Police v Maposua [2010] WSSC 125 (5 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

VILIAMU MAPOSUA,and ANTHONY SCHWALGER,
both males of Aleisa.
Defendants

Counsels: Mr G. Patu for prosecution
Ms M. Tuatagaloa for defendant Maposua
Mr A. Roma for defendant Schwalger

Sentence: 5 July 2010

SENTENCE

The defendants in this case after a trial were found guilty by a panel of assessors of attempting to murder the complainant on the evening of 31 December 2006 at Aleisa. The defendant Viliamu Maposua is a 29 year old married male from the village of Aleisa with three young children. His co-defendant Anthony Schwalger is also 29 years of age, married with three children and he is married to his co-defendants sister. Maposua is a taxi driver by occupation and Schwalger is a planter. Both are the breadwinners for their respective families.

The defendants are related to the complainant in that the complainants son was previously married to Viliamu Maposuas sister. The defendant Maposua is therefore the uncle of the complainants grand children. It also appears that the complainant and the father of Viliamu Maposua know each other well being owners of large plantations in the greater Aleisa area and there is little doubt in my mind that family differences are in the background to this incident, differences which will be inherited by the next generation if they remain unresolved.

The facts which were heard at trial show that after 10pm on the evening of 31 December 2006 which was New Years eve, the complainant was out on a drive with a female companion. He overtook a vehicle at Aleisa with the defendants therein. Whether the overtaking was reckless or provocative was not established by the evidence but what was clear is the defendants car then followed the complainants vehicle. And when the cars reached the complainants farm, the complainant pulled his car over to the side of the main road. The defendants vehicle pulled up alongside and the defendant Viliamu Maposua and the complainant had an exchange of words. The complainant said they were friendly greetings but I doubt that because the end result of this exchange of words was Maposua accusing the complainant of doing things to his father and saying words to the effect of " let us do it" or as the complainant said "o le a tatou fai loa". This was followed by Viliamu in possession of a rifle exiting his vehicle and his co-defendant Schwalger who was in the back on the tray of the car raising a shotgun and standing up. At which point the complainant correctly deduced he was in trouble and sped off while he was being shot at by the defendants. According to the complainants evidence if he did not duck to one side he would surely have been killed by the shots. The assessors obviously accepted that in convicting the pair of the offence of attempted murder.

The evidence adduced at the trial showed that one of the 22 bullet marks in the vehicle was about head high on the drivers side of the complainants car. The evidence also showed 16 gauge pellet holes to the back left side of the vehicle or the drivers side of the vehicle. The complainants further testimony was that the defendants kept shooting at him while he sped away in the vehicle and it was only when he turned off to his plantation property that the incident ceased.

The complainant in the victim impact report filed by the Attorney Generals Office complained of injuries to his left eye and face from this shooting. However I do not pay much regard to that because no such evidence was given by the complainant at the trial of this matter. Neither was any medical evidence called to show the complainant had been injured by the shooting or did the complainant say he had to go to the hospital that evening as a result of injuries. I have no doubt that if he had suffered such injury he would have related it in his evidence. This sentencing therefore is being conducted on the basis of no injuries to the complainant but there was clearly an attempt on his life. I also note it is common ground there were no injuries to his female companion or any shots in her direction.

The maximum penalty for attempted murder is life imprisonment under the law but previous sentences for offences involving the use of firearms have generally been around the 3 to 6 year range. The most recent case was Police v Toli [2010] WSSC 4 where the court handed down a lengthy sentence of 10 years imprisonment for attempted murder with a firearm. But I agree with the submission by counsel for Maposua that case is distinguishable on its facts and was a particularly bad example of an attempted murder using a firearm.

The circumstances here do not warrant a start point that high. Considering the random and opportunistic nature of the offending, I adopt 6 years as an applicable start point. There is little basis for generally differentiating between the two offenders subject to what is stated below. Because in terms of their conduct, Maposua initiated the incident and Schwalger his brother-in-law followed suit possibly out of misguided loyalty to his friend and relative. What it means is he too now must suffer the consequences of his actions which were equally as life-threatening. However some allowance should be made for the fact that the evidence shows Maposua to be the primary aggressor. He initiated the confrontation with the complainant and according to the evidence fired at least seven shots at the complainants vehicle, three of which hit home. Contrast that to Schwalger who seems to have only fired one shot from his 16 gauge shotgun.

From the start point should be made certain deductions for matters in the defendants favour. I accept that they were previously of good character and both have young families who will suffer as a result of their actions. I also accept that there was no premeditation as suggested by the prosecution because there was no evidence that the defendants placed weapons in their vehicle for the purpose of hunting down the complainant or that they stalked the complainant from a place of ambush like Toli. They say they were out shooting bats. The evidence was that the complainant was out for an evening tafao with his female friend, he overtook the defendants vehicle thus precipitating the incident. I also accept that the defendants have as confirmed by the Probation Office apologized but that the complainant really has not and possibly never will judging by his demeanour at trial and what is in the victim impact report truly forgive the defendants. But it is to the defendants credit that they made these apologies. I also take into account this is not an isolated incident and that there appears to exist much disharmony between the family of the defendants and the family of the complainant arising out of others matters which the defendant Maposua referred to before the shooting began. To this extent therefore there appears to be an element of provocation in the history of the case, a history which was not fully brought out by the facts but part of which counsel referred to and some of which I am aware of from previous court matters involving these two families. A feud which the court can only strongly recommend they do something about before further blood is shed.

Considering all the factors of this case I use the 6 year start point. I begin by reducing the penalty by one-quarter to take account of all the mitigating factors in your favour. That brings the penalty down to 4½ years which in my view is also commensurate with the criminality of the offending of this case. For you Mr Schwalger I further reduce that by 6 months to reflect the lesser role that you had in the offending. And for you Mr Maposua I note you have previous convictions for similar offences namely, armed with a dangerous weapon and assault. For you I ignore the previous conviction for discharging a firearm because I am informed that relates to this particular matter. But for your other two offences Viliamu the court has to upgrade your sentence to reflect those previous convictions and I do that by adding 3 months on to your term. The end result for all this is for you Mr Schwalger, you are convicted and sentenced to 4 years in prison. For you Mr Maposua you are convicted and sentenced to 4 years 9 months in prison.

JUSTICE NELSON