reference to the defendant’s good character is echoed in the letter from the Falefa Primary School Principal and a character letter from Police Inspector Aumua as to the defendant’s diligence when attending to his Police duties.
33. 	The victim himself also attached a letter dated 29 June 2018 asking for the matter to be withdrawn given that there had already been reconciliation between himself and the defendant as well as restitution of about $2,000 paid to the victim. The victim states that the incident occurred on a Saturday but the defendant came and saw him the following Monday and apologised for the incident and the victim then forgave the defendant.
34. 	The defendant has no prior convictions of similar or any other offending. He had pleaded guilty to the charge of failure to report on the first available opportunity. It was only on the date of hearing that the defendant vacated his not guilty pleas and entered a plea of guilty to the negligent driving causing injury and failure to ascertain. Despite the delay, the guilty pleas have saved the cost, time of the court, prosecution and witnesses to attend a full hearing.
35. 	The Probation Service recommend a fine as opposed to a custodial sentence and for the defendant to attend the Alcohol Treatment program for seven (7) weeks as supervised by the Probation Service.
Discharge without conviction
36. 	The Defendant through counsel asks the court for a discharge without conviction. Section 69 and 70 of the Sentencing Act 2016 provides:
	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. 
37. 	The threshold legal test as to the exercise of the courts discretion in an application for a discharge without conviction has been discussed in previous cases under section 104 of the Criminal Procedure Act 1972 (“the CPA 1972”). In Police v Papalii and Moalele [2011] WSSC 132, His Honour Chief Justice Sapolu adopted the three-step approach taken from Justice Richardson’s decision in Fisheries Inspector v Turner [1978] 2 NZLR 233 (and affirmed in Police v Roberts [1991] 1 NZLR 2015): 
	“In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.”
38. 	The first step requires the court to consider the gravity of the offending. The second step involves a consideration by the court of any direct and indirect consequences of a conviction on the offender. The final step requires the court to consider whether the consequences are out of all proportion to the gravity of the offending. 
39. 	Sections 69 and 70 of the Sentencing Act 2016 now repeals section 104 of the CPA 1972. However, notwithstanding the appealed section 104 of the CPA 1972 and as enunciated by DCJ Papalii in paragraph 46 of Her Honours judgment in Police v Lauina [2017] WSDC 5 (12 May 2017), section 69 and 70 of the Sentencing Act does not create a new threshold for the exercise of the discretion to discharge without conviction from the approach adopted by Sapolu CJ in Papalii v Moalele. I am indebted to the thorough analysis undertaken by DCJ Papalii on this point in Police v Lauina.
40. 	Police v Lauina in paragraph 55 of Her Honour’s decision referred to DC (CA 47/13) v R [2013] NZCA 255 where the court of Appeal held:
	“The inquiry is two staged. At the first stage it is necessary to consider the gravity of the offence, the direct and indirect consequences of the conviction and whether the consequences are out of all proportion to the gravity of the offence. In a composite way, this is the jurisdictional test. The second stage of assessing what is a residual discretion is only engaged if that jurisdiction is established. 
41. 	In H (CA680/11) v R [2012] NZCA 198 again cited in Pol v Lauina stated that: 
	“The proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment”.
42. 	In Chang v Attorney General [2018] WSCA 3 (13 April 2018), the Court of Appeal stated:
	“65. Two steps are involved. The first is that in terms of s 70 a Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. 
	……………..
	71.  We turn to the overriding discretion. …….”
43. 	What is now clear is that the Court must first undertake a fact finding exercise to be satisfied that the disproportionality test is met under section 70 of the CPA 1972 before it can invoke the discretion under section 69. However, even if the test is met, it is open to the Court to exercise the discretion or decline to exercise its discretion to grant a discharge (for example, if there is a need for general deterrence or a history of persistent offending which would make applying the discretion inappropriate) (see Adam’s on Criminal Law – Sentencing: Updated Abstract 10/11/14 (Brookers and Thompson)).
Relevant circumstances
I. Negligent Driving Causing Injury
44. 	In Fisheries Inspector v Turner cited in paragraph 25 above stated that the Court:
	“… must refer to all the circumstances that are relevant in the particular case before the Court”.  
45. 	In Police v Viane [2016] WSDC 32 (15 July 2016), His Honour DCJ Fepulea’i A Roma stated in paragraphs 18 – 19 of His Honour’s judgment that in order for the court to consider the disproportionality test, 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.”
46. 	In Police v Fepuleai [2015] WSSC 105 (21 September 2015), Justice Vaai was faced with an application for a discharge without conviction prior to the repeal of section 104 of the CPA 1972 after a defended hearing of a 58 years old mother and grandmother for actual bodily harm and armed with a dangerous weapon. His Honour cited Fisheries v Turner as applied in Police v Papalii and Moalele.  
47. 	In invoking the discretion, Justice Vaai considered and weighed the relevant circumstances to be applied to a discharge without conviction application stated in paragraph 12, 13 and 15 of His Honour’s ruling:
	12. The injuries suffered by the victim in this case although they cannot be described as trifling, they cannot be described as serious either.
	13. The whole incident could have been averted if the defendant a 58 year old mother and grandmother had exercised maturity and common sense instead of succumbing to the accusation by her drunken, supposedly mature son who had just punched his mother in law in the face. She and four other adults from her family did not go to the complainant’s house to pack clothes and other personal belongings of her son. She could have waited until day time. But she was so overcome by anger. She was provoked. As a grandmother and mother she has children, grandchildren, and relatives living in Samoa, New Zealand and Australia which she would like to visit on occasions from the U-S-A where she is residing. A conviction to her name may hinder and make difficult her wishes to travel. 
	………………
	15. The embarrassment the defendant has undoubtedly suffered as a result of appearing before this Court on several occasions to answer and defend the charges is in the Court’s view a punishment in itself. 
48. 	In Police v Chang, the Court of Appeal considered the following consequences to be weighed with the gravity of the offences:
	“…………..
	68. However, Mr Leung Wai went on to point to the following:
	a.	In August 2016 the Police saw fit to arrest the appellant at her place of work rather than serve the summons that would be normal for traffic offences of this kind. This reflects no credit on the Police and added unnecessarily to the appellant’s public humiliation.
	b. 	Once arrested the appellant was suspended from her position as Director of Public Prosecutions. She remained suspended until her resignation in March 2017. 
	c.	The appellant and her family suffered humiliation and material hardship as a result of the prosecution and its attendant publicity. 
	d.	Proceedings have now been on foot for a total of 20 months with the inevitable stress and uncertainty which this caused to the appellant and her family.
	e.	If left in place, the conviction would cast a permanent and public shadow over the appellant and might have unforeseen repercussions for her career, for her travel and for similar situations in the future. 
	69.	Those consequences are to be compared with the gravity of the offence. The accident was due to a moment’s inadvertence. Without in any way condoning the error made, split second misjudgements of this kind are the sort of error that many drivers may make. In this case the appellant was unlucky enough to make that mistake when approaching a bus with defective brakes. Instead of slowing or stopping, as an oncoming vehicle could normally be expected to do, the bus was unable to stop and ploughed into the side of the appellant’s car. The appellant should never have created that possibility in the first place. But in terms of culpability, this was at the lowest end of the scale for this type of offence. And fortunately the injury to Ms Teueli was of short duration. 
	70.	For those reasons we are satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.”
49. 	As for the second step in considering the overriding discretion, the Court of Appeal went on to say:
	71. We turn to the overriding discretion. Mr Leung Wai drew attention to the appellant’s good character, her work for charities, and the outstanding contribution she made to the Samoan community through her work as a civil servant. Added to the factors already discussed we are satisfied that in this case there should be a discharge without conviction. 
72. Lest it be thought that a discharge will readily be granted for a conviction of this kind, we emphasise that this is very much an exceptional case. It has nothing to do with the appellant’s profession or her former position as a civil servant. It has to do with an unfortunate and unusual combination. The combination is the moment’s inadvertence on the part of the appellant, the defective brakes on the other vehicle, and the disproportionate consequences for the appellant. That combination will be rare indeed. 
Circumstances of the defendant
50. 	Ms Lui for the defendant submits:
(i) 	the defendant is a first offender
(ii) 	the defendant is an active and committed police officer having served for 8 years
(iii) 	The defendant is an active and reliable member of his village community
(iv) 	The defendant is the sole provider for his family
(v) 	The matter has taken a personal toll on the defendant and his family
(vi) 	The victim was not seriously injured
(vii) 	The defendant is remorseful and has apologised to the victim and his family such apology has been accepted
(viii) 	The defendant has assisted the victim in the victims medical and transportation costs, restitution of SAT$2000 
(ix) 	The offending was out of character
(x) 	A conviction will mean the end of a promising career
51. 	The probation report indicates that the defendant is under suspension pending the outcome of this matter. Whether the defendant is suspended without pay, suspended with pay or paid a portion of his periodic wages is information not available to the court. Paragraph 10 of Ms Lui’s submissions state that the consequences of a conviction is that the defendant will not only lose his job but his family and dependents will lose their main source of income the defendant being the sole breadwinner.
52. 	Ms Lui further states that the defendant will find it difficult to obtain other employment with a conviction. Ms Lui was referred to the Police Service Act 2009 as to whether the Police Commissioner has power to terminate members of the Police service whether or not they are convicted of a similar charge or charges against them. No further submission was made as to that point but it is important to set out the relevant provision for completeness.
53. 	Section 50 - 54 of the Police Service Act 2009 (hereinafter referred to as the “PSA 2009”) 	provide for a process where a sworn member is charged with a breach of duty. Section 50(1)(b) states that commission of a criminal offence by a sworn member is a breach of duty. The process, however, though empowers the Commissioner of Police to terminate the sworn member under section 51(B)(2), any sworn member may appeal termination to the Board of Appeal under section 53. It is the Board of Appeal therefore that has the final determination should a sworn member be dissatisfied with the punishment imposed by the Commissioner. Section 57 applies to “other members” of the Service not being sworn members and therefore not relevant for consideration.
54. 	It is clear from sections 50 - 54 that there is a process to protect the interests of sworn members such as the defendant. Ms Lui however goes further to suggest that even if the defendant not being imposed with an imprisonment term continues his career with a conviction, it will affect his chances of future promotions to higher rank in the Police service.
Discussion
55. 	In considering the consequences outlined by Ms Lui above as well as having regard to the prosecutions submission on sentencing principles relating to accountability of the offender, interests of the victim, denounce and deter the offenders conduct, protection of the community and for rehabilitation and reintegration of the defendant, the Court must now compare these consequences with the gravity of the offending. 
56. 	The accident, based on the evidence available to the Court, appears to be as a result of a momentary lapse of attention on the part of the defendant. It did not help with the victim having crossed the road at the lights without regard to the pedestrian crossing light discussed in paragraph 16 above. In saying that, let it be clear that even a momentary lapse of attention constitutes a lapse of degree of care and attention which an ordinary and prudent driver would exercise in the circumstance. 
57. 	The other issue to be determined is whether the defendant’s alcohol consumption and the speed the vehicle was travelling were contributing factors to the defendant’s momentary lapse of attention. The Prosecution suggest that intoxication and speeding were also factors that contributed to the defendant’s negligence. I am unable to agree with the Prosecutions suggestion given that there is no agreed evidence in the summary of facts that support the contention as to the level of the defendant’s intoxication having impaired his ability to be in control of the motor vehicle. There is also no evidence that the defendant was travelling at such excessive speed as to have lost control of the motor vehicle causing the accident and injury to the victim. 
58. 	I can only draw inference in favour of the defendant considering there is no evidence from the prosecution that the defendant had been drinking but not as to exceed the legal limit allowable by law. Furthermore, that the defendant was speeding but not in an excessive manner over the allowable speed limit on Main Beach Road at the area where the accident occurred. 
59. 	I also find that the injuries suffered by the victim were trifling and not serious. This would not support the prosecutions suggestion that the defendant was speeding excessively. The Defendant had time and was able to manoeuvre the said vehicle in time to avoid a head on collision with the victim. The probation report refers to a statement by the defendant that upon swerving the vehicle away from the victim, he was unable to avoid the victim completely and the vehicle side mirror collided with the victim. The prosecution did not dispute this statement. Ms Lui submitted upon clarification sought by the Court in paragraph 7 of the summary of facts that the defendant was swerving to avoid the victim. Sergeant Stanley for the prosecution accepted the defendant’s version on this point. In the circumstances, I estimate that the gravity of the offending and degree of culpability is at the lower end.
60. 	In Chang v The Attorney General, the Court of Appeal considered the following consequences of a conviction to the appellant: public humiliation of her arrest, suspension from her position as Director of Public Prosecution, along with her family suffered material hardship and humiliation from its publicity, the lengthy period of 20 months the matter had remained undetermined, cast a public shadow over the appellants integrity and career, her ability to travel freely and for similar situations in the future.
61. 	In Police v Fepuleai, Justice Vaai considered the effect of travel on the defendant that a conviction to her name may hinder and make difficult her wishes to travel as a grandmother and mother to visit her family in New Zealand, Australia and Samoa from America where she resides. His Honour went further and stated that it was a punishment in itself that the defendant had to endure several appearances in court to answer the charges.
62. 	The prosecution rely on the New Zealand position in Zhang and Brunton v New Zealand Police [2012] NZHC 1197 and Oosterman v. Police [2007] DCR 131 applied in Police v. Rimoni (unreported, 11 May 2016) and cited in Pol v Viane requiring that:
	“… 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.”
63. 	Inclusive of the matters I have referred to in paragraph 24 above, it is with respect that I would differ from the consideration undertaken by the New Zealand Courts in Zhang, Brunton and Oosterman and applied in Police v Rimoni. It is the Courts responsibility to consider the circumstances to arrive at what the Court would find as the appropriate penalty for the offences the defendant has entered a guilty plea. The Court has to be robust and apply its knowledge and experience of human nature, the local conditions, behaviours and attitudes to the circumstances of each case. Samoa is a much smaller society of about 185,000 people compared to New Zealand which has a population of over three million. The uniqueness and small size of the Samoan society means that information travels at a rapid pace and more likely than not many Samoan people know or would be familiar with the identify of defendants being the subject of the information concerned. Therefore, immediate and continuous public humiliation through media exposure is very real in Samoa.
64. 	The defendant is primarily concerned that a conviction will jeopardise his current employment with the Ministry of Police. The defendant’s secondary concern is if he were terminated from his employment upon conviction, the brand of a criminally convicted person would mean that he would find it difficult to find another job. Alternatively, the defendant contends that even if he were to retain his employment upon a conviction, he would be ruled out of any opportunities for higher rank as is the nature of the Police employment structure. 
65. 	It is a natural human expectation particularly in the service such as the Ministry of Police that a member aspires to move up in rank as an acknowledgment of personal development, maturity, experience as well as for higher salary.  It is a Ministry that follows a strict and high code of duty, responsibility and honour. They must follow and attend to lawful orders given that they must enforce and uphold the rule of law according to the sworn oath that each officer swears before a judge when entering into the force. 
66. 	With this background, it goes without saying that a Police Officer is expected, whether reasonable or not, to uphold an unblemished personal record. The Court drawing such local knowledge and experience with human nature is entitled to conclude that it is more likely than not that the Commissioner of Police is within his powers to terminate the service of the defendant upon a conviction. But that is not the end of the matter as stated in paragraph 52 above. Whatever the outcome is not for this Court to speculate but only to consider the degree of possibility and likelihood of a termination following a conviction. I would place this possibility in the medium to high range.
67. 	The defendant has not submitted that a conviction will hinder and make difficult any future travel. The prosecution have referred to this in their submissions relying on Zhang. It is therefore necessary to clarify and distinguish the New Zealand situation from Samoa. Police v Rimoni citing the two New Zealand cases of Brunton and Oosterman state that real evidence is required as opposed to speculative possibilities of difficulties with future travel.
68. 	An ordinary Samoan in possession of a Samoan passport would firstly be required to obtain a visa prior to travel mainly to countries most visited by Samoans like New Zealand, Australia and the United States. That is the first difficulty encountered by a Samoan in relation to international travel. It is common knowledge that visa applications require the applicant to declare whether they have been convicted of any offence or offences. This is the second difficulty that will be encountered by a Samoan person with a criminal conviction who desires to travel overseas. The existence of such a requirement for visa applications and evidence of a criminal conviction would create a high possibility that a visa would not be granted.
69. 	Comparatively, a New Zealand person holding a New Zealand passport does not encounter the same difficulties. The New Zealand passport holder allows for visa free entry in many countries of the world. The New Zealand situation cannot be compared to Samoa. I accept that the court cannot speculate as to whether the immigration authorities will grant or reject the application for entry of a person with a criminal conviction. But that is beside the point. The issue is whether the defendant holding a Samoan passport is more likely to encounter difficulties in future travel if he/she were convicted of a criminal offence. I believe the answer is yes and for the same reason Justice Vaai considered that it was a hinder and difficulty in Police v Fepuleai. This, in my view, is real evidence as to the consequence of such matters in Samoa (refer Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]);
70. 	For those reasons I am satisfied that the direct and indirect consequences of a conviction of negligent driving causing injury would be out of all proportion to the gravity of the offence.
71. 	The remaining question is whether the court should exercise the discretion to discharge without conviction? Ms Lui submitted as to the defendant’s previous good character and his unblemished service as a police officer for 8 years. She further pointed to the defendant’s commitment and value to the service of his village and church. I have been referred by the prosecution in their memorandum to eight (8) cases involving just negligent driving causing injury. The prosecution have placed much emphasis on the fact that the defendant was a police officer. However, there were no cases involving police officers. The defendant was not on duty but was exercising and enjoying his freedom and rights as a citizen of this country to move freely just like any other person. In fairness, the court must first assess the defendant’s personal circumstances as an individual in the offending before considering whether his profession as a police officer is a factor for sentence.
72. 	I am required to have regard to the sentencing principles outlined in section 5 and 6 of the Sentencing Act 2016. I am also required to take into consideration relevant matters that I must consider before sentencing. Notwithstanding the general prevalence of this type of offending in the community and having arrived at the view that this offending was at the low end of the scale for this type of offence, I am satisfied that this charge would be more appropriately dealt with by a discharge without conviction.
II. Failed to Stop and Ascertain
73. 	The defendant initially pleaded not guilty to this charge and vacated his not guilty plea on the date of hearing. There is no evidence in the amended summary of facts agreed by the defendant to show as to the reasons for failing to stop and ascertain whether any person has been injured and to render practical assistance to the injured person including transportation of the person to the hospital. 
74. 	The defendant in his interview for the pre-sentence report stated that it was his fear and uncertainty that caused him to continue without stopping. Ms Lui suggests that the defendant was fearful for his safety and for his job as a police officer being involved in this accident.
75. 	In Chang v Attorney General, the Court of Appeal stated in paragraph 57 and 60:
	57. 	As with the respondent and the Supreme Court Judge, we think that s 44(1) imposes three obligations on a driver where an accident occurs to a person arising directly or indirectly from the driver’s use of a motor vehicle, namely:
	To stop.
	To ascertain whether a person has been injured; and
	c. To render all practical assistance to the injured person including transportation to hospital where appropriate.
	…………………..
	60.	In our view the duration of the stop required by the Act must be measured by the time which is reasonably necessary in the particular circumstances to enable proper inquiry to be made as to whether anyone is injured and requiring assistance.[7] The requirement is to be interpreted in such a way as to fulfil the purpose of ensuring that persons who have been injured in an accident arising from the driving of a motor vehicle will receive assistance and, where appropriate, taken to hospital. All the circumstances must be closely considered to see whether that purpose has been fulfilled in the particular case. 
76. 	It is clear from the agreed set of facts that the defendant did not stop, did not ascertain whether a person was injured (despite the fact the defendant was aware that his vehicle had just collided with a crossing pedestrian) and did not render assistance to an injured person. The issue therefore is whether I am satisfied the defendant invoking section 44(6) of the Road Traffic Ordinance 1960 had reasonable grounds to apprehend violence from bystanders if he had stopped.
77. 	The agreed set of facts state that the victim was with friends but it does not state how many and whether they were intoxicated at that hour of the morning around 12am. The defendant was also accompanied in the vehicle by three of his friends after a night out at the RSA night club. However, only the defendant is noted in the amended summary of facts to have been drinking.
78. 	On those facts considering the circumstances and applying my experience of human nature in the Samoan society, I am not satisfied that the defendant did not stop because he was fearful in apprehension of violence from bystanders. The defendant was not alone. The worst-case scenario if the defendant did stop was the possibility of an all-out brawl as a result of the accident particularly if alcohol was consumed by both camps up to the time of the incident. I accept that the defendant may have had a flash vision of his police career in jeopardy because of the accident. However, that is not relevant on this particular point.
79. 	The circumstances of this particular charge are:
(i) 	The defendant did not stop and ascertain immediately after the incident.
(ii) 	The incident happened after 12am involving the defendant’s vehicle and the victim only   negating the possibility of a domino effect of subsequent accidents with other vehicular road users
(iii) 	A head on impact was avoided by the quick actions of the defendant swerving to avoid the victim but unfortunately the victim reacted in the same direction the defendant was swerving coming into contact with the vehicles side mirror avoiding serious injury or possibly death
(iv) 	The defendant was able to do evasive manourvre as he was not travelling at an excessive speed
(v) 	The accident occurred on Main Beach Road in front of the main Police Station and Fire Services when the road was not busy and the victim was fortunate to have his friends to render assistance 
80. 	In applying the interpretation and purpose of section 44(1) and (6) as outlined in Chang v Attorney General to the facts relating to this charge, the above circumstances do not exonerate the actions of the defendant in breach of this offence. However, the circumstances of the incident as a whole notwithstanding the three charges were fortunate for the defendant and the victim that it did not result in more severe consequences. Applying a wholistic approach to sentencing of this matter, the fortunate circumstances minimise the culpability of the defendant as to this offending and place it in the medium range of the gravity of offences. However, I am of the opinion notwithstanding the medium range of the gravity and culpability of the defendant in the offending, the direct and indirect consequences discussed earlier of a conviction to the defendant would be out of all proportion to the gravity of the offence. Accordingly, a discharge without conviction would be appropriate in relation to this charge.
III. Fail to Report an Accident
81. 	The defendant entered a guilty plea in the first instance in relation to this charge. However, I rely on the facts outlined as to the charge of failure to ascertain and apply the same approach as the Court of Appeal in Chang v Attorney General. The purpose of the provision is to ensure that drivers of motor vehicles are encouraged and must comply with their duty to report accidents with the intent that it will, inter alia, save lives. 
82. 	There is no evidence from the defendant to show that he reported the accident as soon as reasonably practical or no later than 24 hours after the accident (section 44(2) of the Road Traffic Ordinance 1960). I appreciate that human nature dictates our emotions and actions when accidents occur and our own self-interest becomes the primary concern. Ms Lui in her submissions referred to the defendant’s fear for his position in the Police service and what the consequences may be at the time of the accident which caused him not to report. It is fortunate for the defendant that the circumstances of the accident referred in paragraph 77 above immediately brought the matter to the attention of the Police except for the identity of the driver. 
83. 	Respectfully, the defendants primary concern is not the test the defendant must overcome but that he must show that he with all reasonable expedition reported the accident as provided in subsection (2) of section 44. The prosecution’s submission on sentencing emphasize the charge of negligent driving causing injury perhaps in their view that being the most serious of the three charges. My decision above suggests the reverse. 
84. 	However, the charge of failure to report is the least of the three charges in terms of severity considering the penalty to be imposed under section 72A of “… first offence to a fine not exceeding 2 penalty units and in the case of a second or subsequent conviction to a fine not exceeding 4 penalty units or to imprisonment for a term not exceeding 3 months”.  Taking into account the circumstances of this case particularly in paragraph 77 and 78 above, I would apply the same consideration in relation to this charge. I am left with the conclusion that the gravity and culpability of the defendant in relation to this offending is on the medium degree. I have decided to exercise the discretion in section 69 of the Sentencing Act as I am of the view that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence. Accordingly, the defendant would be more appropriately dealt with by a discharge without conviction in relation to this charge.
Sentence
85. 	I am satisfied that a discharge without conviction is appropriate given the circumstances of this matter. Accordingly, I sentence the defendant:
(i) 	For the charge of negligent driving causing injury -
(a) 	Discharge without conviction; and 
(b) 	Ordered to pay $300 for court costs before 4pm on the day sentence is handed down; and
(c) 	In default 14 days in prison
(ii) 	For the charge of failing to ascertain –
(a) 	Discharge without conviction; and 
(b) 	Ordered to pay $500 court costs before 4pm on the day sentence is handed down; and
(c) 	In default 28 days in prison
(iii) 	For the charge of failing to report –
(a) 	Discharge without conviction; and
(b) 	Ordered to pay $100 court costs before 4pm on the day sentence is handed down; and
(c) 	In default 28 days in prison
86. 	The sentences of monetary fine will be cumulative and subsequent imprisonment in default of payment shall be concurrent.

DCJ SCHUSTER