Police v Iva [2011] WSSC 142 (19 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TAALO IVA male of Iva
Defendant

Counsels: Ms L Taimalelagi and L.Su'a-Mailo for prosecution
Mr R Faaiuaso for defendant
Sentence: 19 December 2011

SENTENCE

After a defended hearing the defendant was acquitted of murder but found guilty of manslaughter by a unanimous verdict of a panel of assessors. The facts at trial showed that the defendant and the deceased were neighbouring landowners and the defendant had for a number of years been using part of the deceaseds land to grow crops. On the day of this incident being Saturday 30 April 2011 the defendant went to his plantation and found that it had been trampled by the deceaseds cows. He confronted the deceased and an argument resulted leading to the deceased chasing the defendant off his land. At the time the deceased was armed with a spade and the defendant with a 'sapelu' (bushknife). Fortunately the deceaseds wife was also present and she intervened in the confrontation and told the defendant it would be best if he left. At that time her husband had gone to his house and fetched his shotgun. On seeing this the defendant left the property and the deceased came back to the area and fired a gunshot into the air. A gunshot which the defendant heard.

Later that Saturday the defendant returned to the deceaseds property. Where the deceased and members of his family were preparing coconuts for roasting in the "ogaumu taopopo" (coconut oven). At that time the defendant had armed himself with his sapelu as well as a loaded 12 gauge shotgun. Upon arrival at the scene he challenged the deceased and not surprisingly a further confrontation between the two men resulted. This caused the deceased to say to the defendant that I also have a gun and he reached for his shotgun. As he did so the defendant shot the deceased in the upper right arm. Unfortunately the shot was delivered at close range and the bullet passed through the arm and into the body of the deceased inflicting fatal injuries. I find sitting as a Coroner in this matter that this gunshot injury to the deceaseds upper body caused severe internal damage which led to his death that evening at the Malietoa Tanumafili II Hospital at Tuasivi.

These are the events that lead to the defendants appearance in court this afternoon for sentence on a charge of manslaughter. The offence of manslaughter carries a maximum penalty of life in prison. But as noted by the Court of Appeal in Nepa v Attorney General [2010] WSCA 1 there is no offence in which the permissible degrees of punishment cover so wide a range. And none perhaps in which the exercise of so large a discretion is called for in determining an appropriate penalty.

As was said by my brother in Police v Phillips [1999] WSSC 1 "it is for the judge in each case to determine the appropriate sentence by having regard to the circumstances of the particular offence and the culpability of the particular offender." This is not the first case of homicide by firearm that has come before the court. In previous cases the court has noted the disturbing prevalence of general firearms offending in our country. I am certain everyone recalls the incident some years ago where a Government Minister was assassinated by two of his fellow ministers. A dark day indeed in the history of our nation. The weapon of choice in that case was also a shotgun. From that time on the Parliament of this country has constantly reviewed upwards the penalties for firearms offending. And the courts have increasingly voiced their concern at what seems to be a trend emerging in these newer days.

There is no question in my mind that sentences of imprisonment must continue to be imposed in cases where firearms are used to take the life of another human being. It is only a matter of determining what is an appropriate term. It is clear from the facts of this case that the defendant returned to the deceaseds plantation pre-armed with his shotgun and his sapelu. And furthermore that when he arrived he issued challenging words to the deceased. These actions provoked the confrontation that was to follow. It is also clear that the fatal shot in this matter was delivered at close range. The witnesses at trial estimated it to be around 3-4 meters distance. That is consistent with the penetrative nature of the fatal wound.

The result of the defendants action has been a loss of a husband and a father to a family. The court reiterates what was stated in Police v Liligia [2007] WSSC 101 that there must be an unequivocal statement made about homicide by firearms leaving no doubt in the publics mind that the use of firearm to kill will receive strong deterrent sentences.

Considering all the relevant circumstances I adopt a 15 year start point for sentence. I do not accept your counsels submission that the court can ignore your previous record. I accept your conviction in 2004 for narcotics is irrelevant to this matter and I ignore that. But your conviction in 2002 for armed with a dangerous weapon is in my view most relevant because it shows a propensity towards violent behaviour. In that case I am told by your counsel that you were armed Taalo as here with a sapelu. However I do not propose to increase the start point for sentence because of that as that offence was 9 years or so ago. But it does make the 15 year start point most appropriate.

I do agree with your lawyer Taalo that you are entitled to deductions for the following. Firstly for the fact which was not disputed by the prosecution during hearing or your counsels plea in mitigation that you were originally willing to plead guilty to the reduced charge of manslaughter. Furthermore for the fact that as recorded and confirmed by the probation office in their pre-sentence report, a full reconciliation has been conducted in accordance with our "tu and aganuu faasamoa" (Samoan custom and tradition). In addition to that a formal apology and a "sala" (penalty) was given effect to before the village council of your village. Together with that you have been banished from your village because of this offence. The court accepts Taalo that you are remorseful for this matter and you are prepared to accept the penalty. Because as you have told your counsel "ua masa'a le toto ua maumau le ola" (blood has been spilled, a life needlessly lost). For all those factors I make a blanket deduction of 5 years from the start point for penalty. You will be convicted and sentenced for this charge to a period of 10 years in prison.

There will also be an order that the firearms involved in this matter are to be forfeited to the State for destruction.

............................
JUSTICE NELSON