IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

LEVI SILIALAEI TITI
male of Falealupo-tai.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Su’a for prosecution
R Papali’i for accused

Sentence: 10 December 2007 

SENTENCE

The charge

The accused appears for sentence on the charge of attempted murder which carries a maximum penalty of life imprisonment. The accused initially pleaded not guilty to the charge but subsequently changed his plea to guilty seven months later when this matter was to go to trial. So I cannot give the accused the usual discount for a guilty plea at the earliest opportunity.

It appears, however, from the plea in mitigation made on behalf of the accused that when this offence was committed, the offender was unknown but the accused voluntarily surrendered himself to the police and made a full confession. The accused confessed to the police four times. 

The offending

As it appears from the summary of facts admitted by the accused, on Saturday morning, 4 March 2006 at around 11am, the accused left his village of Vaisala in Savaii and headed to his family at the village of Falealupo for a family meeting. When the accused arrived at Falealupo, his family held its meeting in an open house immediately before a Samoan hut. Behind the hut is a stone fence with pandanus palm trees growing next to it. Behind the stone fence is a bush area. The victim was sitting in the open house on a chair with his back towards the bush area.

At that time, the accused left his house and went to where the victim’s family was meeting to see if the victim was in attendance. Upon confirming the victim’s presence, the accused returned inland to his house and got his father’s (12) gauge firearm together with one ammunition and headed back to the house where the victim’s family was having its meeting. His purpose in taking the gun with him was to shoot the victim if he was at the meeting.

Whilst food was being served for those people attending the meeting of the victim’s family, the accused was standing behind the stone fence about 15 metres from the hut awaiting a clear sight of the victim. He told the police that he wanted to shoot the victim dead. The accused then aimed the loaded firearm at the back of the accused’s head and fired. However, it was on the third time that the accused pulled the trigger that the firearm went off and the bullet hit the victim on the back of his head. The victim felt a sharp pain to his head and stumbled forward with his hands behind his head calling out "Auoi, Auoi." He was immediately taken to the hospital at Sataua before he was flown to the National Hospital in Apia.

Whilst the police were conducting their investigations on the same day, the accused approached the police and confessed to committing the offence. As it appears from the pre-sentence report, the accused told the probation service that what had happened was due to sudden anger on his part towards the victim. This was because the victim had tried to change the traditions of his village and that had changed the attitude of some of the village matais. The accused also told the probation service that his father had been discharged from his village by the victim and a number of other matais related to him. These matters made the accused very angry towards the victim and contributed to his committing the present offence.

The accused

The accused is a 29 year old male of Falealupo. He is married with three young children. He had a low level of education. He has had no formal employment but spends his time on fishing and working on his family’s plantation. He has also had an unhappy family upbringing as his parents separated when he was about 13 years. As a result of this incident, the accused has been banished from his village and is now living in the Apia area. His father has also been banished from the village.

Following this incident, the village of the accused presented to Vaisala, the village of the victim. This consisted of one large fine mat and $1,000 cash which was accepted. The family of the accused, on the other hand, presented a ifoga to their village of Falealupo and it consisted of one large fine mat and foodstuffs. This ifoga was also accepted. Counsel for the accused during her plea in mitigation told the Court that peace and harmony has been restored.

The accused is a first offender.

The victim

The victim is 63 years old and is currently a Member of Parliament. He was previously the Member of Parliament for the territorial constituency where the accused comes from.

As it appears from the victim impact report, remnants of the bullet still remain in the victim’s head often causing him pain when he is out in the sun. The victim also finds himself dizzy and tired when in direct sunlight. He has become weak and his strength is no longer the same. Since this incident, the victim’s reflexes have slowed. His eyesight has also deteriorated and he has had to change his spectacles twice. The victim who used to be in charge of checking the receipts for the Canopy Walking and other historical sights at Falealupo no longer has the ability and strength to perform that duty and has delegated it to someone else. 

Psychologically, the victim has become mentally stressed in trying to figure out the reason he had been shot by someone he does not know. He also keeps wandering what he had done wrong to have led to this incident. When he now attends meetings of his family there is the concern that his life is at risk.

For the victim’s children they are really hurt and they fear for their father’s well- being. They also fear for their own safety although they are trying to move on with their lives.

Aggravating features

The actions of the accused in going first to the house where the victim’s family was meeting to confirm the presence of the victim, then returning to his house and picked up the firearm with one bullet, then hiding in the bush and aimed the firearm at the victim’s head who must have been eating at that time, and then discharging the firearm were clearly calculated, pre-meditated, and pre-planned. The use of a firearm to shoot the victim with the intention to kill him was a most dangerous act. Perhaps the accused was fortunate that the victim did not die otherwise he would have been faced with the more serious charge of murder.

The impact of the accused’s actions on the victim as set out in the victim impact report is another aggravating feature of this offending.

Mitigating features

The accused’s plea of guilty to the charge, his co-operation with the police during their investigations, the ifoga presented by his family to the village, the fact that he is a first offender, and the fact that he has already been penalised by being banished from his village are mitigating features in favour of the accused. I would also accept the submission by counsel for the accused that the accused is genuinely remorseful.

I would, however, give only very limited credit for what the accused told the probation service which suggests that he was acting under provocation. The reason is because the retaliation was overly disproportionate.

The decision

In the circumstances of this case, I will take 8 years as the starting point for sentence. I will deduct 25% for the delayed plea of guilty, that reduces the sentence to 6 years. I will deduct a further 18 months for the other mitigating factors. That further reduces the sentenced to 4½ years. 

Given the gravity of the offending and the impact has had on the victim, I will add on 10 months. That brings the sentence up to 5 years and 4 months.

The accused is sentenced to 5 years and 4 months imprisonment. The period during which the accused was remanded in custody is to be deducted from that sentence. 

CHIEF JUSTICE

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