Police v Liligia [2007] WSSC 101 (9 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SANI TAFEA LILIGIA,
male of Matautu Lefaga.
Defendant

Counsels: M. Zarifer & L. Petaia for prosecution
TRS Toailoa for the defendant

Hearing: 11th, 12th, 13th June 2007 & 2nd July 2007
Sentence: 9th July 2007

SENTENCING REMARKS OF NELSON J.

After a defendend hearing, the accused was found guilty by a panel of assessors of the crime of manslaughter which carries a maximum penalty of life imprisonment.

The question for the court today is to impose a sentence for this crime but as this court also sits as a Coroners Court to inquire into the cause of death of the deceased, I will first render the Coroners verdict. After hearing the evidence in this matter I am satisfied that the deceased Pasame Tauinaola a male 32 years of Matautu Lefaga, died on the night of the 29th March 2005 at Matautu Lefaga. His death was as a result of a gun shot wound to the chest inflicted by the accused in this matter Sani Tafea.

The evidence in this case is clear as was heard by the assessors. Sani is the adopted nephew of the deceaseds wife and had been raised in Matautu Lefaga by his adopted parents. The deceased is from another village and had married the accuseds aunty a female of Matautu Lefaga. The evidence showed that the deceased had been engaged in a number of extra-marital affairs which had caused embarrassment to the accuseds family. At the time of the shooting the evidence indicated the couple were separated but the deceased had returned to the village a few days earlier and was staying at his cousins place, which is where the tragic incident took place. There is no question the accused was angry at the deceased because of the deceaseds conduct and on the night in question he threatened to do something and even said to one witness that he would "lama" the deceased. The accused went to his house, obtained a 22 calibre rifle, loaded it and went to where the deceased was. He shot at the chest area of the deceased and the deceased must have been side-on to the accused because the bullet entered from the left side of his back. The bullet fractured some bones, perforated a major blood vessel and entered the lungs where it was retrieved at a post mortem examination by the pathologist Dr. Rahman. The cause of death was massive internal bleeding and shock caused by the gunshot wound.

The accused was originally charged with murder and on the facts that I have just related, I withdrew from the assessors for legal reasons the defence of provocation but it was made clear to them that a verdict of manslaughter was still available if they were not satisfied as to the accuseds intent. The assessors heard the evidence and returned a verdict of guilty of manslaughter.

Prosecution in their submissions for sentencing now urge the court to treat this case as one being "as close to murder as one might get." They rely on two authorities: the New Zealand Court of Appeal in R v. Wickliffe [1986] NZCA 444; (1986) 2 CRNZ 310 and a decision of the same court in R v Leonard CA 269/95 dated 9th September 1995. In Wickliff, the Court of Appeal reduced the murder conviction of the appellant to manslaughter but allowed his life imprisonment sentence to stand. The other case cited R v Leonard was a domestic violence killing where a sentence of 15 years was upheld by the Court of Appeal.

I have considered but have some difficulties with the prosecution argument. Wickliffe was acknowledged by the Court to be an unusual case, indeed Lord Cooke in delivering the judgment of the court at page 62 said:

"We come then to another very difficult part of the case. It is trite to say that manslaughter varies greatly in gravity perhaps more so than in any other crime in the calendar. Generalizations about sentencing for it are recognized to be unwise.";

and at page 64 he says:

"While the gravity of the particular crime of manslaughter must be the main factor in sentencing, the personal characteristics and circumstances of the offender are secondary factors that also have to be considered. Here again the present case is unusual and difficult."

Wickliffe itself is a case of a robbery gone wrong resulting in a killing. As for the other case cited by the prosecution R v Leonard, that is also a case of special circumstances. That was a case of a killing by a man of his wife as "the culmination of a long series of disputes between them and in particular episodes of abuse and violence that day" committed by him on his wife. That also involved a case of a particularly savage attack on the wife by the husband using a knife. The Court of Appeal probably quite correctly upheld the trial judges sentence of 15 years imprisonment. It will be seen that the factual situations of both cases relied on by the prosecution are quite different from the present matter.

The third difficulty I have with the submission is I am conscious of the fact that the assessors verdict was one not of murder but of manslaughter. I do not believe it is the courts function to try to usurp or erode that verdict by sentencing the offender on any basis other than that of the crime of which the assessors found him guilty. But the sentence must of course reflect the seriousness of the offending, the personal circumstances of the offender and other relevant matters.

I come now to an appropriate sentence. This is a matter involving the use of a firearm by one human being to kill another. I have been unable to find any recent (i.e. in the last 5 years) reported cases of sentencing involving manslaughter by firearms. So in a sense, this case may establish some sort of benchmark for such offending. In this regard, I take note of two very relevant matters: Firstly, cases of firearm offending coming before the courts in particular in the District Courts where such offences are normally prosecuted has risen sharply in recent times. The involvement of firearms in general offending has also increased to the extent that one of the measures taken by the Police of this country to try and combat the problem was offering amnesties for illegal or unlicensed firearms. Parliament obviously is also concerned about this growing problem as it took steps in 1999 to review upward the penalties for firearms offending under the Arms legislation. This followed the high-profile killing of a Cabinet minister by two of his fellow ministers. Parliaments response was to increase penalties under the Arms legislation dramatically, e.g. possession of an unlawful weapon went from 3 months imprisonment or a $200 fine to 5 years imprisonment or a $10,000 fine. Last year Parliament again increased the maximum fine from $10,000 to its present limit of $25,000

This clearly reflected a concern on their part about the prevalence of firearm offending and the courts have responded by imposing severe penalties and taking a strict approach on offenders appearing before it on firearms related charges. The present case is as serious as a firearm offending case can be, here a firearm was used to commit a homicide. And it was used by an offender who the evidence showed was well conversant with the firearm in question because he had used it on previous occasions to shoot pigs and to shoot pe'as (bats).

The need for a deterrent sentence is in this background a significant consideration and factor the court must have regard to and the sentence must reflect that as well as the seriousness of the offending.

The aggravating factors in this case include the fact that this was a pre-meditated act of the accused in that he carried it out a certain amount of calculation and deliberation. The evidence is that just before the killing he made certain threats to do something to the deceased. One witness said that the word used was to "lama" the deceased. He went to his house and retrieved the weapon from under the bed and loaded it. He then went to where the deceased was and in shooting at the deceased clearly targeted the trunk of the deceaseds body. There can be no other inference to be drawn other than this was a deliberate and callous move to kill the deceased as retribution for the deceaseds behaviour.

However the court must also have regard to the factors that are in the accuseds favour, factors in mitigation. And these include firstly the fact that he is a first offender and that this offending appears to be out of character. He is a young man, 27 years of age having an average level of education, and as with many young men renders tautua to his family. It is clear from the pre-sentence report that he is well thought of by his family and members of his community. It is clear from the evidence that after the shooting occurred he voluntarily turned himself in and gave the police later that night a full confession of these tragic events. He has been banished by the village council of Matautu Lefaga from the village because of this incident. That factor is most relevant plus the fact that a significant fine was paid by the accuseds family to the village council. An ifoga was done as per our tu and aganuu (custom and tradition) to the deceaseds family and this was accepted. Also accepted was the accuseds apology to the defendants wife his aunty, who has stated to the probation office that she seeks leniency for this young man. I accept his counsels submission that great weight should be attached to these cultural aspects and the court also accepts that although as a matter of law the provocation defence is not available, there was a cultural provocation of sorts playing a part in the accuseds offending.

The taking of a persons life is a most serious if not the most serious offence at law. The court accepts and has seen that the accused is remorseful for this incident. The courts accept that there are many factors Sani in your favour as referred to. But the need for an unequivocal statement from the court about homicide involving the use of firearms must be made. There must be no doubt in the public mind that the use of firearms for this sort of offending will receive stern treatment. The need for deterrence in my view outweighs all other factors.

The maximum penalty for manslaughter as stated is life imprisonment. This is not an appropriate case requiring a maximum penalty and an appropriate starting point given all the circumstances is a term of 15 years imprisonment. As stated however there are factors in your favour Sani in particular those that have been referred to by your counsel and the probation office and which I have attempted to cover in this sentencing. Accordingly you are convicted and sentenced to a period of 10 years imprisonment.

JUSTICE NELSON