Police v Vavao [2011] WSSC 81 (13 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TAULALO A'I VAVAO
male of Se'ese'e, Lepea and Tuanaimato.
Defendant

Counsels: Ms T Toailoa and Ms F E Niumata for prosecution
Mr T S Toleafoa for defendant.

Sentence: 13 June 2011

SENTENCE

After a defended hearing on a charge of murder a panel of assessors returned a majority verdict of not guilty of murder but guilty of manslaughter. The facts at the trial was that the defendants family had cleared and had been growing for a number of years crops on a piece of customary land located at Se'ese'e. On the morning of 18 January 2008 the defendant together with a group of younger relatives went to the land to do some work. They travelled there in the defendants vehicle. The defendant alighted from the vehicle at the lower part of the land while the remainder of the group drove inland to another part of the property.

When the group arrived at the inland part they found the deceased and members of his family clearing and working the property. It appears from the evidence heard at the trial there was some dispute as to ownership of the property on the part of the deceaseds family and the defendants family. The defendants group confronted and questioned the deceased and his party and the deceased and an older uncle chased the defendants group from the area. There was some evidence the deceaseds group swore at and threatened the defendants group and made derogatory statements about the defendants father and that they assaulted one of the defendants younger siblings although not seriously.

The defendants group departed and reported to the defendant what had happened. The defendant loaded everyone into the vehicle and took the group home. He instructed them to stay there and he armed himself with a loaded 45 calibre pistol and returned to the property. The police weapons expert testified that the pistol was an automatic pistol so that once it is cocked it fires when the trigger is pressed and is capable of firing successive shots without being re-cocked. The evidence indicated that the defendant primed the weapon for firing either at his house which is unlikely or en-route or at the scene which is a more likely scenario. And with this weapon the defendant returned to the scene no doubt to confront the deceased and his party.

The defendant arrived at the scene and when met by the deceased whom he said was advancing upon him armed with a machete in his right hand, shot the deceased in the right upper shoulder. The defendant in his evidence at trial before the assessors claimed that he fired a preliminary shot into the air to deter the approaching deceased and when this did not work he had no choice but to shoot the armed deceased in the shoulder in self defence. Unfortunately for both parties this shot severed a main artery and in bouncing off the right collar bone which it broke, it pierced the top part of the deceaseds right lung as it travelled across the top part of the deceaseds body from right to left. The bullet fragment came to rest in the left nape of the deceaseds neck. The injuries that this gunshot wound caused were sufficient to lead to the death of the deceased two days later at the National Hospital at Motootua despite the efforts of the medical staff to treat and save him.

In rendering their verdict of guilty of manslaughter it can be taken that the assessors rejected quite properly the defendants claim of self defence. But how the assessors arrived at their verdict of manslaughter is not entirely clear and assessors are not obliged under our system of law to give reasons for their decision. The defence of provocation which can reduce murder to manslaughter was not put to them as there was in law no sufficient basis for such a defence being raised. Because of that neither counsel referred to the defence in their submissions, neither did they ask that it be put to the assessors. Which leaves only the reasonable supposition that the assessors verdict was because they were not satisfied that the defendant had the necessary intent to kill or intent to cause bodily injury known to be likely to kill but the defendant was reckless whether he did kill or not.

His counsel has again raised medical misadventure in his sentencing submissions as a factor for the court to take into account but this too was obviously disregarded by the assessors who again in my view quite properly found that the cause of the deceaseds death was the gunshot wound suffered at the hands of the defendant. Counsel has also argued on behalf of his client that all this happened because the deceased and his group trespassed onto the defendants familys land. An argument that must be rejected as the cause of this incident was not that but the defendants action of returning to the scene armed with a loaded weapon which he eventually used.

The court has expressed its views in the past on the seriousness of homicide by firearm. In Police v Liligia (unreported) judgment dated 09 July 2007 the court noted the increase in firearm offending generally in this community and the efforts being made by the police and Parliament to combat this disturbing trend. This is contained in a passage in the second paragraph on page four of the judgment:

"Cases of firearm offending coming before the courts in particular in the District Courts where such offences are normally prosecuted has risen sharply in recent times. The involvement of firearms in general offending has also increased to the extent that one of the measures taken by the Police of this country to try and combat the problem was offering amnesties for illegal or unlicensed firearms. Parliament obviously is also concerned about this growing problem as it took steps in 1999 to review upward the penalties for firearms offending under the Arms legislation. This followed the high-profile killing of a Cabinet minister by two of his fellow ministers. Parliaments response was to increase penalties under the Arms legislation dramatically, e.g. possession of an unlawful weapon went from 3 months imprisonment or a $200 fine to 5 years imprisonment or a $10,000 fine. Last year Parliament again increased the maximum fine from $10,000 to its present limit of $25,000."

And on page 6:.

"The taking of a persons life is a most serious if not the most serious offence at law. The court accepts and has seen that the accused is remorseful for this incident. And that there are many factors an accused may have in his favour. But the need for an unequivocal statement from the court about homicide involving the use of firearms must be made. There must be no doubt in the public mind that the use of firearms for this sort of offending will receive stern treatment. The need for deterrence outweighs all other factors."

The offence of manslaughter carries a maximum penalty at law of life imprisonment. However an appropriate start point is the usual practice to adopt in ascertaining what is a sentence appropriate to each manslaughter case. And to reach that start point the court must consider all relevant circumstances in order to assess the criminality of the defendants conduct. Such factors include the act of the defendant in returning to the scene armed with a loaded cocked pistol; his action in shooting at the deceased whom the prosecution witnesses said was at the time unarmed, a version the assessors must have accepted because they rejected the defendants claim of self defence; the close proximity of the parties at the time of the actual shooting; the defendants own words to the police as recorded in his cautioned statement to them quoting from the second to last page:

"Ga ou kauguu i le fagua ma ou kukulia ese le aualii ia ma le fagua. Ae valaau mai Fagai poo le a le mea ouke magao iai. O lea ga ou fagaina ai loa".

And further down in the statement:

"Ga ou alaku faapea a fai mai se kala ouke fiafia ai ouke koe fo'i peikai ga fai mai le kala e le fekaui, oso loa ma lo'u ika faga ai loa".

It is also relevant the defendant failed to render assistance to the obviously injured deceased which is acknowledged in his own statement when he says:

"Ga uma loa oga faga o'u savali ese loa."

Considering these sorts of matters and the need to re-inforce the message of the seriousness of homicide by firearm as reflected in previous sentences of this court in cases like Police v Liligia and Police v Faauila also a judgment dated 09 July 2007, I consider a 15 year start point is appropriate. But from that start point there are factors in the defendants favour as pointed out by his counsel for which that term requires adjustment. Taulalo is a first offender he has a good record and background as fully canvassed in the probation office pre-sentence report. The fact that an ifoga in accordance with our custom and tradition has been carried out and has been confirmed by a matai of the deceaseds family one Vaitagutu Viliamu Masoe whose letter is attached to the pre-sentence report. As well the village council of the defendants village have played their part and imposed a substantial penalty on the defendant and his family which has been attended to again as confirmed in the pre-sentence report. I also take into account the provocative behaviour of the deceased and his party that morning in relation to the defendants siblings and relatives. Behaviour which no doubt fueled a brewing situation. In respect of all those matters I make a lump sum deduction of one-third of the term namely a period of 5 years.

Counsel had also raised the argument on behalf of his client in mitigation to the effect that it is the customary duty of young "tauleleas" or young men of any Samoan family to protect family lands and to uphold the family honour. I have no quarrel with that in principle. But the manner in which the defendant chose to do this is neither in accord with custom and tradition or in accord with our law. Differences over land and pieces of land and ownership and the use of pieces of land are matters which are well within the province of the Alii and Faipule or village council of any village. Failing that there are the other mechanisms of the Lands and Titles Court for adjudication and the police to keep order. These are the lawful avenues to be used to resolve such disputes and the use of violence, whether using a weapon or without a weapon is not something to be encouraged or sanctioned. There is therefore no deduction warranted for that matter.

Taulalo in accordance with the decision of the court a period of 5 years has been deducted from the start point of 15 years for your sentence in this matter. That leaves a balance of 10 years. You are eligible for no other deductions, you will be convicted and sentenced to 10 years in prison. The gun involved in this matter is ordered to be destroyed.

There will also issue a coroners finding in respect of this matter that the deceased Fagai Sale also known as Fagai Leuluaialii, a male of Se'ese'e did die on the 20th day of January 2008 at the National Hospital at Motootua as a result of a gunshot wound sustained in this incident on 18 January 2008 at Se'e se'e.

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