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Vaaulu v Attorney General [2023] WSCA 6 (27 November 2023)

IN THE COURT OF APPEAL OF SAMOA
Vaaulu v Attorney General [2023] WSCA 6 (27 November 2023)


Case name:
Vaaulu v Attorney General


Citation:


Decision date:
27 November 2023


Parties:
LEULUAIALII SELESETINE ROSEMARIE VAAULU (Appellant) v ATTORNEY GENERAL (Respondent)


Hearing date(s):
21st & 22nd November 2023


File number(s):
CA14/23


Jurisdiction:
Criminal


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Justice Fisher
Justice Blanchard
Justice Young


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal against sentence is allowed. The sentence of 10 months imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm under s 118(1) of the Crimes Act 2013 is quashed. A sentence of 3 months imprisonment is imposed in its place.

We confirm the sentences of 3 months imprisonment on the charges under s 25 of the Police Offences Ordinance 1961 and s 9 of the Arms Ordinance 1960 concurrent on all other sentences. They will stand.

We also confirm the discharge without conviction on the charge under s 15 of the Arms Ordinance. It will also stand.

The result is that the appellant was required to serve a total sentence of 3 months’ imprisonment. The appellant has already completed that sentence. She may now leave this courtroom as a free woman.


Representation:
T Leavai for the Appellant
L I Atoa and T Fesili for the Respondent


Catchwords:
Appeal against sentence – self defence – defence of another.


Words and phrases:


Legislation cited:


Cases cited:
Attorney General: v Vaiola Lesa [2019] WSCA 10;
Nauer v Attorney General [2021] WSCA 8;
Police v Lima [2014] WSSC 31;
R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.


Summary of decision:

CA 14/23


IN THE COURT OF APPEAL OF SAMOA


BETWEEN:


LEULUAIALII SELESITINA ROSEMARIE VAAULU


Appellant


AND:


ATTORNEY GENERAL


Respondent


Coram: Justice Fisher
Justice Blanchard
Justice Young


Hearing: 21 and 22 November 2023


Counsel: T. Leavai for the appellant

LI Atoa and T Fesili for respondent


Judgment: 27 November 2023


JUDGMENT OF THE COURT

Introduction

  1. This is an unusual case about a woman who shot and wounded a young man in circumstances so extraordinary that they are unlikely to be repeated. For that reason it is unlikely to serve as a useful precedent when dealing with other cases involving the use of a firearm.
  2. The appellant pleaded guilty to four charges:
  3. On 24 August 2023 she was convicted and sentenced to 10 months’ imprisonment less time in custody on the first of those charges, 3 months’ imprisonment on each of the second and third charges, all sentences to be concurrent, and convicted and discharged on the fourth charge.
  4. In this Court the appellant appeals against sentence. She had initially appealed against conviction as well but that appeal is no longer pursued.
  5. Much of this judgment is concerned with self-defence and defence of another. In the interests of brevity those defences will be referred to as “SD and DOA”.

Factual background

  1. In this Court the following facts were not disputed except where stated.
  2. In 2013 litigation began in the Lands and Titles Court (LTC) between two families, one the family of the appellant and the other that of the victim. The litigation concerned lands at Solaua. The LTC upheld the claims of the appellant’s father, Jason Lavea, to preside over the lands. In 2017 the LTC also upheld his claim to have and use the title Tagaloamatua of Solaua and Manunu. The victim’s family were unhappy with the LTC decisions. From then on there was discord between the two families.
  3. The 57-year-old appellant and her 69-year-old husband, Sapau, lived in their family house at Solaua (the Solaua house). In July 2019 part of the house was destroyed by fire. The present victim was charged with arson. That prosecution is still to be heard. He was 27 years old at the time.
  4. Three months later the appellant was returning home from Apia in her vehicle. With her were her 9-year-old daughter and 13-year-old niece. They were returning home from school.
  5. The appellant and Sapau had placed white-painted decorative rocks along the verges on each side of the road in front of their house. As the appellant approached she saw a group on the road throwing the rocks aside. The victim was one of the group. The appellant got out of the car and complained. A heated argument followed. What the group then said and did is in dispute. The appellant drove off and did not immediately return.
  6. The appellant returned to the house with her husband, Sapau, between 5:00 pm and 6:00 pm. Fearing further trouble from the group they telephoned the Police to ask for help.
  7. The Police had not arrived by the time the group of young men returned at about 7:00 pm. The young men were standing around the entrance to the driveway of the house. The appellant says they were shouting threats and throwing stones at the house. It is unclear whether that is disputed. It is agreed that the appellant stayed inside the house with her 9-year-old daughter. Sapau took some plastic pipe and went out to confront them.
  8. There is a dispute over what followed. But it is clear that in the course of an argument Sapau struck the victim on the upper arm with the plastic pipe and that the victim then felled him to the ground. The violence took place at the driveway entrance to the house.
  9. From inside the house the appellant saw her husband on the ground with the young men standing over him. She fetched a loaded pump action 22 rifle from a storage building nearby and rushed out. Again there is a dispute as to what followed. But it is clear that she fired at least one shot into the sky followed by a number of other shots. One of her shots struck the victim in the left side of his left buttock. Three of his group helped him to flee. The appellant says others in the group continued throwing stones at the house. She managed to get Sapau back to the house where they waited for the Police to arrive.
  10. The victim was treated at the hospital and discharged on the following day. The shot to his buttock left a bullet embedded in the thigh bone. It is not medically advisable to remove it. The victim reports pain at the site of the injury when walking too far.

Proceedings in the Supreme Court

  1. The appellant was charged with attempted murder in addition to the four charges listed. She initially pleaded not guilty to all charges. Later when the prosecution agreed withdraw the charge of attempted murder she pleaded guilty to the four remaining charges.
  2. In preparation for sentencing, the prosecution prepared a summary of facts. After discussion the prosecution prepared an amended version of 3 April 2023. It relevantly stated:
  3. This version did not include most of the facts that would have been relevant to SD and DOA. The appellant’s then lawyer did not seek to have further facts added. Nor did he object to anything in the summary other than paragraphs 8 and 13.
  4. A disputed facts hearing was held at which evidence was given by the victim and the respondent. In the ruling that followed the Judge concluded that both of the contested paragraphs had been proved beyond reasonable doubt. Paragraph 8 was immaterial but paragraph 13 was critical. Among his reasons for rejecting the appellant’s evidence on that aspect he said:
  5. In his subsequent reasons for sentence the Judge said:

The aggravating factors of your offending are:

(i) your use of a firearm to shoot the victim;
(ii) the vulnerability of the victim who was unarmed at the time; and
(iii) the injuries suffered by the victim, noting these however are not life threatening

In terms of your offending, I accept as mitigating that in part, you were acting in defence of your husband Sapau. As a result of Sapau’s complete stupidity confronting the victim and his friends and striking the victim with a pipe, Sapau was punched, fell to the ground and was surrounded by the victim and his male friends. You acted to defend him, but went too far (R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [32])

  1. After referring to other relevant factors, the Judge made discounts for the effort to protect Sapau, good character, remorse, the lengthy bail on conditions, ifoga, personal circumstances and the late guilty plea. That took him to the end sentence of 10 months’ imprisonment and other concurrent penalties.

The appeal

  1. The appellant’s grounds of appeal against sentence were variously expressed but can be considered under the following headings:

What facts should be accepted for sentencing purposes?

  1. The appellant’s evidence at the disputed facts hearing included the following:
  2. Ms Atoa warned us against uncritically accepting the appellant’s account for sentencing purposes. We agree. Having heard the evidence of the victim and the appellant the Judge rejected the appellant’s version of the shooting episode itself. That conclusion was reinforced in this Court by broad indications as to the evidence the prosecution would have relied on had the case proceeded to a defended hearing. The sentencing had to be approached on the basis that “the victim and his friends attempted to flee, the defendant ran towards them discharging the said firearm whilst pointed at the victim.”[1]
  3. On the other hand we heard nothing that would persuade us to reject the rest of the appellant’s account. Importantly, it included much material that was relevant to SD and DOA. Those facts ought to have been highlighted during negotiations over the summary of facts and, if disputed, determined at the disputed facts hearing. That process was available to the defence as well as to the prosecution.[2] Because the process was not followed at a formal level, and followed by detailed argument, its importance may have been underestimated by the Judge. For present purposes we will assume that her sworn evidence as to the facts relevant to SD and DOA should be accepted except for her account of the shooting episode itself. We approach the sentence appeal on that basis.

How close do the accepted facts come to SD and/or DOA?

  1. By the end of the hearing before us the appellant had elected not to pursue her appeal against conviction. For that reason it is unnecessary to consider the intricacies of SD and DOA under the antiquated provisions of s 17 of the Crimes Act. For present purposes the matter can be approached by asking three broad questions. As Ms Atoa helpfully put it, the three questions are:
  2. As to (a), the circumstances as the appellant believed them to be can be summarised as follows:
  3. As to (b), we accept that when she left the house with the rifle her purpose was SD and DOA. No other purpose has been suggested.
  4. It is at question (c) that the appellant faces difficulty. If the case had gone to trial the prosecution would have had a strong case that the force used was not reasonable even in the circumstances as she believed them to be. She fired multiple shots at least one of which was pointed at the victim. As the Judge said, she acted to defend her husband but went too far.
  5. Although the appellant used excessive force she is entitled to have three considerations taken into account for sentencing purposes:

What part should SD and DOA now play in arriving at the sentence?

  1. We would not criticise the way in which the Judge arrived at the sentence of 10 months’ imprisonment based on the case as it was presented to him.
  2. However in this Court there has been a much greater focus on the facts and law relating to SD and DOA. Although the use of excessive force will prevent the full defence of SD or DOA at trial it can still play a major part in mitigating the sentence.[6] As was said in Taueki:[7]
  3. For the reasons outlined earlier we think that the extraordinary circumstances in this case warrant an extraordinary reduction from an otherwise appropriate sentence.

What sentence is now appropriate?

  1. The Judge’s sentencing conclusions were expressed as follows:
  2. We adopt the Judge’s general approach. The only adjustments we would make are to substitute a deduction of 12 months for the SD and DOA instead of 6 months and to substitute 4 months for the guilty plea instead of 3 months. On the latter point there was no delay in the entry of a guilty plea once the prosecution withdrew the charge of attempted murder.

Result

  1. The appeal against sentence is allowed. The sentence of 10 months imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm under s 118(1) of the Crimes Act 2013 is quashed. A sentence of 3 months imprisonment is imposed in its place.
  2. We confirm the sentences of 3 months imprisonment on the charges under s 25 of the Police Offences Ordinance 1961 and s 9 of the Arms Ordinance 1960 concurrent on all other sentences. They will stand.
  3. We also confirm the discharge without conviction on the charge under s 15 of the Arms Ordinance. It will also stand.
  4. The result is that the appellant was required to serve a total sentence of 3 months’ imprisonment. The appellant has already completed that sentence. She may now leave this courtroom as a free woman.

JUSTICE FISHER
JUSTICE BLANCHARD
JUSTICE YOUNG

[1] Summary of Facts para 13.
[2] Sentencing Act 2016, s 17(2) “If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other ...”
[3] Nauer v Attorney General [2021] WSCA 8 (1 June 2012); Police v Lima [2014] WSSC 31 (30 May 2014) at [36].
[4] Nauer v Attorney General, above.
[5] Attorney General v Vaiola Lesa [2019] WSCA 10 at [25].
[6] Vaiola Lesa at [25]; R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [32].
[7] Taueki at [32].

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