Judge delivers her decision
District Court Judge, Alalatoa R. Viane Papali’i, has dismissed charges of reckless and driving an unregistered vehicle against Orlando Keil and Scott Levi.
The charges against the members of the V8 Club, stemmed from a “tribute” in the form of screeching tyres in honour of a 17-year-old male, Orlando Manulelia, who died as a result of a car crash.
The defendants were represented by lawyer Charlie Vaai. Snr. Sergeant Stanley and Ms. V. Afoa were the prosecutors.
Judge Alalatoa’s ruling in full is published below and inside:
1. On Sunday 1July 2018, a 17-year-old male youth by the name of Orlando Manulelia known to be a boy racer (“Deceased”), died on impact in tragic circumstances when he crashed into a power post besides Georgie’s Pizza on Vaea Street, Saleufi. This terrible incident was widely publicized by the media including social media. In the days leading up to his funeral, an outpour of tributes in various forms was made. This continued to the date of his funeral on 21 July 2018.
2. The two accused and other members of the V8 Club, which is described as a group of retro or classic car enthusiasts, participated in a tribute on the date of the deceased’s funeral and as a result they were charged with these offences. The incidents forming the basis of the charges are not the same. For convenience however, I have decided to sentence the both together.
3. Scott Levi (“Levi”) the charge against you reads that at Tuanaimato on 21 July 2018, you recklessly drove a motor vehicle namely a Chevrolet Elcamino registered plate number 9312 on Tuanaimato Road, in a manner namely screeching of tyres which was dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic which might reasonably be expected to be on the road. The charge is brought pursuant to s39(1) Road Traffic Ordinance 1960 (“RTO”).
4. For you Orlando Keil (“Keil”) you face two charges; a third one was withdrawn by Police and dismissed. Like Levi, you are also charged with reckless driving on the same date pursuant to s39 (1) RTO. But the particulars of material difference are: the vehicle you drove being a Transan registered number 10636, the place of offending being Vaea Street at Saleufi, and the manner described as amounting to the offence, is spinning tyres thereby creating smoke which was dangerous to the public having regard to all circumstances of the case.
The second count relates to your driving the above described vehicle on the same date, when it was unregistered and unlicensed; an offence against s7(1) (1) RTO.
5. The reckless driving offences carry a penalty of two years imprisonment or a fine of $1000. The unlicensed vehicle attracts a penalty of $200.00. You both pleaded guilty to the offences; you Levi on 21/08/18 and Keil 4/09/18. Today you appear for sentence.
6. You each accepted your respective Summary of Facts (“SOF”) through your counsel who urged your version of events and circumstances of the offending be considered to give a complete picture of what occurred. For you Levi, it is said that at Tuanaimato on the date in question during the funeral procession for the deceased, you screeched the tyres of your stationary vehicle. Nearby residents were troubled by your actions that they complained against it.
7. As for you Keil, your SOF prepared by Prosecution at paragraphs 3 and 4 states that:
“3. O se tasi lenei mataupu o mataupu sa faapea ona faalauiloa i luga o Api Foliga (Facebook) e tusa ma le taavale sa faapea ona tauaveina e le ua molia ma ia faatinoina ai ni uiga le migao e ala lea o lona faaviviliina o pa’u o lana taavale ua mafua ai ona asu faasoloatoa lea vaega o le auala o lo’o faaaogaina e le mamalu lautele o le atunuu.
4. O le mafuaaga o le faatinoina ai e le ua molia ma nisi o le latou vaega lea gaioiga ona o se moomooga alofa (tribute) i se tasi o tamaititi sa faapea ona lavea lana taavale ma maliu ai i autafa ane le Georgie’s Pizza e faafesagai ma le pamu penisini a le Sosaiete”.
8. Levi, you are married with children and operate an engineering business with your main line of work being steel fabrication and construction of boats. Keil, you are also married with children and operate a private business at Vailoa Faleata called West End Tyres Ltd.
9. The victim is obviously the State and those members of the public who complained about the incidents.
Aggravating and Mitigating factors
10. To avoid repetition, I will deal with this in my assessment of the gravity of the offence.
11. Your counsel has put forth that you be discharged without conviction under sections 69 and 70 Sentencing Act 2016 (“SA”). Prosecution opposes the application arguing the entry of a conviction and imposing a fine of $500, Court costs of $100 and Prosecution costs of $100 is the appropriate sentence.
12. Ms Afoa for the Prosecution was questioned further today if they maintain their position. She informed that it remains the same but to assist the Court, she referred to a similar case sentenced in this Court also involving screeching tyres where the accused was discharged without conviction. She was unable to give me full details of the case. I will now turn to consider the application for a discharge without conviction.
Law on Discharge without Conviction
13. Section 11 of the Sentencing Act 2018 provides that where an accused has pleaded guilty to an offence, then before entering a conviction and imposing sentence, the Court must consider whether such accused would be more appropriately dealt with by a discharge without conviction. This is a mandatory requirement as our Court of Appeal observed in the recent case of Chang vs AG where the learned Justices stated, it appears from s11 that in every case, the Court is to consider the probability of a discharge.
14. The law is now settled as to the approach to a discharge without conviction as set out in P v Papalii . That case concerned an application for a discharge under s104 of the repealed Criminal Procedure Act 1972. This is now replaced by ss69 and 70 SA. I conducted a comprehensive analysis of the law in P v Lauina then P v Ropati and I need not traverse to this any further. Suffice to say sections 69 and 70 SA do not impose a new test from that our Courts have adopted since Papalii.
15. Chang recognized that the approach is two staged. The first stage as I said in Ropati and P v Robles involves the Court carrying out a judicial assessment of s70 of whether the consequences of a conviction would be out of all proportion to the gravity of the offence. This is normally referred to as the disproportionality test and involves consideration of three steps:
a. Step 1: Gravity of the offending;
b. Step 2: Consequences of a conviction; and
c. Step 3: Whether those consequences in step 2 are out of all proportion to the gravity of the offending.
16. As I said in previous cases such as Lauina and Ropati adopting the NZ approach to their corresponding ss106 (similar to our s69) and 107 (same as our s70) Sentencing Act 2002, only when the first stage above is passed will the Court move to consider the second stage of whether a discharge should be granted under s70 SA. I also note our Court of Appeal’s observation in Chang that a Judge must exercise his or her statutory discretion to discharge a person without conviction by balancing the direct and indirect consequences of a conviction to an accused against the gravity of the offending.
17. I will now turn to consider the three-step test starting with the gravity of the offending.
Gravity of the Offending
18. In Lauina, and other cases, I adopted the approach in the NZ Court of Appeal decision of Z v R to assessing this aspect where it was said that:
“ when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the Court should then identify the direct and indirect consequences of a conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the Court determines that they are out of all proportion it must still consider whether it should exercise the residual discretion to grant a discharge without conviction (although as this court said in Blythe, it will be a rare case where the Court will refuse to grant a discharge in such circumstances).
The approach just outlined seems to us to fit best with the structure of s107 and to provide the most helpful framework for analysis. While we are conscious that the Court in Blythe expressly disapproved it, we do not consider the approach to be wrong in principle. What we do consider to be wrong in principle is to leave the consideration of personal aggravating and mitigating factors out of the s107 analysis and to address them only in the context of the s106 discretion. We do not see how the disproportionality analysis required by s107 can be undertaken without taking into account the offender’s personal aggravating and mitigating circumstances. However, while consideration of these circumstances must in our view be carried out in the context of s107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s107 context the precise point at which they are considered is unlikely to be material.”
19. I also follow this approach here. As I said in Ropati, I must remind myself that the assessment of the gravity of the offence is in relation to your particular offending (as in the specific facts) but not how it measures to other comparable cases or anyone else’s actions. I will start with you Levi.
20. Prosecution submitted that your offending is moderate to serious. They argue that the aggravating features of your offending include:
i) disrupting the peace of nearby residents at Tuanaimato;
ii) the need for deterrence given this type of offending is becoming prevalent in our community whereby drivers like yourselves drive on the public road or nearby residential areas screeching tyres, disrupting the peace of residents nearby, placing lives at risk and jeopardizing the lives of other road users;
iii) Seriousness of the offence.
21. Your Counsel’s submission on this aspect, focused on the mitigating factors and I will come to this shortly.
22. As I said above, reckless driving attracts a penalty prescribed by Parliament of either a maximum of 2 years imprisonment or a fine of $1000. But as I said in Ropati, the seriousness of the offence and allowable penalty by law is not the only determining factor for assessing the gravity of the offence.
23. As seen here, the actions leading to your being charged Levi is the screeching of tyres during the deceased’s funeral procession. Prosecution SOF describes this as o le moomooga alofa. Your affidavit filed in support of your application for a discharge deposes at paragraph 5 that you had volunteered with other members of your V8 club to showcase your vehicles as a tribute to the deceased who is the son of a member of your club. Your counsel submits that it was done within a controlled environment at a slow pace. He confirmed it involved the screeching of tyres with members of the family and public supporting the tribute.
24. With that background, at the calling of this matter on 12/10/18, I raised with Prosecution the issue of what was it about your driving on the road that was reckless in terms of the purpose and language of s39(1) which imputes danger and risk to the safety of other road users having regard to all circumstances of the case including the nature, condition, use of the road and the amount of traffic that might reasonably be on the road at the time? Prosecution was unable to answer this question and I adjourned the matter to today to give them a chance to respond.
25. Today I again asked Ms Afoa as to their stance on the issue and she submitted it was the screeching, making loud noise disrupting the peace. I had asked whether how does her explanation link to the purpose of s39(1) and in particular what was it about the screeching tyres during a slow-paced funeral procession that is deemed as reckless as to endanger other road users? To her credit as always, Ms Afoa tried her best to respond. Mr Vaai however naturally capitalized on the issue raised and informed that it was the very concern he had, and he had advised his clients to enter not guilty pleas. However, they did not accept his advice rather they wanted to plead guilty and take responsibility for the offence and actions of all their V8 club members who equally contributed to the noise including you Keil. However, you are not charged with this incident.
26. Consideration of the above issue is critical given this is the statutory provision the charge is brought under as in my view it is material to assessing your degree of culpability Levi (if any) and therefore gravity of the offending. For my part, I really struggled to understand how your actions here amounted to reckless driving as anticipated under s39(1) lest of all, necessitate attracting the criminal law.
27. I am inclined to say reckless driving involves something more than careless driving and doing something the driver knows involves a risk to him or herself and other road users. Lord Diplock in R v Lawrence said that reckless driving involves the defendant actually driving a vehicle in such a manner as to create an obvious risk to some other person who might be using the road and in so doing, the defendant did not have regard to the possibility of such a risk occurring.
28. Here, on the accepted facts the squeaking of tyres was during a slow paced and controlled funeral procession. Applying the description of reckless driving above and purpose of s39(1) to the circumstances here, I am inclined to say, there was no such risk to other road users. In fact if there such risk, it was remote.
29. As Samoans, our people (and other cultures alike) express their love for loved ones who pass in several ways. Funerals are emotional times for anyone. Certainly, in my day, I have seen a biker’s tribute generating a similar disturbance as here, it did not attract the intervention of the criminal law. I have also witnessed the discharging of firearm and on such occasion, the legality is never questioned as it is deemed culturally appropriate.
30. As I said above, the funeral procession was widely circulated on social media. I had seen a live video footage by Talamua Online circulated on FB on the day of the funeral. I must say when I saw it, I thought it was beautiful tribute for someone who loved cars taken tragically at such a young age. In fact, I did not see anything wrong with it. Obviously, others do not agree with my view as evident in the bringing of this criminal charge against you.
31. What I saw on the video however, were several vehicles, squeaking tyres, revving engines and moving at a slow pace on one side of the road. The other lane was still free for oncoming vehicles. But in saying that, it is customary for our people as a sign of respect to the dead to slow down our vehicles when we pass a funeral procession. For those unfortunate to be caught behind a funeral procession, it is expected that you wait patiently rather than overtaking. But I accept there will always be those who goes against the norm. It is called in our culture se’i tulou “o le au le mafaufau”.
32. Here, there was no speeding or car racing involved. Prosecution are certainly not saying there was some form of irresponsible driving for example in a showoffish zigzag manner, or swerving on to the opposite lane thereby blocking and posing a real risk to other road users. There are no articulable facts, sufficient for me to form such a view or even to satisfy me that your actions here tantamounted to reckless driving. This view is further enforced by Prosecution insistence that you broke the law here when you screeched your car tyres during the funeral procession and in so doing disturbed the peace for nearby residents. I accept your intention was genuine and not a deliberate transgression of the law.
33. In my respectful view, the charge here against you Levi should have never been brought in the first place given the circumstances. In fact, I venture further to say there is no criminal culpability on your part. At the most your actions would probably attract a civil suit for public nuisance. But as I keep saying, the charge here is not about disturbance of the peace. It is about reckless driving. Further, given the insistence of Police that the noise generated from your actions disturbed the peace for nearby residents, perhaps the proper charge should have been one brought under s69 Crimes Act 2013 for Criminal Nuisance. Another alternative is disorderly conduct in a public place under s4(g) Police Offences Ordinance 1961.
34. Despite, the above, you still insisted on taking responsibility by pleading guilty to the offence. Your remorse is genuine. You have an unblemished record and a person of good character. You cooperated with police in their investigations and held in custody overnight as a result. You are a contributing member of our community. You deposed at paragraph 11 of your affidavit you continue to work with Police to clamp out the conduct of the group of people called “boy racers” of which you are not a part. I accept you have been subjected to intense and adverse public scrutiny because of this incident.
35. Having regard to all the circumstances of your offending and my observation there is no criminal culpability on your part, I therefore conclude there is no gravity of the offending.
36. For you Keil I see your offending slightly different. You face two charges. The leading one of reckless driving is the more serious of the two. Prosecution in your SOF say that your actions of spinning tyres causing smoke on Vaea Street at Saleufi was reckless. This did not reconcile with paragraph 4.3 of Prosecution’s cut and paste Sentencing Memorandum which refers to the incident at Tuanaimato which you were not charged with. I sought clarification from Ms Afoa who was admirably quick on her feet and managed to answer this for me. She argued that the spinning of tyres on the main road emanating smoke was dangerous to other road users and this aggravated the offence. Also at the time of the offence, the vehicle was unregistered or unlicensed. I also sought further clarification from Ms Afoa as to whether it was the unlicensed (given the information does particularise the vehicle’s license plate number 10636) or the non compliance with the issuance of the annual registration within the allowable time limit which formed the nature of the s7 (1) count. She confirmed and accede to by Mr Vaai it was the latter.
37. I note from the Prosecution’s Sentencing Memorandum for you Keil, the same aggravating factors as Levi are advanced. As I said it was cut and paste. It is argued there that although no one was injured, there must be deterrence given the seriousness of the offending involving screeching of tyres disturbing the peace and posing a high risk and danger to nearby residents. Again the submission is not on point. Your counsel’s submission in mitigation was equally cut and paste and states that it was not your intention to endanger the safety of the public nor did you did it for any reason of boasting or being reckless. Mr Vaai also verbally submitted that on the date in question, after the funeral, you continued the tribute in front of the known spot at Saleufi where the deceased died. He described that you had moved as close as possible to the middle lane being mindful of the safety of other road users. I urge Counsel to be more vigilant and avoid taking short cuts when preparing submission.
38. Like the funeral procession at Tuanaimato, a live video footage taken by a patron at Georgie’s Pizza also surfaced and circulated on social media (FB) depicting your actions. I also watched that video. I am assuming from paragraph 3 of the SOF it was the same video clip from which the charge then flows.
39. As I said earlier, I see your involvement slightly different. Here, Vaea Street is one of the main artillery roads running through the centre of town. The incident took place on a Saturday, I am unsure of the time but it is fair to say it might have been busy. It is undisputed the vehicle was stationary. I do not know which tyres were spinning, but, it appears that you would have had to accelerate heavily, revving the engine, causing the tyres to spin and smoke to emanate from the tyres. There is nothing to suggest the incident left tyre tractions. Had there been any I am sure Police would have said so. Does this amount to recklessness? What I said above applies here. Your conduct could have equally amounted to criminal nuisance and disorderly conduct in a public place.
40. But even if it was reckless, all involved acceded there was no injury or impact on other road users. I accept what Prosecution said there was disturbance of the peace but as I said that is not the charge here. I take into account the brevity of the action and minimal impact it had. I also accept that at the time of the incident you had moved the vehicle as close to the middle lane to allow for the flow of traffic to the town clock direction to continue. There is no suggestion that after the tyre spinning, you then engaged in a race which would have definitely aggravate matters, rather you drove away. I accept it was part of your tribute. But in hindsight, it was really unnecessary given you had already participated in the funeral procession. At the time, the vehicle was unregistered. I had asked your counsel whether what was the story there and he informed the vehicle had just been fixed and during this time the registration expired. The vehicle remains unregistered to date.
41. In your favour, I accept you intended no harm to anyone and such harm did not arise other than the disturbance of the peace and your conduct being disorderly. You rejected your lawyer’s advice and decide to take responsibility for your action by pleading guilty. You are also of good character and a contributing member of the community and pay your taxes. Like, your friend Levi, you have been subjected to public ridicule and criticism and taken the brunt for the actions of those known as “boy racers”. You cooperated with Police and working with them to stamp out the boy racer group who continue to be a nuisance on the roads.
42. Considering all the circumstances, I view the gravity of your offending to be on the lowest end of the scale. I will now consider the second step of the test.
Consequences of a Conviction
43. As I said in Lauina and more recently Ropati, the threshold test for the consequences to be taken into account was explained in the NZ High Court case of Iosefa v NZ Police where the Court there observed that:
“…It is not necessary for the Court to be Satisfied that the identified direct and indirect consequence would inevitably or probably occur. It is sufficient that the Court is satisfied there is a real and appreciable risk that such consequence would occur”.
44. As I said in Ropati, there is no onus of proof on the accused. The test is simply the Court must be satisfied. It is expected however that those seeking a discharge should place before the Court sufficient information to support this.
45. You each deposed in your affidavits that a conviction, would impede your businesses especially your ability to travel overseas given the requirement to declare a conviction. You both say you travel frequently on business trips to source materials and for other purposes. Prosecution reject this saying there is no such risk to your business. But in terms of hindrance to travel and immigration status, they rely on the NZ High Court case of Zhang v Ministry of Economic Development which endorsed the approach that it was best to leave such decisions to the appropriate authorities rather than the Court pre-empting that decision making process by a discharge without conviction. As I said in Robbles, I am very much aware of subsequent cases in NZ where this approach was not followed and as said many times, each case depends on their peculiar facts.
46. Levi you also depose that you have an ill child in Australia who suffers from a coma due to severe head injuries and this year you travelled multiple times to visit him and check on his recovery process. Keil, you said that part of your business requires your traveling overseas for conferences and a conviction would mar your ability to do so.
47. On the material before me, I accept that the risk of your travel (both of you) being hindered is a real and appreciable one. I say this because unlike NZ passports which allows automatic entry to almost every country, Samoan citizens do not enjoy the same benefit. There is also our remote geographical location and obvious disadvantages. I also refer to more severe cases where travel was considered an impediment out of all proportion to the gravity of the offending. In my practice at the Bar, an accused charged with manslaughter got off with a discharge without conviction. Also in the case of P v Fepuleai, there, the accused was charged with committing actual bodily harm with intent and armed with a dangerous weapon. She denied the charge and the matter went to trial where she was found guilty. During her sentencing Justice Vaai accepted that she travelled quite frequently to visit her children and grandchildren who resided overseas and a conviction will be hinder her ability to do so. She was discharged without conviction but ordered to pay $1000 court costs. There are also traffic related offenders who have gotten off with discharge without conviction on the same ground of travel impediment hindering the ability of the accused to promote their businesses overseas, such as the case of P v Vaai and P v Annandale.
48. You are both successful businessmen in your own rights and have established good reputation in our local community and abroad. I accept you travel quite frequently. I am satisfied there will be adverse consequences of a conviction to your ability to continue to do so. This is not just conjecture or some fanciful speculation. There is a real and appreciable a risk such consequence may well occur.
Are the Consequences of a Conviction out of all Proportion to the gravity of the offending?
49. I say yes. The consequences of a conviction are definitely out of all proportion to the gravity of the offending and you have met the 3 step test. I now turn to consider whether the residual discretion under s69 ought to be granted.
Should you be discharged without conviction?
50. As recognized in NZ case law and likewise in Ropati, it would be very rare if after an accused passes the 3 step disproportionality test and a discharge without conviction is not granted.
51. In my respectful view, there is no better case that suits such a decision that your case here especially for you Levi. As I said in Ropati and a few of my other cases of this nature, in assessing this step the Court must have regard to the purpose and principles of sentencing in sections 5 and 6 SA. This is particularly applicable to you Keil.
52. In the wake of the terrible incident which untimely took the life of the deceased, Police came down hard on boy racers and those who continue to engage in screeching tyre activities around town and near residential areas. I am well aware of the background and circumstances of the death of the deceased as I was the Coroner who dealt with his body and privy to information the attending Officer relayed. From that information I was informed that the deceased had travelled at high speed on Vaea Street lost control of the car and crashed into the electric post. There was evidence that he was racing with another vehicle. It is a known fact that he was part of a group referred to as “boy racers”. It made sense, the deceased loved cars.
53. It became obvious that you are both aligned as part of the boy racers group. But this is clearly a wrong as you deposed in your affidavits you are not and that the V8 Club is not one an the same as the boy racers. There is no material before me to suggest a history of irresponsible driving or your partaking in any dangerous car racing activities. You also say you are working with Police to clamp down those known as boy racers.
54. Prosecution in their submission argue that deterrence of this type of behavior and the need to issue a stern warning is crucial to protect the community. I totally agree. There must be general deterrence as opposed to subjective for the simple reason that there is no likelihood of reoffending on your part. I believe you when you say you have learnt a hard lesson from this bad experience and have suffered hardship and humiliation as a consequence.
55. Having said that, it is equally important that Prosecution carefully consider the appropriate charges to bring and to fairly prosecute any accused with neutrality and independence. I appreciate the Prosecution have the sole discretion to Prosecute. But if justice is to be effectively served, it is crucial that proper charges fitting the evidence Prosecution propose to rely on be filed. This is certainly not a criticism on the Prosecution as I can understand why they thought that reckless driving here especially for you Levi was the appropriate one given our current legislative framework. But I think it is timely we correct this common mistake that seems to be popping up often in charges to do with screeching tyres.
56. I note in other jurisdiction they have specific legislative provisions for offences such as exhibition of acceleration whether it be in competition with one another (as in a race) or not, disturbance by motor vehicle and operating a motor vehicle in a manner causing sustained loss of traction. The circumstances of the offending here would have fitted one of the above but unfortunately this is unavailable.
57. This brings me to the next crucial point. This case brings to the fore the shortfalls in our current traffic legislation which does not specifically cater for incidents of this nature. Law making is clearly the job of Parliament. I have no business going there suffice to say these are changing times and it is crucial our laws be updated to cater for these situation.
58. Levi given the circumstances of the allegation against you and reasoning canvassed here, you are therefore discharged without conviction without any further orders.
59. For you Keil, you are ordered to pay forthwith Court costs in the sum of $200. You are to present the proof of your payment to my Court Registrar to confirm this and upon receipt, you will be discharged without conviction.
60. A discharge without conviction pursuant to s69 (2) SA as here, is taken to be an acquittal.
JUDGE ALALATOA R VIANE PAPALII