Police v Vaili [2016] WSSC 103 (6 May 2016)

IN THE SUPREME COURT OF SAMOA
Police v Vaili [2016] WSSC 103

Case name:	Police v Vaili
Citation:	[2016] WSSC 103
Decision date:	06 May 2016
Parties:	POLICE (Prosecution) OVALENI POLI PALAU VAILI also known as POLI PALAU TATUPU VAILI male of Faleatiu and Satapuala. (Defendant)
Hearing date(s):	-
File number(s):	S934/15,S935/15, S963/15, S4535/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of using and discharging a firearm against the police convicted and sentenced to 3 years in prison. In relation to the charge of armed with a dangerous weapon, in this case a semi-automatic rifle, after similar deductions convicted and sentenced to 9 months in prison, concurrent term. In relation to the offence of dangerous driving, again following the same process convicted and sentenced to 3 months in prison, concurrent term. In relation to the rifle involved in this incident if recovered it is ordered forfeited and is to be destroyed. In respect of this incident and information S4535/14 the defendant will be convicted and likewise sentenced to 3 years in prison.
Representation:	R Titi for prosecution I Sapolu for defendant
Catchwords:	Drove vehicle in a dangerous manner – armed with a dangerous weapon – discharging semi-automatic rifle
Words and phrases:
Legislation cited:	New Zealand Crimes Act 1961
Cases cited:	Police v Siaosi [2014] WSSC 19 R v Samuels [2009] NZCA 153
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

OVALENI POLI PALAU VAILI also known as POLI PALAU TATUPU VAILI male of Faleatiu and Satapuala..
Defendant

Counsel: R Titi for prosecution
I Sapolu for defendant

Sentence: 06 May 2016

SENTENCE

1. After a defended hearing the defendant was found guilty of four (4) charges. S963/15 that on the 04^th of March 2014 at Satapuala he drove a vehicle in a dangerous manner having regard to the road circumstances at the time prevailing. S935/15 same date and place that he was armed with a dangerous weapon namely a semi-automatic rifle. S934/15 same date and same place that he used and discharged the semi-automatic rifle against the police. And in relation to a separate incident on 28 November 2014 again of using and discharging a semi-automatic rifle against the police this time with intent to resist arrest. Information S4535/14.
2. The Courts judgment on these matters was rendered on 29 April 2016. All charges carry significant maximum penalties. Dangerous driving 2 years, armed with a dangerous weapon 1 year, using firearm against the police 7 years. That is indicative of the seriousness with which the offences are regarded by the law.
3. As far as I know this is only the second time a charge under section 127(1) of the new Crimes Act 2013 of discharging a firearm against the police has come before the court. First time was when the defendants co-defendant passenger in the front seat of the vehicle 04 March 2014 incident was dealt with. That is the co-defendant Fotu Siaosi and for the decision in that matter see Police v Siaosi [2014] WSSC 19.
4. The facts of this case are outlined in the Courts judgment of 29 April 2016 and they concern two incidents. First incident occurred on 04 March 2014 when the defendant drove his small silver mini-van type vehicle from Mulifanua Wharf to Faleolo in a dangerous and erratic manner. Witnesses said he was not driving fast but was veering from one side of the road to the other and driving on the wrong side of the road. The vehicle then ran through a police road block at Faleolo opposite the Faleolo Police Post. The evidence heard at trial from police officers was the defendant almost ran over two officers at the road block. Causing the police to pursue the defendants vehicle.
5. The defendants vehicle kept going and at one stage slowed down to the extent that a police officer was able to try and disarm the co-defendant Fotu who was seated in the front passengers seat in possession of a semi-automatic rifle. But the vehicle sped up again and the police officer was unable to do that. Witnesses said the defendants vehicle proceeded and stopped some 100 or so meters away from the police vehicle which was stationary. The defendant exited the vehicle, took the gun away from Fotu and aimed it at the police party. Then deliberately discharged it several times into the air, after which the defendant and Fotu drove off.
6. The second incident occurred some months later on 28 November 2014 when the defendant was stopped at a police road block opposite the entrance to Aggies Resort at Mulifanua, not far from Mulifanua Wharf where police officers had observed him with alcohol in the vehicle. The officers tried to arrest the defendant at the road block but could not extract him from the vehicle. Vehicle being the same silver mini-van that the defendant had driven on the earlier occasion. It is not clear if the police officers were aware of the earlier discharging of the firearm incident that occurred at Satapuala in March. Probably were.
7. They said the defendant then drove his vehicle seaward towards the Resort turned it around and faced the police party. They said he held the gun in his right hand outside the vehicle and while driving with the left hand again brandished the rifle at police. But discharged the weapon into the air a number of times causing the police party to scatter allowing the defendant to drive through the road block onto the main road. Fired off a few more shots before continuing in the Apia direction.
8. The positive outcome of the two incidents is no one was injured, police officer or civilian. But the victim impact reports filed by some of the police officers speak of the lasting effect of these episodes. And the shock and the fear experienced by the police officers who were of course unarmed. For many of them it was their first encounter with a situation such as this. With a firearm being pointed at them. Many considered resigning from the police force because of the experience. That is a human reaction and quite understandable given they are suddenly faced with a potential life or death situation.
9. The defendants intent was clearly to intimidate and ingrain fear in the police officers whom he well knew were unarmed and probably unprepared as incidents of this nature are not common in this country. Regretfully neither are police officers adequately if at all trained in how to respond to such scenarios. Something that Ovaleni by his actions may now unwittingly change.
10. In terms of the aggravating factors of the offending I agree with the prosecution. The defendants actions show a callous disregard for the law and for law enforcement officers. Your behaviour sir is more suited to the back streets of South Central LA or the set of a Hollywood Western.
11. His evading of the police road blocks put the safety of police officers and other road users at clear risk. His actions in deliberately confronting the police on both occasions in a threatening manner, aiming an armed weapon at them and discharging it into the air is completely unacceptable. Police officers are after all only trying to do their job.
13. While I accept defence counsels submission that no tariff exists for this charge, nevertheless a firm response is required to this kind of behaviour. As noted by the New Zealand Court of Appeal in cases such as Taylor, Collier and more recently in R v Samuels [2009] NZCA 153: in enacting provisions such as section 198A of the New Zealand Crimes Act 1961 (equivalent to our section 127), Parliament has demonstrated a firm intention that those using firearms in any manner against law enforcement officers are to be dealt with severely.
14. Deterrence must be a major consideration in sentencing in such cases. Especially given that in this country more and more firearms offending are coming before the courts as time goes on. And alot of these offending involves semi-automatic weapons. The unequivocal message that must be sent to the defendant and to the general public at large is that if you use firearms against police officers, particularly a lethal firearm such as a semi-automatic weapon, you can expect little leniency from the Court.
15. This was the approach adopted by Chief Justice Sapolu in sentencing Fotu for his part in the 04 March 2014 incident. This is the approach I also propose to follow. Subject of course to the modification that the maximum penalty for the offence in this country is half what it is in New Zealand.
16. I deal firstly with the first incident and information S934/15 of using and discharging of a firearm against police officers. The maximum for which as stated is 7 years in prison. A start point for sentence must in my view be higher than that used by the Chief Justice in sentencing the defendants co-defendant for a lesser role in this particular offending. And the start point must reflect the circumstances and the actions of the defendant himself. In pointing an armed semi-automatic rifle at the police then discharging it more than once into the air. Bearing in mind the necessity for a deterrent penalty in the current climate I adopt a 4 year in prison start point.
17. The defendant did not plead guilty so there can be no deduction for a guilty plea. His pre-sentence report indicates a low level of education but a good background of service for his aiga. That report is supported by references from his village, his faifeau and a letter from his father. All speak highly of the defendant. It is further clear the defendant has a clean record this is his first court appearance on any matter. He also personally expressed this morning his remorse and apologised for his conduct not only to the court but to the police. It is a great pity Ovaleni you did not do so earlier or when the relevant police officers were here, because that would have made your apology more effective. However I do not ignore it completely. To reflect all these factors I make a blanket deduction of one (1) year from the start point for sentence, leaves 3 years in prison.
18. Your lawyer has said all that can be said for you there are no other deductions that apply to your case. On the charge of using and discharging a firearm against the police convicted and sentenced to 3 years in prison.
19. In relation to the charge of armed with a dangerous weapon, in this case a semi-automatic rifle, after similar deductions convicted and sentenced to 9 months in prison, concurrent term.
20. In relation to the offence of dangerous driving, again following the same process convicted and sentenced to 3 months in prison, concurrent term.
21. In relation to the rifle involved in this incident if recovered it is ordered forfeited and is to be destroyed.
22. In relation to the second incident information S4535/14. That is similar offending in that the defendant again confronted the police. Initially his response was to drive away seawards towards the Resort but then he deliberately turned around and confronted the police party. He had other options. To keep retreating but instead chose to take on the police. Again indicative of the defendants state of mind and general attitude towards the law and the police. This time his aiming of the armed weapon at the police and shooting it into the air caused the police to disperse in fear for their lives. So that the defendant was able to escape arrest.
23. The defendants actions here consisted of aiming the armed weapon at the police and again discharging it several times albeit into the air. Even when he exited Aggies compound and was on the main road he continued to discharge further shots. A similar start point for sentence is in my view totally appropriate, namely 4 years in prison. For this matter the defendant qualifies for the same deductions and a similar result is produced.
24. In respect of this incident and information S4535/14 the defendant will be convicted and likewise sentenced to 3 years in prison.
25. Ae ona o mataupu uma ia, e ese le mataupu lea na tula’i mai le aso 4 o Mati, ese le mataupu lea na tula’i mai le aso 28 o Novema. O lona uiga e tatau ona tuli eseese fa’asalaga ia. O le aofa’i la o lou fa’asalaga mo mataupu ia e lua e 6 tausaga e te nofo sala ai i le falepuipui. Peita’i ua poloaiga e le Fa’amasinoga le taimi lea sa e nofo taofia ai amata mai le amataga e tatau ona toese mai le 6 tausaga lena. Pau lena o le faamāmā avega e mafai ona tu’u atu mo lau mataupu.
26. Just for the record Ms Sapolu I have considered whether the cumulative effect of the sentences breaches the principal of totality of sentencing and I have come to the conclusion it does not. I am of the view the total term imposed is appropriate to the offending that was committed, alright? (Ms Sapolu: yes your honour). So that is a total term of 6 years less remand in custody time.
    

JUSTICE NELSON