Police v Tiapu'u [1999] WSSC 6 (24 June 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SIMONE TIAPU’U
of Matatufu, Aleipata, Lotofaga
Defendant

Counsel: Mr Leung Wai & Mr Schuster (Junior) for Prosecution
Mrs R. Drake for the Defence

Hearing Date: 24 June 1999

SENTENCING REMARKS OF WILSON J.

A CASE OF MANSLAUGHTER

You are a 41 year old married Samoan man with 6 dependant children, the oldest of whom is 13 years of age.

PLEA OF GUILTY TO INVOLUNTARY MANSLAUGHTER

You were originally charged on information with murder, to which charge you pleaded Not Guilty. But I permitted the prosecution to amend the information by changing the charge to one of manslaughter. You then pleaded guilty to the amended charge, and so you now stand convicted of manslaughter (what the law calls involuntary manslaughter).

By your plea of Guilty you acknowledged that at Matatufu Lotofaga (which is your village) on 27^th February 1999 you, by an unlawful act, namely discharging a firearm at Petelo Vaifale caused the death of the said Petelo Vaifale, male of Leauvaa, thereby committing the crime of manslaughter.

The circumstances of your crime were as follows:- It was not a premeditated crime. You were very upset (and exasperated) because you believed that someone had been stealing coconuts from your land and damaging your paddock. On the day in question you saw two men on your land whom you believed were offenders. When they did not hear you or take any notice of your calling out, you aimed your firearm (which you had been carrying for a legitimate farming purpose) “towards the place to where they were walking”, presumably to frighten them and make them stop. You fired one shot. You did not intend either to kill or to cause serious bodily harm to either of them. But what you did was an unlawful and dangerous act.

Tragically, the bullet struck and killed the deceased. He did not die immediately, but he died shortly afterwards in your arms.

This was a serious wrong you did. You should not have taken “the law into your own hands” by using a firearm. I repeat that this was an unlawful and dangerous thing you did.

In the recent case of Police v Chris Phillip dated 21 April 1999 I had reason to discuss some of the sentencing principles that apply in cases of manslaughter. I do not intend to repeat what I said at that time in that unusual and exceptional case. I merely add, in the context of this case, that unlawful dangerous act manslaughter (as this is) and negligent manslaughter are categories of involuntary manslaughter which are to be seen, generally, as less serious forms of manslaughter than the case of murder reduced to manslaughter on account of the offender’s response to provocation by the deceased victim or on account of self defence to an excessive degree (both forms of voluntary manslaughter), where there is, in each instance, a clear intent to kill or to cause bodily harm.

In an Australian case bearing some similarities to this one^[1], the Court of Criminal Appeal in Victoria said (at p.35):

” ...... the applicant did not intend to kill his son or to do him serious bodily harm, but had killed him by firing a gun in circumstances where the firing of the gun was an unlawful and dangerous act... On that basis it is to be said that this was a form of manslaughter which would come at the lower end of the scale of punishments for manslaughter.”

I do not overlook what the Court of Appeal of Samoa said in 1992 about sentencing for manslaughter (and, in particular, for voluntary manslaughter where there was provocation) in the case of Faafua (Vili) v Police (1980-1993) WSLR 550.

The starting point for the sentence that is appropriate for you is 4 years imprisonment.

You are entitled to some leniency (I can show mercy to you to the extent of reducing your sentence by 1/3^rd) because you pleaded guilty immediately after the charge in the information was amended and you have shown positive indications of remorse, including the payment of compensation and then making the highest form of traditional IFOGA and the payment of a substantial fine (of 5 cattle, 5 sows, 10 large fine mats, 20 small fine mats, 100 loaves of bread and 10 packets of biscuits) which represents punishment in itself, and you gave yourself up to the police (you thereby co-operated with the police).

I have read the Pre Sentence Report prepared by the Probation Service and the several favourable testimonials attached thereto, including one from Fonoti Lui Brown, the paramount chief. I have listened to the powerful submissions of your lawyer, Mrs Drake, and I have heard the speech of VAIFALE - the deceased’s matai chief. I can increase the leniency (or mercy) to ½.

I note that you have been in custody since the 27^th February 1999 and I will take account of that.

You have no relevant or recent previous convictions. I can (and should) treat you as a first offender.

There are some crimes of violence when actual imprisonment must be ordered even in the case of a first offender (I treat you as one), even in the case of a man of previous good character (as you are), even in the case where the offender is remorseful (as you are), even in the case where a traditional apology (IFOGA) has been made and accepted and where compensation has been paid, even when the notion of restorative justice has already been recognised quite fully (as has happened here), and even in a case where there are many dependents who will be adversely affected by your imprisonment (as is the case here). This is such a crime.

The sentence of the court is that you be imprisonment for a term of two (2) years, such sentence to take effect from 28^th February 1999.

JUSTICE WILSON

---

^[1] Pellizzeri 1982 (8 A Crim. R 31.