Police v Aiono [2007] WSSC 8 (19 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SAM AIONO
male of Fasitoo-uta and Faatoia
Accused

Counsel: P Chang and L Su’a for prosecution
TRS Toailoa for accused

Sentence: 19 February 2007

SENTENCE

The accused, who is now 50 years old as shown from his date of birth which appears in his pre-sentence report, is appearing for sentence on the charge of wilfully causing grievous bodily harm without lawful justification. To the charge the accused initially pleaded not guilty, but after a number of adjournments for the matter to proceed to trial, the accused changed his plea to one of guilty.

As it appears from the summary of facts prepared by the prosecution, on Tuesday, 10 December 2002, a party was held in the evening at the home of the accused at Faatoia. In the course of the party, rocks were thrown at the roof of the accused’s house. The accused then retrieved a rifle from inside his house and went outside to his car and drove it to the house of the victim which is about 300 metres away. The accused did not deny this part of the summary of facts when he was asked whether there were any parts of the summary of facts that he did not confirm. However, when he gave oral evidence in relation to those parts of the summary of facts which he did not confirm, he said that the gun was kept in his car for use at his cattle farm but he did not retrieve it from his house before he went to the victim’s house. I do not find this to be credible. I accept what is in the summary of facts. In any event, on the basis of the oral evidence given by the accused he must have known that there was a gun in his car before he drove off to the victim’s house.

As it further appears from the summary of facts, when the accused arrived at the victim’s house he parked his car at the front. He then began shining a flashlight in the direction of the victim’s house. He also began questioning passersby about who had thrown rocks at his house. At that time, the victim, who had been inside his house, came out to lock the gate to his house and saw people crowding on the road in front of his house. He then approached the accused’s car to see what the matter was. When he came up to the driver’s door of the car, the accused blamed him for throwing stones at his house. This was denied by the victim.

Parts of the account given in the summary of facts were denied by the accused. In consequence, I ordered the prosecution and the accused to call evidence on those parts of the summary of facts.

According to the victim, who is 29 years and also from the village of Faatoia, when he came up to the driver’s door of the accused’s car, he talked with the accused. He did not see a gun in the car at that time. The accused asked him whether it was him who stoned his house and he replied no. The accused then opened the driver’s door of his car. As the accused was coming out of his car, he was holding a gun and pointing it downwards to the ground. At that moment, the victim was standing outside next to the driver’s door where the accused was coming out. The accused then discharged the gun while he was pointing it to the ground. As it happened, the victim’s left big toe was injured. The victim further testified that the accused then cocked the gun again but he then grabbed the gun and tried to wrestle it from the accused. He then fell to the ground and the accused struck him on the left eye with the butt of the gun. A witness by the name of Meafou Tiperia who is also from the village of Faatoia, was called by the prosecution to testify. He said that he was present at the scene of this incident but he did not know where the gun was aimed when it was discharged by the accused. He then heard the gun being cocked again but it was slapped off by the victim.

The accused also gave evidence. He said that he did not discharge the gun. It went off accidentally. I do not accept this evidence. Before the accused left his car, he was obviously very angry at the person who had thrown rocks at the roof of his house where a party was being held. He was also under the influence of alcohol. His behaviour when he arrived at he house of the victim shows that he was still very angry. This was to be expected given the stoning of his house. His being under the influence of alcohol did not assist him to control his anger. When the victim approached his car, he accused the victim of throwing stones at his house. He then picked up the gun which was inside the car opened the door of the car and the gun went off. The victim and the witness Meafou Tiperia both testified that the accused cocked his gun again. In these circumstances, the reasonable conclusion to draw is that the accused deliberately discharged the gun while it was being pointed downwards to the ground.

The accused is also charged with wilfully causing grievous bodily harm without lawful justification and he is being represented by experienced counsel. If it is true that the gun went off accidentally, then it is arguable that it was not wilful. The not guilty plea originally entered by the accused should, perhaps, have been maintained. But that was not so. A guilty plea was substituted for the original not guilty plea.

After the victim was shot, he was taken to the hospital at Motootua. A report by the surgeon who treated the victim show that a small bone of the victim’s left big toe was shattered and exposed. There was also extensive loss of skin and tissues in that area of the victim’s body. A laceration was also found on the victim’s right eyebrow. An operation was carried out on the victim’s toe and it was successful. In consequence, the victim’s injured big toe is grossly shortened but still viable. The victim in response to a question from the Court whether the injury is still affecting him said no.

While the victim was at the hospital, the accused visited him and gave him $600. When the victim was discharged from the hospital, the accused paid for his airfare for medical treatment in New Zealand. The victim also confirmed during his evidence that the accused and his family had performed a ifoga which was accepted by his family so that this matter has been reconciled. At the ifoga, the accused and his family presented $4,000 cash, 30 – 40 cases of tinned fish, and three large fine mats.

As it also appears from the pre-sentence report, the accused is a prominent businessman in the country. He is a qualified electrical and regrigeration engineer. He owns and runs an electrical and refrigeration company. His company has twelve employers. The pre-sentence report and the testimonial from the Member of Parliament for the accused’s constituency as well as the testimonials from the pulenuu and pastor of his village of Fasitoo-uta also show that the accused actively supports and makes substantial financial contributions to the development of the youth of his village in rugby as well as to the affairs of his village and church. He is a deacon of his church. He is also a first offender and had been a person of good character prior to the commission of this offence.

The pre-sentence report also shows that the accused is married with four children. He suffers from a serious illness, not necessary to mention here, which requires him to travel to New Zealand regularly for medical check ups and treatment.

In passing sentence, I take into account in mitigation of penalty the fact that the accuse is a first offender and that he had been a person of good character prior to the commission of this offence, the ifoga he and his family had performed and accepted by the family of the deceased so that this had been reconciled, the substantial presentation which accompanied the ifoga, and the fact that he had the decency to visit the victim while in the hospital and gave him $600 and then paid for the victim’s airfare to travel to New Zealand for further medical treatment. I would give only limited discount for the accused’s delayed plea of guilty. I also take into account the fact that the accused is suffering from a serious illness which requires him to travel to New Zealand regularly for medical check ups and treatment. Furthermore, even though the injury suffered by the victim was serious, the victim said it is not affecting him now. On the other hand, I must also take into account the seriousness of the charge, the seriousness of the offending, and the danger of what was involved in the accused’s actions.

In passing sentence, it must be noted that an assault in the nature of the assault in this case would usually call for a term of imprisonment. However, having regard to the mitigating features and other matters mentioned in the pre-sentence report about the accused, I have decided to impose a monetary fine.

The accused is convicted and fined $2,500.00

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Toa Law Firm