DISTRICT COURT OF SAMOA
Police v Wilson [2016] WSDC 28
Case name: 	Police v Wilson	
		
Citation: 	[2016] WSDC 28	
		
Decision date: 	30 March 2016	
		
Parties: 	Police (Prosecution) and Kylie Chanel Wilson female of Lelata (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	In the District Court of Samoa, Mulinuu	
		
Judge(s): 	DCJ Fepuleai Ameperosa Roma	
		
On appeal from:		
		
Order:	Ms Wilson you are ordered to pay forthwith prosecution costs of $200 and upon payment on those costs you will be discharged without conviction.	
		
Representation: 	Mr G. Patu  for Prosecution
Mr S. Leung Wai for defendant	
		
Catchwords: 	Common Assault 	
		
Words and phrases:		
		
Legislation cited:	Criminal Procedure Act s104(1)(b)	
		
Cases cited:	Police v Papalii and Moalele [2011]
WSSC 132 (25 November 2011),	
	R v Hughes  [2000] NZCA 544
Fisheries Inspector v Turner [1978] 2 NZLR 233	
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Informant

AND:

KYLIE CHANEL WILSON, female of Lelata
Defendant

Counsel:	
Mr G. Patu for Prosecution
Mr S. Leung Wai for Defendant

Sentence:	30th March 2016

SENTENCING REMARKS OF JUDGE ROMA
The Charge
1. 	Ms Wilson, you appear this afternoon for sentencing on one count of common assault, a charge which you pleaded guilty to on the 8th of March 2016.  The maximum penalty is 12 months imprisonment.
The Offending 
2. 	According to the Summary, the incident from which the charge arises occurred in the early hours of the 30th of December 2015, 5 days after Christmas and 2 before New Year’s Eve. The Summary also says that on the early morning of the incident, both you and the victim were present at a Robert Louis Stevenson School reunion at the Glass Lounge bar at the Marina.  As the bar was closing down, you walked over to where the victim was talking to a friend of yours, and told the victim that she (victim) was just jealous of what you and your friend had.  Whatever that was or is, the Summary does not say.  But the Summary does say, that you repeated that statement to the victim when she asked you, after which an altercation then occurred, because naturally, the victim was not pleased with what you said to her.  The victim pulled your hair and there was an exchange of shoves before the two of you were separated by others who were present.
3. 	The Summary as amended this morning, says that you were separated for 2 to 3 minutes before you returned and punched the victim from the front right side, which punch landed on the right side of the victim’s forehead.
4. 	Through Mr Leung Wai your Counsel, you dispute that part of the Summary.  You dispute that you were separated, and for that long before you went back and threw the punch.  Your version according to Counsel, is that everything including the punch happened there and then.   You did not go back just to assault the victim after you were separated.  
5. 	Whether or not you came back and punched the victim after you were separated for 2 or 3 minutes, what is clear in my view, is that the level of tension between you and the victim, there and then was at a high, and the punch that you subsequently threw was thrown in the heat of the moment.
The Victim
6. 	The victim according to the Victim Impact Report is a 27 year old female, who is obviously known to you.  The injuries that she sustained were scratches on her neck, under arms and bit of bruising on her right forearm.  The report also states that she felt pain on her right forehead and right knee as a result of your offending.
7. 	Apart from those injuries, the victim explains in the report that she was sad when you went up to her, and said what you said.  She is also emotional when the incident is brought up.   But the victim also confirms in the report that this matter is now well settled between you two.  She has forgiven you and does not want anything bad to happen to you.  
The Accused
8. 	Ms Wilson according to the Summary and from the submissions of your Counsel, you are 24 years of age.  You are a law graduate of the University of the South Pacific, and since December 2014 you have been employed in the Legislative Division of the Office of the Attorney General.
The aggravating features of your offending
9. 	Firstly, the impact of your offending on the victim as stated in the Victim Impact Report.  Not only did she sustain physical injuries, she also suffered emotional and psychological harm.
10. 	Secondly, the offending took place in public and no doubt was witnessed by many people.  That however is not to suggest, that an offending that takes place in a private place or home is any less serious.
The mitigation features of your offending
11. 	Firstly, I find that there is a degree of provocation in this case.  From the documents that were before me, and before receiving the Summary of Facts this morning, there was a strong suggestion that this was a provoked assault because as submitted by your Counsel, you were hit by the victim and you retaliated by punching her back.  
12. 	However having read the Summary which except for a minor detail, you accept, it refers to you initially making unpleasant remarks at the victim.  In my view you provoked the incident when you made those remarks not once, but twice.
13. 	Nevertheless I find that when there was shoving and subsequently when you threw the punch, you acted under a degree of provocation, because the victim had understandably taken exception to what you said to her, and pulled your hair first. 
14. 	Secondly, apart from the shoving, you threw a single punch at the victim.
15. 	Thirdly, the physical injuries sustained by the victim have healed.  They were minor compared to other similar cases that have come before the Court.
16. 	I also bear in mind that as a result of this incident, you too suffered injury as stated by your Counsel in his submissions.
The aggravating factors relating to you as an offender
17. 	I find that there are none.
The mitigation factors relating to you as an offender
18. 	Firstly, I take into account that you entered a guilty plea at the earliest opportunity.  I accept that by pleading guilty, you have accepted full responsibility for your actions.  It is also an indication of your remorse.  
19. 	Secondly, I take into account the fact that reconciliation has been made.  You have apologised to the victim, and likewise the victim to you. You both sought to withdraw your respective complaints with the Commissioner of Police as evidenced by copies of your letters attached to the submissions of your Counsel. 
20. 	I also take into account your personal circumstances.    You are 24 years of age.   You are still in the early stages of a career in law.  Unfortunately, at such an early stage, you have also appeared before this Court, not as Counsel but as a defendant in a criminal matter.  The testimonials attached to your Counsel’s submissions from Father Maselino Lafaele, Sister Makerita Bourne, Ms Loretta Teueli who is the current Head on the Legislative Division of the Attorney General’s Office and Mr Herman Kruse, a senior member of the Samoa Law Society, for whom you worked briefly as intern, all speak highly of your character and potential, and I accept that your offending was out of character.
Relevant Sentencing Principles
21. 	I agree with the prosecution that the relevant principles for sentencing are those referred to at paragraph 2 of its sentencing memorandum.  These are  to hold you accountable for the harm that you have caused the victim; to promote and instill in you a sense of responsibility for that harm; to provide for the interests of the victim of your offending; and to denounce your conduct and protect the community from this type of offending.  
Application for a discharge without conviction
22. 	Your Counsel seeks that the Court exercises its discretion in favour of a discharge without conviction under section 104(1)(b) of the Criminal Procedure Act 1972.  Whilst unopposed to your Counsel’s application, the prosecution submits that I also order you to undergo a judicially monitored intervention programme to address ‘intoxication’, which they say played a part, and to make you realise and appreciate the consequences of your action on the victim. 
23. 	With respect, I do not find that such a sentence is appropriate in the circumstances.  I accept that your offending was out of character; it was a one- off offending; you have settled your differences with the victim; and I am satisfied that having gone through the process of being charged and appearing in Court, you would not want to go through this again.  
24. 	But even without opposition from the prosecution to your Counsel’s submission for a discharge without conviction. I must still consider and decide on that application in accordance with the provisions of the law.
Discussion
25. 	Section 104 (1)(b) of the Criminal Procedure Act 1972 to which I have  referred relevantly provides:
 
“If after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence, is of the opinion that, although the charge is proved: 
-	- - - - 
Having regard to the age or some other special circumstances of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed; it may discharge that person without convicting her or him unless a minimum penalty is expressly provided for the offence by any enactment.”
26. 	The exercise of the Court’s discretion under this provision has also been discussed in previous decision of the Courts.  One of those is the case of Police v Papalii and Moalele [2011] WSSC 132 (25 November 2011), a sentencing decision of His Honour the Chief Justice.  In that case, the Supreme Court granted a discharge without conviction for one of the accused female police officers, who was found guilty of common assault.  His Honour Chief Justice found, that after weighing up the gravity of the accused’s offending against the consequences of a conviction on her promising career in the Police Force, the consequences of a conviction would be out of all proportion to the gravity of her offending. 
27. 	Significantly in that case, His Honour the Chief Justice adopted as the relevant approach in determining the question of whether to discharge an accused without conviction under 104(1)(b) of the Criminal Procedure Act 1972, the three step approach that was indentified in the case of R v Hughes  [2000] NZCA 544, as derived from the judgment of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233.  
28. 	The three step approach is such that the Court must firstly consider the gravity of the offending; secondly, the consequences of a conviction, and finally whether these consequences are out of all proportion to the gravity of the offending.  
29. 	I note that whilst the New Zealand provision uses the word “all” in reference to the consequences of a conviction being out of all proportion to the gravity of the offending, the word “all” does not appear in our section 104(1)(b), which arguably suggests in my view, that the situation is not as extreme under our Criminal Procedure Act than it is under the  New Zealand provision. 
30. 	Applying the three steps approach to your case Ms Wilson:
i.	The gravity of your offending
Again, I find that your offending is at the lower end of the scale. Apart from the shoving, it involved a single punch thrown in the heat of the moment, and in retaliation to your hair being pulled by the victim.  The injuries sustained by the victim were minor and have healed.   You have also settled the matter culminating in your respective requests to withdraw the charges, which requests were obviously not entertained by the Police and the National Prosecution Office.
ii.	The consequences of a conviction on you
You are in the early stages of your career as a lawyer.  According to the testimonials, you have also shown great potential.   Lawyers are expected to be of, and maintain good character.  A conviction for a criminal offence, albeit a minor offence, as your Counsel suggests, would no doubt, have an impact on your good character.  I am satisfied also that a conviction will potentially, bring an end to your young and promising legal career. 
iii.		Whether the consequences of a conviction will be out of proportion to the gravity of your offending
After weighing up the gravity of your offending against the consequences of a conviction on you, I have reached the conclusion that the consequences of a conviction would be out of proportion to the gravity of your offending.  Equally in my view, if the requirement was that the consequences of the conviction would be out of “all” proportion to the gravity of your offending as is the New Zealand provision, I would reach the same conclusion.
The penalty
31. 	Ms Wilson you are ordered to pay forthwith prosecution costs of $200.00.  Upon payment of those costs, you will be discharged without conviction.

							JUDGE FEPULEAI A ROMA