IN THE DISTRICT COURT OF SAMOA
Police v Paulo [2022] WSDC 1

Case name: 	Police v Paulo	
		
Citation: 	[2022] WSDC 1	
		
Decision date: 	27 June 2022	
		
Parties: 	POLICE v FALETIUTE RAYMOND PAULO male of Elise-fou	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Matautia Raymond Schuster	
		
On appeal from:		
		
Order:	I therefore discharge the accused without conviction pursuant to section 69 of the Sentencing Act 2016.	
		
Representation: 	Ms Lucymaria Tiutiuatoa Sio for Prosecution	

Ms Leone Su’a-Mailo for Accused	

		
Catchwords: 	indecent act on a young person – histories of the defendant and the victim – aggravating and mitigating factors –gravity of the offending –discharge without conviction	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s59[3] 
Sentencing Act 2016 ss. 69, 70

Cases cited:	Police v Auvae [2020] WSDC 5, Atoa-Saaga DCJ;
Police v Faamoe [2017] WSSC 53 (24 April 	2017);
Police v Gasolo Fale;
Police v Iakopo [2017] WSSC 162 (22 November 2017), Tuala-Warren J;
Police v Laufiso Vaioalii (27 September 2017) WSSC Unreported, Tuala-Warren J;
Police v Matamua [2017] WSSC 142 (8 November 2017), Tuala-Warren J;
Police v Oto [2009] WSSC 53 (8 May 2009), Nelson J 
Police v Petelo Samaila (10 August 2021) WSDC Unreported;	
	Police v Taito [2016] WSSC 184 (15 September 2016), Tuala-Warren J;
Police v Viliamu [2019] WSSC 86 (25 October 2019), Tuatagaloa J;
Seymour v R [2021] NZHC 2322
	
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE 
Informant

A N D

FALETIUTE RAYMOND PAULO, male of Elise-fou
Defendant

Counsel:
Ms Lucymaria Tiutiuatoa Sio for Prosecution	
Ms Leone Su’a-Mailo for Accused

Sentence hearing: 23 August 2021	

Decision:  27th June 2022	
	
SENTENCING DECISION OF JUDGE SCHUSTER
1. 	The accused appears for sentencing on two counts of committing an indecent act on a young person under 6 years of age pursuant to section 59(3) of the Crimes Act 2013 (CA2013) which carries a maximum penalty of seven (7) years	imprisonment:
	59. Sexual conduct with young person under 16 – ….
	…………
	(3) A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years. 
	………..
2. 	The accused entered a guilty plea to the charge on the 9th November 2020 in the Supreme Court and subsequently transferred to the District Court for sentencing.
The Offending
3. 	According to the Prosecution Summary of Facts dated 8 March 2021 accepted by the accused through counsel, he was 18 years old at the time of the offending. He 	is a resident of Elise-fou and works helping his older brother with their family’s food stall at the Savalalo Market. 
4. 	The Victim at the time of the offending was a 13 years old male, resides at Elise-	fou and attends Year 7 at Vaigaga Primary School. 
5. 	On or between the 29th February and 1st June 2020 at Elise-fou, the accused went to the victim’s house and asked the victim to accompany him to Peau’s abandoned house. The victim went along with the accused and when they arrived at Peau’s house, the accused removed his pants exposing his penis. The victim then performed oral sex on the accused. 
6. 	On a separate occasion sometime between the 29th February and 1st June 2020, the accused went to the victim’s house to see the victim. The victim came outside and went with the accused to the back of the victim’s house where the accused removed his pants exposing his penis and made the victim perform oral sex on him.
7. 	It is not clear from the Summary of Facts but it appears that sometime in June 2020, the victim fell sick with a Sexually Transmitted Disease and told his mother about his sexual encounters with the accused. 
The Accused
8. 	The accused at the time of the offending was 17 years old. The Pre-Sentence Report states he was born on the 18 December 2002. He is the 3rd out of four of his siblings. He grew up at Elise-fou under the care of his parents. He started school 	at Vaigaga Junior Primary School and moved to Leififi College where he finished at 	Year 12. He worked in the family restaurant business to date and is, so far as his mother is concerned, very reliable and they depend on him and his older brother for the running of the business. 
9. 	It seems, based on the character references from the biological mother, Pastor Reupena Nofoaiga and village mayor Tamalema’i Sueni, that the offending had greatly shocked them and was way out of character for the accused who is part of 	the church Youth group, attends church regularly and is a cheerful serving young man in village events. The Pre-sentence Report states that the accused was remorseful and seeks a second chance for redemption.
The Victim
10. 	The victim is either now or going on to 15 years old since the offending. The Victim Impact Report makes no mention of any psychological or emotional harm to the victim as a result of the offending, whether the victim is still attending school, observation in his participation in village activities or just being a normal child. It is now generally accepted and accepted empirical research suggest that violent 	sexual or indecent assault on young children are highly likely to bring psychological 	and emotional trauma that lasts for many years if not properly dealt with. 
11. 	The absence of such an assessment on this victim is unforgiving notwithstanding that the facts suggest that the victim may have voluntarily participated (either in 	the whole or in part) in each of the offending. Such an assessment would go a long 	way in helping the victim deal with the offending as well as his own conduct or perception as to what is right and what is wrong. This assessment must be done by a professional clinical psychologist and must be made mandatory for all sexual offence cases involving young children.
12. 	In saying that, there has been reconciliation as the parents of the victim have confirmed that the accused family have apologized in the cultural manner and they have accepted the apology. They further requested Police to withdraw their complaint given their reconciliation and they have witnessed positive change in the accused. 
Aggravating features of the offending
13. 	In respect of the accused’s offending, the prosecution submit three aggravating features as highlighted in their sentencing memorandum. These are:
(i) 	the age difference with the victim is 4 years - the accused was at the time working and providing for his family, responsible for his family’s care; though 17, he is of mature age to determine that his actions were wrong and yet proceeded without regard to the age and vulnerability of the victim;
(ii)	premeditation – the defendant planned and went to the victim’s home twice and in each occasion managed to entice the victim to an isolated location in order to perform the offending act; and
(iii)	the need for deterrence – sexual assaults and indecent acts on young children are on the rise and the accused’s offending is no different but indicative of a behavior that like-minded offending adults hold mistakenly as some sort of sadistic normal.
14. 	Ms Su’a-Mailo accepts that the seriousness of the charge is an aggravating feature of the offending which carries a maximum penalty of 7 year’s imprisonment given 	the need to protect young children, even of themselves, from sexual assault of any 	kind.
15. 	I would further add that the victim and his family are well known to the accused being of the same village and the defendant took advantage or was opportunistic 	in monitoring the circumstances of the victim’s family in order to secretly engage with the victim.
The mitigating features of the offending
16. 	There are no mitigating features of the offending.
Aggravating features as an offender
17. 	The accused is a first offender and there are no aggravating features personal to him as an offender.
Mitigating factors in favour of the offender
18. 	The prosecution submits as mitigating features in respect of the accused’s offending:
(i)	His early guilty plea; and
(ii)	First offender status
19. 	I take into account the accused’s early guilty plea, his previous good character, the apology the accused and his family did to the victim’s family, the consequences of publication, personal and familial humiliation, perception and feelings of embarrassment, disgrace and dishonor of his family’s good name. It is also noted that this is a special village community, small, confined and close knit is Elise-fou. This village was created specifically as a trust under the oversight of the Government of Samoa via the Ministry of the Prime Minister for Ellice Island or Tuvalu immigrants and their descendants.
20. 	Ms Su’a-Mailo submits that the accused is remorseful of his actions and has shown 	this via his cooperation with the authorities and attending to the victim’s family to convey his regret and apology. As to the submission that the victim consented, I do not consider the victim’s actions which appear to be consensual participation as a mitigating factor. It would be meaningless to stipulate, on judicial notice, that a child under 16 years cannot be presumed to fully understand the meaning of what is right from wrong in relation to inappropriate sexual advances given their age, immaturity and the absence of appropriate knowledge and experience. To then accept that the victim consented to a sexual assault or indecent act would be illogical and incoherent with this rationale.
21. 	Ms Su’a submits that the defendants previous good character should be considered a mitigating factor.
Previous Sentencing Tariff
22. 	This Court in Police v Petelo Samaila (10 August 2021) WSDC Unreported reviewed sentencing cases involving sexual offending pursuant to section 59 of the Crimes Act 2013 to provide consistency in sentencing as to such cases. The distinction to be made in this case is the fact that the victim is under the age of 16 whereas the victims in cases reviewed in the Samaila case were all females over 	16 years. However, as Justice Nelson put it in Police v Oto [2009] WSSC 53 (8 May 	2009), it does not make these previous cases irrelevant “… but they are relevant 	insofar as they contain statements of general principle applicable to all sexual 	assaults on young [girls] children”. 
23. 	In Police v Laufiso Vaioalii (27 September 2017) WSSC Unreported, the 50 years old accused was charged under section 59(3) of the Crimes Act for indecently fondling the breasts of a 14 years old girl while she was sleeping at the accused home at a time the accused wife was away. Justice Tuala Warren arrived at a starting point of 8 months and deducted 3 months (37.5%) for mitigating factors personal to the accused such as the village fine and first offender status.
24. 	Ms Su’a-Mailo cited Police v Gasolo Fale. Although relevant, it is unfortunate that this case could not be located given the victim was a 14 years old boy. Ms Su’a-Mailo further referred to Police v Auvae [2020] WSDC 5 where the accused was a 53 years old male and a Jehovah’s Witnesses missionary. The victim was a 14 years old female. The accused intercepted the victim sometime after 5pm on her way back from the shop, forcefully pulled her behind a hedge and pursued to hug and 	kiss her. District Court Judge Atoa-Saaga after finding the accused guilty following a defended hearing, arrived at a starting point of 9 month’s imprisonment, one (1) month (11.1%) was added for the accused lack of remorse and aggravating factors; five months (55.5%) were deducted for mitigating factors personal to the accused. The accused was sentenced to five (5) month’s imprisonment.
25. 	In Police v Taito [2016] WSSC 184 (15 September 2016), Justice Tuala-Warren sentenced a 35 years old male who pleaded guilty to four (4) counts of indecent acts on a 14 years old female victim to four (4) months imprisonment for each count, concurrent on each count. These relate to fondling and kissing the victim during an act of sexual connection. In Police v Faamoe [2017] WSSC 53 (24 April 	2017), the 45 years old accused was convicted and sentenced to 12 months’ supervision, 100 hours community work, 8 weeks of spiritual counselling and not 	to re-offend within 12 months of supervision for groping a 14 years old male victim’s genitals.
26. 	In Police v Matamua [2017] WSSC 142 (8 November 2017), Justice Tuala-Warren sentenced a 35 years old male following a defended hearing to three (3) years imprisonment for 1 count of indecent act on a 13 years old female victim by forcefully carrying her away and removing her clothes whilst in the process of committing rape. In Police v Iakopo [2017] WSSC 162 (22 November 2017), Justice Tuala-Warren sentenced the 37 years old male accused to two years’ 	imprisonment following a defended hearing for sucking the second victim’s breasts whilst committing the offence of sexual connection. He was sentenced to 5 years concurrent for 2 charges of sexual connection where one was connected to the indecent act. In Police v Viliamu [2019] WSSC 86 (25 October 2019), the accused was a 17 years old male in a relationship with the 13 years old victim. The accused entered guilty pleas to 4 counts of sexual connection and 1 count to indecent assault. Justice Tuatagaloa taking a wholistic approach discharged the accused without conviction based on the circumstances of the case. 
27. 	It appears in both Iakopo and Viliamu above, the single charge of indecent assault 	was encompassed within the offences of sexual connection/sexual violation and 	inadvertently warranted no special mention particularly in the Viliamu case. This 	in my view was appropriate and correct being part of the whole act of leading up 	to sexual connection/sexual violation unless it was an entirely isolated incident. It 	would be highly appropriate for prosecution to consider this in future to have indecent assault as an alternative to sexual connection or sexual violation where it is part of the same continuous offending act. This would assist, in the situation where the accused pleads guilty to sexual violation or sexual connection, the court and parties to focus the attention on the main offence and not committing the “indecent act” charge in the course of sexual connection or sexual violation to triviality. The situation is different where the only charge is indecent act the attention is solely as to the aggravating and mitigating facts relating thereto. This is recommended as a matter of principle but in the same token acknowledge the laying of charges is entirely the prerogative of Police.
28. 	In summary:
•	Case 	•	Facts 	•	Sentence 	
•	Police v Laufiso Vaioalii (27 September 2017) WSSC Unreported	•	50 years old male indecently fondling the breasts of a 14 years old girl while she was sleeping at the accused home	•	Starting point 8 months and deducted 3 months for mitigating factors personal to the accused such as the village fine and first offender status 5 months imprisonment sentence	
•	Police v Auvae [2020] WSDC 5	•	53 years old male; forcefully pulled 14 years old female victim behind a hedge and pursued to hug and kiss her	•	starting point of 9 month’s imprisonment, one (1) month was added for the accused lack of remorse and aggravating factors; five months were deducted for mitigating factors personal to the accused. The accused was sentenced to five (5) month’s imprisonment	
•	Police v Taito [2016] WSSC 184 (15 September 2016)	•	35 years old male; fondling and kissing the 14 years old female victim while committing sexual connection	•	four (4) months imprisonment concurrent on each of the four counts	
•	Police v Faamoe [2017] WSSC 53 (24 April 2017)	•	45 years old male; groping a 14 years old male victim’s genitals	•	12 months’ supervision, 100 hours community work, 8 weeks of spiritual counselling and not to re-offend within 12 months of supervision	
•	Police v Matamua [2017] WSSC 142 (8 November 2017)	•	35 years old male; forcefully carrying 13 years old female victim away and removing her clothes whilst committing rape; 	•	3 years imprisonment for 1 count of indecent act	
•	Police v Iakopo [2017] WSSC 162 (22 November 2017)	•	37 years old male; defended hearing for sucking the 14 years old female victim’s breasts whilst committing sexual connection	•	Two years imprisonment	
•	In Police v Viliamu [2019] WSSC 86 (25 October 2019)	•	17 years old male in a relationship with the 13 years old victim; the accused entered guilty pleas to, inter alia 4 counts of sexual connection, 1 count to indecent assault	•	Discharged without conviction	
Discussion 
29. 	The gravity of the offending must firstly be considered on its own and finally measured based on the circumstances of each case. In this case, the facts relate to an accused 18 years old at the time of the offending who accosted a 14 years old male child on two separate occasions to perform oral sex on the accused. This 	is an abhorrent but now becoming a common offence in this country given the increase in the number of cases now before the court. It speaks much about the morality of this country and its peoples’ response to challenging social and economic issues, this modern age of technology and access to all types of 	information just by the press of a button. It is inconceivable that the majority of Samoan’s proclaim Christianity as the state religion and yet the courts are inundated with 99.9% of the fallen flock compared to those from non-Christian backgrounds.
30. 	From the courts perspective, we strive to ensure that the sentences are just, fair and impartial on the accused and taking into account the effect of the offending 	on aggrieved parties. The purpose of section 5 of the Sentencing Act 2016 	(SA2016) is:
(a)	to hold the defendant accountable for harm done to the victim 	and the community by the offending; 
(b)	 to promote in the defendant a sense of responsibility 	for, and an acknowledgment of, that harm; 
(c) 	to provide for the interests of the victim of the offence; 
(d)	to denounce the conduct in which the defendant was 		involved; 
(e) 	to deter the defendant or other persons from committing the same or a similar offence; 
(f)	 to protect the community from the defendant; 
(g) 	to assist in the defendant’s rehabilitation and reintegration.
31. 	Section 6 of the SA2016 provides the principles of sentencing to:
(a) 	take into account the gravity of the offending in the particular case, including the degree of culpability of the defendant; and 
(b)	 take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and 
(c) 	impose the maximum penalty prescribed for the offence if the 	offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate; and
(d) 	impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate; and 
(e) 	take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with defendants in respect of similar defendants committing similar offences in similar circumstances; and 
(f) 	take into account any information provided to the court concerning the effect of the offending on the victim; and 
(g) 	take into account any particular circumstances of the defendant that means that a sentence or other means of dealing with the defendant that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and 
(h) 	take into account the defendant’s personal, family, community, and cultural background in imposing a sentence or other means of dealing with the defendant with a partly or wholly rehabilitative purpose.
32. 	The prosecution recommends for the defendant to be convicted and placed under 	six (6) months’ probation with further conditions to complete 80 hours’ 	community work and attend Teen Challenge program. Ms Su’a-Mailo has filed a discharge without conviction application. 
33. 	I take judicial notice as to the discussion in Police v Petelo Samaila as relevant in principle to the facts that must be taken into consideration when approaching the question of appropriate sentence based on the circumstances of each case. In particular, the concern for the prevalence of this type of offending and Samoa’s commitment to the Convention on the Rights of the Child to be safeguarded and 	protected from unlawful harm and/or sexual offending.
34. 	Given the Governments responsibility to protect our young children, the rule in my view as it is in the Supreme Court cases for sexual violation and sexual connection must be custodial unless there are exceptional circumstances to warrant a sentence other than imprisonment. Police v Viliamu was one such exception.
35. 	Of the cases referred above filed under section 59(3) of the CA2013, only Police v Viliamu and Police v Faamoe were non-custodial. Vaioalii and Auvae involved acts 	of fondling the victim’s breasts, forcefully taking away coupled with hugging and 	kissing respectively. The Supreme Court considered custodial sentences were 	warranted materially because they were middle aged male adults who were 	opportunistic and forcefully took advantage without regard to the age of the 	victims. The starting point ranged from 8 to 12 months. 
36. 	In Taito, Matamua and Iakopo, the Supreme Court considered appropriate custodial sentences ranging from 4 months, 2 years and 3 years respectively. With 	the exception of Taito, the sentencing rationale is perhaps, in my analysis, due to the fact that the indecent assault charges were associated and viewed in light of the grievous sexual violation and/or sexual connection charges the accused admitted or found guilty of (see Iakopo). Taito’s sentence of four months appears consistent with Vaioalii and Auvae.
37. 	The huge difference in sentence is quite notable having jumped from a custodial starting point high of 12 months in Vaioalii and Auvae to at least 2 years or 24 months in Matamua and Iakopo. 
38. 	It is to be noted that the sentencing case referred in Police v Petelo Samila was brought under section 60 (indecent assault) of the CA2013 which attracts a maximum 5 year’s imprisonment. In the Samila case, in order to achieve some 	kind of consistency in sentencing cases under sections 60 of the CA2013, this court took the view that custodial sentence warrant:
	“… a starting point of 12 months maximum for low end offences, 13 – 24 months for medium end offences and 25 months plus for high end offences. The high end starting point would seem consistent with Police v Puni and Police v Oto where a starting point of three (3) years was taken by Justice Slicer and Justice Nelson respectively given the seriousness of the offending involving, inter alia, professional/special relationship and digital penetration. The medium end in my view would be consistent with His Honour Justice Clarke’s sentencing in Ah Kuoi given the indecent act coupled with the associated violence involved. I would respectfully include the offending circumstances in Police v Tauese in the mid-range offences the victim being his sister and the violent act and character of the accused based on his previous convictions be it perhaps because of some temporary mental disorder.”
Indecent act starting point
39. 	The interesting part at this stage is how do we logically and reasonably determine the gravity of the offending in order to consider the low, middle and high end to at least achieve sentence consistency for imprisonment terms. The maximum penalty is 7 years for “indecent act” but the term is not defined in Part 7 of the Act although it is pre-supposed to suggest covering any other act that falls outside the 	definition of “sexual violation” or “sexual connection”. 
40. 	Respectfully, it is important that this legal issue is thrashed out thoroughly so that the court can get to the heart of the offence so far as to the appropriate sentence to be handed down is concerned based on the circumstances of the offending. To 	do this, we need first to define the term.
41. 	In Seymour v R [2021] NZHC 2322, the New Zealand High Court defined “indecent act” objectively as an act or acts that would be regarded as an indecent act(s) or such act(s) capable of being indecent by right-thinking members of the community and that the act itself must be indecent and not subject to the surrounding circumstances. Furthermore, it was not necessary to consider whether the 	accused had an indecent purpose.
42. 	It appears that single acts such as removing a child’s clothes, fondling any part of a child’s body inappropriately except for the genitalia or anus (s50(b) of the Act); 	inappropriate kissing, hugging, forcefully removing a child to a secluded place, having the child do indecent acts or the child do indecent acts on the accused, taking of indecent photographs or video, etc., would fall within the parameters of “indecent act”. 
43. 	It would be judicially reasonable to consider single acts of indecency without application of violence or force to fall at the lower end; multiple acts of indecency to fall within the middle; and multiple acts coupled with persistent harassment and violence to be at the high end. It must be reminded that the applied definition of “indecent act” distinguishes it from and fall short of “sexual violation”, “sexual 	connection” and “indecent assault” under s60 of the CA2013. 
44. 	Given the primary concern of the provision to protect young children from being 	sexually manipulated and taken advantage particularly by adult males, I would consider appropriate 12 months as the starting point for low end offences. The 	mid-level I would consider reasonable 36 months (3 years) as a starting point. The more serious of such offending conduct would attract in my view a starting point 	of 60+ months (5+ years).
Mitigating deductions
45. 	In relation to mitigating factors of the offending or personal to the accused, as this court had adopted from Police v Puni applied in Police v Samila, I consider reasonable a maximum of 25% deduction for early guilty plea; a maximum of 20% for previous good character, service to the community, etc.; a maximum of 20% for traditional penalties; and a maximum of 20% for apology (traditional or otherwise), reparations, reconciliation, etc. As the gravity of the offending would be indicative of the starting point, the remaining balance will be the period of incarceration with any additional period reasonable to the courts determination to be uplifted due to any or all of the aggravating factors.
46. 	It is to be noted that the prosecution have indicated in their sentencing memorandum that a conviction and probation period would be appropriate in this case as opposed to a sentence of imprisonment. This is supported by the probation report. In saying that, it is still the responsibility of the court to make 	the determination whether an exception of a non-custodial sentence is warranted on the circumstances taking into account recommendations from parties involved in the matter.
Application to Discharge Without Conviction
47. 	The law as to discharge without conviction pursuant to sections 69 and 70 of the Sentencing Act 2016 is settled law in Samoa and it is therefore not necessary to 	travail that legal landscape again. This briefly involves four steps:
(a) Step 1: 	Determine the gravity of the offence.
(b) Step 2: 	Determine the direct and indirect consequences of a conviction.
(c) Step 3:	Consider whether those consequences are out of all proportion to the gravity of the offence.
(d) Step 4:	If the Court determines that the consequences of a conviction are out of proportion to the gravity of the offence, the Court must still consider whether it should exercise its discretion under s 69 of the Act to grant a discharge without conviction.
Gravity of offending
48. 	When considering the gravity of the offending, I am to take into account all the aggravating and mitigating factors relating to the offending and the offender referred earlier in this judgment. I take into account that the accused is a young person himself at the time of the offending. He left school at year 12 and took on the responsibility with his older brother to manage their family restaurant business at the Savalalo Flee Market which continues to sustain their family to this day. The accused’s mother attests that he is very reliable and she depends on him. The accused offending has shocked their family for it is a flaw never observed before from the accused. Ms Su’a submits that the accused naivety resulted in his material lapse of judgment of which he is truly remorse and with much regret. 
49. 	The victim and his family have accepted an apology from the accused and his family done in the traditional customary practice. The nature of this type of offending would be very traumatic to young unsuspecting victims as the court has observed over many cases particular where force and certain degree of violence is involved. The fact that there was no clinical psychologist report or similar report 	does not conceal the fact that the court can take judicial notice of such trauma based on its own direct knowledge and experience. In saying that, the offending 	in this case does not show to have such aggravating traumatic features. 
50. 	Having taken into account all the aggravating and mitigating factors, I am of the view that these facts cast an exceptional and mitigating light on the accused and I 	consider the gravity of the offending in the range of low to moderate.
Direct and Indirect Consequences
51. 	The test is that I must simply be satisfied that there is a “real and appreciable risk” that a conviction will have a direct and indirect consequence on the accused. The 	accused attests that he aspires to migrate to New Zealand and an application has been filed in his favour for adoption by his mother’s sister. This is attested in the 	affidavit of the accused mother annexing a written confirmation from her sister 	and not contested by the prosecution.
52. 	It is noted that the courts are reluctant to usurp the function of immigration authorities when considering a sections 69 and 70 application on international travel ground. Taking judicial notice of circumstances in Samoa, New Zealand and Australia are the two most visited and settled countries by Samoans. To put it in context, the issue of travel is not just for the purpose of travel but predominantly migration in terms of better education, jobs, opportunities and healthcare. This is particularly so for the young people. 
53. 	To do so, Samoans must firstly get past the visa process where they are required, inter alia, to disclose any criminal conviction. The determination would most probably be subjective being the sole discretion of the immigration authority and not subject to an appeal or review taking into consideration the type of offence, time of the offence (in this case having occurred between February and June of 2020) and sentence (in mid-2022). It would be in my view a direct and indirect consequence that the accused would probably be prima facie ineligible to enter the foreign jurisdiction and therefore the consequence is real and the risk appreciable. The accused at the time of the offending was 17 and two months. He is a young man with potential and future prospects and there is an application for adoption by his mothers’ sister who reside in New Zealand but whether granted or not would fall under the shadow of the consequence of a conviction. 
54. 	I am satisfied that the offence being low to moderate and given the aggravating and mitigating factors that it would be wrong to allow the applicant to present 	himself to foreign immigration authorities without disclosing criminal conviction.
Proportionality assessment
55. 	The final assessment is whether the likely consequences of a conviction are out of 	all proportion to the gravity of the offending. It is a fact that negative consequences ordinarily follow a criminal conviction. However, the young age of the accused at the time of his offending I consider as no ordinary matter as well as the high likelihood of serious consequences that follow a conviction.
Residual Discretion
56. 	The question now is should I exercise my residual discretion to discharge the accused without conviction under section 69? Taking into consideration all the aggravating and mitigating factors of this case, the principles and purpose of sentencing as outlined in sections 5 and 6 of the Sentencing Act, I am satisfied that the accused has met the jurisdictional threshold in section 70. 
Conclusion 
57. 	I therefore discharge the accused without conviction pursuant to section 69 of the Sentencing Act 2016.
JUDGE MATA’UTIA RAYMOND SCHUSTER