Police v Papalii [2007] WSSC 90 (30 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

AMBY TOIALEVAO PAPALII aka AMETO PEREZ
male of Vaigaga.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Su’a for prosecution
D Clarke for accused

Sentence: 30 November 2007

SENTENCE

The accused appears for sentence on three charges – one of wilfully causing grievous bodily harm which carries a maximum penalty of seven years imprisonment, one of causing actual bodily harm which carries a maximum penalty of two years imprisonment, and one of being in possession of an unlawful weapon, namely, a .38 revolver pistol which carries a maximum penalty of three months imprisonment.

As it appears from the summary of facts admitted by the accused, on Tuesday evening 02 January 2007 around 6am, the accused attended a party at Lalovaea at the house of Faavae Robertson, the brother in law of the accused. Also attending the party was one Uili Maiava, a cousin of the accused’s brother in law. Later on in the evening, the accused, Faavae and Uili had a disagreement. It is not clear what caused the disagreement or who started it. The accused was then dropped off at his home at Vaigaga by the sisters of Uili.

Sometime after the accused was taken away from the party to be dropped off at his home, Uili, another girl, Faavae and his sister walked to the road at Lalovaea and sat on one side of the pavement at the junction that leads up to the Prayer House on Mt Vaea. The accused who had been dropped off at his home, got his .38 revolver pistol and headed back to Lalovaea in a van driven by another person. That was around 1am in the morning. When the van got to the junction which leads up to the Prayer House on Mt Vaea, the accused drove up that road and turned around from the Ah Liki Building at Palisi and drove back to the junction. The van stopped right before where Uili and the other girl were sitting on the pavement. The accused put out his hand, aimed the pistol at Uili’s direction and discharged the gun. The first shot hit Uili’s hand and the second shot hit his leg. On the third shot, Faavae reached over and grabbed the accused’s arm causing the bullet to graze his shoulder. The accused told the police that the intention he had was he wanted Uili to die that night ("O le faamoemoe na ia te a’u o’u te mana’o e oti Uili i le po lea").

After the third shot, the accused drove off but Faavae held on to the gun and was dragged along until he released his hold on the gun. The victims Uili and Faavae were immediately taken to the hospital where they both received treatment for their wounds. Uili sustained an abrasion on his leg but the bullet that hit his arm was lodged into his elbow and has not been removed. Faavae, on the other hand, sustained an abrasion on his shoulder.

The accused is a 25 year old male. He has a wife with two young children aged one year and three years. He had a job but ceased employment due to this case. He completed secondary school at Year 13 and then attended a rugby scholarship in New Zealand for three years before he returned to Samoa in 2003.

The testimonial from the pastor of the accused’s village describes the accused as a quiet and reserved person who keeps pretty much to himself. The testimonial from the pulenu’u of the accused’s village is to the same effect and also describes the accused as an obedient and well-mannered person. The accused is a first offender.

From the pre-sentence report, the accused told the probation service that he was provoked by the victim who must have been the victim Uili. His drunken condition only made matters worse. It is, however, not clear what was the provocation. The accused also told the probation service that he was extremely agitated and angry with the victim.

This matter has been reconciled between the family of the accused and the family of the victim. The accused expressed great regret and remorse to the probation service and has accepted full responsibility for his actions.

The victim Uili is a 30 year old male and the victim Faavae is a 36 year old male. The two men are cousins. As they did not want to be interviewed for the purpose of victim impact reports, nothing else is known about them.

Aggravating features

Counsel for the prosecution in her sentencing memorandum submits that there is a significant element of pre-mediation involved in this matter. After the accused was dropped off at his home at Vaigaga, he got a .38 pistol and headed back in a van to Lalovaea where the victim Uili was with the intention to kill Uili. Counsel for the prosecution also submits that the discharge by the accused of his pistol at Uili three times was a very dangerous act which could have had fatal consequences if the shots had impacted on more vulnerable parts of Uili’s body. In my view, the accused is fortunate that he was not charged with the more serious crime of attempted murder for discharging a gun at Uili with the intention to kill him.

Mitigating features

Counsel for the accused in his plea in mitigation referred to all the mitigating circumstances that could have been raised on half of the accused. These include: (a) the accused’s plea of guilty at the earliest opportunity, (b) the fact that the accused is a first offender and that the testimonials on the accused show that the present offences are out of character, (c) the reconciliation that has been effected between the family of the accused and the family of the victims, and (d) that the accused was provoked even though it is not clear what was the nature of the provocation.

Counsel for the accused also submitted that the accused had co-operated with the police in that he presented himself to the police together with the gun he had used. He also referred to the pre-sentence report which shows that the accused is genuinely remorseful and has accepted responsibility for his actions. Also mentioned were the personal circumstances of the accused including his young family who depend on him.

The decision

Counsel for the prosecution has pointed out that the offence of wilfully causing grievous bodily harm without lawful justification has usually carried a custodial sentence. Where there has been a guilty plea, sentences have ranged from 18 months imprisonment to 3 years imprisonment. Counsel also emphasised the deterrence and protection of the public aspects of sentencing given the special circumstances of this case and the gravity of the offending. She then sought from the Court a sentence of not less than 3 years imprisonment.

The circumstances of this case are particularly serious. It was most fortunate for the victim Uili that the consequences were not fatal because he was shot point blank three times at very short range. It was perhaps miraculous that none of the first two shots hit Uili on a vulnerable part of his body as the accused was obviously intent on killing him. Even though the injuries sustained by the victim Uili were not as serious as in other cases of grievous bodily harm that have come before the Court, that does not reduce the grave risk and danger that was posed by the accused’s actions. As earlier mentioned, the accused is perhaps fortunate that he is not faced with the more serious charge of attempted murder.

Counsel for the accused with his customary thoroughness has raised all the mitigating circumstances that could have been raised for the accused. After taking into account those matters, the aggravating circumstances, as well as the maximum penalty of seven years imprisonment, I am of the view that a custodial sentence is called for in this case.

The accused is sentenced to 3 years imprisonment on the charge of wilfully causing grievous bodily harm to the victim Uili without lawful justification. On the charge of causing actual bodily harm to the victim Faavae, the accused is sentenced to 3 months imprisonment. And on the charge of being in possession of an unlawful weapon, the accused is sentenced to 2 months imprisonment. All sentences are to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Latu Ey