The Supreme Court ruled to uphold the appeal and conviction entered against Police Seargeant Khamtan Stanley and High Chief Ulugia Lomalasi Laufili, in relation to the death of a man from Vaiusu in 2019.
The District Court’s decision on their discharge without conviction has been overruled.
The decision was rendered by Supreme Court Justice Lesatele Rapi Vaai last week 25 August, following a hearing on 1 August 2022.
The defendants pleaded guilty in the District Court to the charge of intent to cause actual bodily harm, and Stanley sought a discharge without conviction pursuant to section 69 of the sentencing Act 2016 and was successful.
The second respondent was also discharged without conviction as a result although he did not seek a discharge and that decision was handed down by District Court Judge Leota Raymond Schuster.
The Attorney General’s office appealed through the Independent Prosecutor, Leinafo Taimlaelagi-Strickland who cited in her appeal Judge Schuster “erred in law fact in the overall assessment of all the relevant facts/circumstances surroundings the offending.
“The Honorable judge erred in law/fact in giving insufficient weights to the relevant aggravating features of the offending. “The Honorable Judge erred in fact and/or law in finding that the direct and indirect consequences of a conviction would be out of all proportion of the gravity of the offense.”
THE OFFENDING
According to the decision in the early hours(approximately 5.15 am) of Saturday 23rd November 2019, the first respondent was awoken by the screams of his wife sleeping next to him.
“The male intruder who touched the wife’s leg causing her to scream, fled from the room and was chased by the first respondent (Stanley) but was unsuccessful and he returned to his wife who was in a state of distraught.
“She was subjected to sexual assault when she was about six years through a similar home invasion; subsequently, the intruder was identified when Stanley’s father viewed the home surveillance footage inside the house it was the same person the first respondent questioned earlier at the main road in front of the house when the (Stanley) first gave chase.”
Stanley then returned to the main road and approached the intruder who was visibly intoxicated and led him to the porch of the house where he was questioned.
Despite the denials Stanley slapped the intruder in the face, and after showing the intruder the footage, he “admitted it was him in the footage”. Stanely then slapped, kicked and punched the intruder.
“The intruder dropped to the floor” when Ulugia who lives next door walked in after hearing the commotion from his house.
“He told in response to his query about what the intruder did (Ulugia) told off the intruder and joined in the assault by punching while the intruder was still on the floor, he then grabbed a plank of wood and stuck the intruder’s legs.”
“After about five to ten minutes inside the house, the intruder was dragged back to the porch where the (Stanley) continued to slap and punch the face, kicked the back and hip area of the intruder who was still on the floor shielding his face.
“When the intruder reached out his hand the first respondent slapped it away and continued with the kicking and punching and the assault slapped when the police arrived.
“It is common ground tat the intruder was at the mercy of the first respondent for about twenty seven(27) minutes before the police arrived, but the beating was about sustained throughout the 27 minutes.
“The police summary of facts was not disputed”
The decision states that the respondents were originally charged with manslaughter in the Supreme Court but eventually when that serious charge was withdrawn they pleaded guilty to a lesser charge in the District Court, to causing bodily harm with intent to cause bodily harm.
“There was an issue in the District Court whether the intruder provoked the assault, the Judge considered that, there was insufficient detail related to provocation for the court to make a determination for it is not enough simply to claim to have been caused by the actions of the intruder or another a disputed facts hearing held.
“In assessing the gravity of the offending of the first respondent the judge was of the view that it was moderate to high but short of grievous.”
The decision says Judge Schuster considered the effect of the provocation and he concluded the first respondent’s reaction was reasonable.
“An intruder had violence the sanctity of his home in the early hours of the morning before lights and molested his wife who was sleeping naked next to him.
“Such an affront to his wife was an attack on the first defendant in his own home. “He swore in his oral testimony to protect her and his family from such an ordeal given a similar traumatic incident when she was 6 years old and would have had a good reason to feel a sense of failure and inequality to not being able to prevent what happened this is the distinguishing factor in this case.”
Judge Schuster was satisfied that there was a serious provocation which was an operative cause of the violence inflicted by the first respondent and which remained an operative cause throughout the commission of the offense.
“The Judge then turned to the consequences of the conviction. “He noted from the testimonials that a conviction will most likely end the first respondent career as police officer and police prosecutors; which in turn will impact his ability to provide for his family due to financial hardship
“The Judge then concluded that the risk of the first respondent’s employment prospects was out of all proportion to the gravity of his offending which has been significantly reduced by the provocation.”
According to Judgment, Ulugia said participated in the assault as felt sympathy towards and Stanley and his family who are his close neighbours. He was was annoyed and embarrassed that young people like the victim were brought to the village because of such conduct.
“On the issue of proportionality, the judge considered that a conviction against the second respondent would mean a black mark on what was a respectable and hardworking businessman who is remorseful and has regretted the mistake.”
Justice Vaai agrees with the appellant that the Judge understated the gravity of the offending.
“There were three distinct acts of violence by the first respondent explained In the summary of facts which the two respondents accepted. “The first was at the porch when the intruder was apprehended. He was slapped in the face by the first respondent.
“The second incident was inside the house where the intruder after admitting he was the culprit, was slapped, kicked and punched.
“He was on the floor during the assault when the second respondent joined in the assault before striking the intruder with a plank of wood. The third was back at the porch where the first respondent dragged the intruder and continued with the assault until the police arrived.
“Five injuries to the torso area and fourteen injuries of the extremities described in the police summary of the fact suggest the number of times the intruder was assaulted.
“They were deliberate acts of kicking, punching and striking on a vulnerable intruder who lying helpless on the ground. He was humiliated in the presence of those present. He was in pain.
“The assault was obviously distressing and frightening.
“Provocation was a significant factor which persuaded the judge to justify a significant reduction in the gravity of the offending of the first respondent. He ruled that the provocation, was an operative cause of violence inflicted by the first respondent and which remained an operative cause throughout the commission of the offense.”
Justice Vaai noted in his decision that perhaps the first assault on the porch and the second inside the house when the intruders made the admission would have justified the reasonableness of Stanley’s reaction.
“Dragging the intruder back to the porch to resume the assault was consistent with a sense of outrage and revenge that the intruder invaded the privacy of his home and molested his wife.
“The retaliation by the first respondent lasting twenty-seven minutes could not be classified as proportionate to the provocation. It could not be described as a spur-of-the-moment display of anger promoted by provocation.”
Justice Vaai further pointed to the number of mitigating factors, guilty pleas at the first reasonable opportunity; genuine remorse; apology to, reconciliation and contribution to funeral expenses of the intruder; fine imposed by the village; shame by the virtue of their standing within the village and community; good characters; and unblemished records.
“Although not grievous the offending by the respondents was nonetheless serious.”
According to Justice Vaai, the court should be hesitant to usurp the role of a statutory organization, professional body or a particular employer to decide the significant of a particular conviction.
Justice Vaai says the first respondent expressed concerns the consequences of a conviction will most likely include the termination of his career as a police officer, but the court should take care not to usurp the function of bodies whose responsibility is to determine eligibility for employment and immigration by routinely providing discharge in cases of this kind.
“I can well accept that if convictions is going to result in a bar to the offender gaining entry to some profession or career then it may well be appropriate to ameliorate those consequences in an appropriate case by declining to enter a conviction.
“Where, however, Parliament has seen fit to establish statutory authority with the task of selecting or screening an applicant for admission to whatever trade or profession may be involved then clearly parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of kind of qualities that are appropriate for the particular trade or profession and those which render admission to that tree or profession inappropriate.”
Justice Vaai says that it would be inappropriate at any rate in all but the most exceptional case for this court to substitute its discretion “as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which parliament has seen fit to vest in a statutory body.
“Indeed it is not perhaps going too far to say that to do so to court would be actively concealing from the statutory body information which ought properly to come before that body.”
For Ulugia, Justice Vaai said the conviction would place a black mark on a hardworking respectable village leader and businessman.
Justice Vaai said the offending by the defendants was serious and carries a lengthy maximus term of imprisonment.
His Honours says in normal circumstances the offending by the respondents would warrant a starting point of imprisonment
“While accepting that the first respondent will face difficulties if dismissed from the police service, it is also to be accepted that these are the kinds of difficulties that naturally flow from the convictions for the offence in question.
“When the consequences are balanced against the gravity of the offending, I do not consider the direct and indirect consequences of a conviction to be out of all proportion to the gravity of the offense.”
Justice Vaai ruled that it is not necessary to exercise the statutory discretion that would otherwise follow due to my conclusion on disproportionally.
“The section 70 threshold has not been met, the appeal must be allowed.”
RESULT
“The appeal is allowed and conviction entered against each respondent. “Both respondents will be sentenced on 26 September 2022 at 12.30 pm. Bail to continue.
“Counsel who wish to file supplementary sentencing submissions must do so by 19th September 2022.”
