Police v Siano [2010] WSSC 25 (30 March 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

SAMIU SIANO male of Moamoa Faleasiu
Defendant

Counsels: Mr M. Lemisio for the prosecution
K. Ainuu for the defendant

Ruling: 29 March 2010

Sentence: 30 March 2010

RULING OF NELSON J. (disputed summary of facts) & SENTENCE

In this case the defendant on a charge of causing grievous bodily harm disputed paragraphs 4-8 of the prosecution summary of facts. He also disputed paragraph 16 as to his previous conviction but this was resolved by production of his previous conviction card which shows a conviction in 1999 for throwing stones.

The paragraphs in question 4-8 contained the background to the defendants offending and state as follows:

4. A few days before the date of the incident, the victim had reported the defendant to their village mayor (pulenuu) due to some misconduct that the defendant had tried to make towards one of the victims daughters.

5. Thus on Wednesday 22nd April 2009 at around 11am in the morning, the defendant went over to the victims house with a machete and rocks and called out to the victim why they had reported him to the village mayor.

6. The victim then walked out of his house, picked up some rocks and chased the defendant around the house. At that time, the defendant turned and ran back towards his house.

7. The defendant then went to his house, retrieved a firearm, and went back to the victims house. The victim at that time was outside in front of his house, talking to some people.

8. The defendant held up the firearm and discharged it directly towards the victim.

The parties in this case are related, the victim is the defendants uncle, that is he is the defendants fathers brother. The defendant is 28 years of age and the victim 53 years of age. The victim had been residing on family land at Faleasiu for approximately a year before this incident occurred. It further appears that the defendants father was instrumental in having the victim return to live on the family land even though other people of the family objected. But it seems the relationship has not been a happy one leading to the defendants father visiting Mulinuu Land and Titles Court Office on the day of the incident to obtain a letter evicting the victim from the family land at Faleasiu. It was while he was at Mulinuu that this incident occurred between his son and the victim.

The victims evidence is that on the day in question the defendant came to his house armed with a rock and a sapelu. An argument resulted in relation to allegations of incestuous behaviour involving the victims daughter. The victim had reported this to the village pulenuu the previous day but alleging it was the defendant who behaved inappropriately towards his daughter. An argument resulted between the victim and the defendant culminating in the victim grabbing some rocks and chasing the defendant from the property. The victim testified that the defendant then told him he was going to get a gun and shoot him and the defendant did exactly that. He left the property and returned with a gun aimed it at the victim and shot him from side on.

It appears from the medical report before the court the bullet entered the victims upper left thigh, perforated his rectum and became lodged deep in the muscles of the right buttocks. According to the report the rectum perforation was repaired but the bullet is lodged too deep and is "difficult to locate and remove". Accordingly the doctors reached the mysterious conclusion that it should remain where it is for the time being. The report further indicates the victim was discharged after one week in hospital but he continues to complain of fevers and dizzy spells. The victim impact report also states that he is unable to work anymore on his plantation. For reasons that are not entirely clear but appear to relate to the allegations of incest between the victim and his daughter, the victim has been banished by the village of Faleasiu. Information to the contrary by the probation office has now been corrected by them and it also appears that the victims brother who is the defendants father has on behalf of their family paid a village fine or "sala" for this matter.

The evidence of the defendant was different to that of the victim. He said that the night prior to the incident, his father summoned the victim and examined him among other things about the allegations of incest with his daughter. This angered the victim and the next day while the defendant was at work, the defendants wife rang and reported the victim had come to their house with a sapelu threatening him and his family. The defendant thereupon went home, grabbed his sapelu and went to the victims property which is only two or so houses from his. He said in his evidence he went to check on his cows grazing on the victims land but I do not believe that. I am satisfied that the defendant went to the victims property to confront him which he did. An argument resulted and the defendants testimony was the victim chased him away with rocks. During the chase the victim fell over so the defendant was able to escape unharmed but he says he heard the victim threatening to kill him and his father. So he went to his house, fetched his gun, saw the victim on the road with a sapelu coming to him, aimed the gun at the victim and shot him. He hit the victim with the shot so he left the scene.

The defendant called his wife in support of his testimony. She confirmed his account of the phone conversation with her husband. Also that the defendant on the first occasion left the house with a sapelu but on the second occasion he returned and appearing angry, went to his gun cupboard, broke it open, fetched the gun and left. The wife testified that she tried to stop the defendant but was unsuccessful. The defendant also called his father as a witness but he does not add much to the relevant events except the incest allegations against the victim but these are really not crucial to the present matter before the court. What is important is the witnesses including the defendant confirmed this matter has been settled in the family and that the defendant and his father have apologized to the victim and the victim had indicated to them he will try and get this matter withdrawn from the court.

On the relevant issues of fact that the court needs to consider I find as follows: what happened is that on the day in question the victim went to the defendants house armed with a sapelu looking for the defendant or more probably since the defendant works, the defendants father who is the victims brother. He may or may not have threatened the defendant and the father and the defendants wife and children but it is quite likely considering all the circumstances he would have said some strong words to the defendants wife. She then called her husband who came home, grabbed the sapelu and went to confront his uncle. He did so and an argument resulted and the uncle chased the defendant around with rocks. So the defendant went home and decided to escalate the situation by grabbing a gun. Whereupon he returned angry to the uncles property and shot the uncle. Whether he decided to kill him is debatable given that he shot him in the lower body, in the ass as it were and not to a more vulnerable area of the body. This is probably why the prosecution decided to withdraw their attempted murder charge. But that the defendant intended to cause the victim grievous bodily harm is beyond doubt and that is what he appears for sentence for today. Defendant will be remanded in custody until 10.00 oclock tomorrow morning Tuesday 30 March 2010 for plea in mitigation and sentence.

Sentence:

Samiu I have listened carefully to what your lawyer has had to say on your behalf and he urged the court to consider a community based sentence in other words some penalty other than imprisonment. That cannot be done for the reasons that the court is about to explain. Firstly you used in this offending a gun which is a lethal weapon. A weapon in respect of which the Parliament of this country over the last decade has consistently increased penalties for because of the increasing number of firearms offences both fatal and non fatal that are coming before the courts. That is a clear message to the court to treat such offending with the utmost seriousness. I also note that in this case you used a weapon on a member of your own family, your uncle and that the reality is in the circumstances you did have other options, the best option being not to go back to his property and confront him. Instead you chose to take a weapon to the scene and it is clear from your wifes testimony that you were angry at your uncle. You shot him at relatively close range, the distance was indicated by him to be between the bench here and the balcony outside. Your shot caused a life threatening injury requiring surgery, an injury that according to the victim impact report the victim still continues to live with. In fact he carries a bullet around because the doctors have expressed the view that it is too dangerous to remove it at the present time.

I have Samiu reviewed other decisions of this court that have been reported involving guns being used to cause grievous bodily harm. Cases such as Police v Papalii [2007] WSSC 90 where the use of a pistol at close range attracted a penalty of 3 years imprisonment; also Police v Taito 28 March 2008 where a penalty of 4 years 3 months in prison was imposed for a shooting involving a gun. There are also various reported cases not of grievous bodily harm but attempted murder charges involving the use of weapons and in all of them sentences of imprisonment have been imposed – see for example Police v Ah Kee [2009] WSSC 78, 4 years 8 months. As stated by the Chief Justice in Police v Leifi [2005] WSSC 25:
"The sentences imposed by the court have depended very much on the circumstances of each case with previous cases providing only general guidance. One thing which can be with confidence said is that this type of case normally attracts a term of imprisonment".

There is no question then that a penalty of imprisonment is required for your case. The maximum penalty for the offence is 7 years in prison but I have taken into consideration what your lawyer has told the court. Unfortunately your young family will suffer but they are the innocent victims of what you did.

It is in your favour that you pleaded guilty and saved the time of the court. Your counsel has asked for you to be treated as a first offender because your previous conviction in 1999 was some time ago. But I cannot treat you as a first offender where you have been convicted of an offence of a similar nature, that of throwing stones and where the fine imposed was a substantial sum. I do however Samiu take into account that the matter has been settled in your family and that your family has paid a "sala" to the village. Most importantly I take into account the fact that there was provocation in the behaviour of the victim your uncle towards you, not only in what he said but in what he did. All these matters reduce what would otherwise be a penalty of 5 years imprisonment to one of 3 years imprisonment. On this charge you are convicted and sentenced to 3 years imprisonment.

JUSTICE NELSON