Police v Leiloa [2020] WSSC 96 (22 December 2020)

THE SUPREME COURT OF SAMOA
POLICE v LEILOA [2020] WSSC 96

Case name:	POLICE v LEILOA
Citation:	[2020] WSSC 96
Sentence date:	22 December 2020
Parties:	POLICE v TAUALAI LEILOA aka TAUALAI TUILAEPA LEILOA male of Magiagi and Laulii
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	- Convicted of conspiracy to murder and sentenced to 5 years’ imprisonment. Time in custody to be deducted.
Representation:	A Matalasi for the Prosecution S Chan Chui for the Accused
Catchwords:	aggravating features – conspiracy to murder – mitigating factors –starting point for sentence – reconciliation – remorse – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, section 38(2) and 99(a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TAUALAI LEILOA aka TAUALAI TUILAEPA LEILOA male of Faleasiu
Accused

Counsel:
A Matalasi for Prosecution
S Chan Chui for the accused

Sentence: 22 December 2020

SENTENCE

The charge

1. The defendant appears for sentence on one charge of conspiracy to commit an offence, namely murder, pursuant to sections 38(2) and 99(a) of the Crimes Act 2013 for which the maximum imprisonment is life imprisonment. (section 106 Crimes Act 2013).

2. He pleaded guilty to the charge on 9 September 2019.

The offending

3. According to the summary of facts accepted by the defendant the defendant's three co-accusers are Malele Paulo aka King Faipopo ('Malele'), Lemai Faioso Sione aka Simanu Faioso Sione aka Manu ('Manu') and Talalelei Pauga aka Tala aka Ninja ('Tala').
4. The offending occurred within the period of 30th April 2019 and 12th August 2019.
5. Sometime in the month of May 2019, the defendant recorded a live video on facebook using his wife's facebook page. The video records the defendant's request to the government, as a person whose family come from and was raised in Magiagi, not to proceed with the construction of the water dam (faatanoavai) at that village.
6. The said video was seen by Tala reportedly from Australia, and subsequently, Tala added the defendant on facebook messenger and the pair were able to contact each other.

Initial Conversation and planning of the offending

7. Sometime between May and June 2019, Tala video called the defendant on messenger.
8. The pair started discussing matters related to Samoa, and eventually, Tala relayed to the defendant that he wished to have the victim killed and had asked the defendant whether he had the courage to carry out the proposed assassination.
9. The defendant knew and identified Tala from his videos posted on social media, and also from news reports, related to his case when he was charged for false statement on his immigration form. The defendant also knew of him from the incident where he threw a pig's head in a hall where the victim was speaking, in Australia.
10. The defendant knew that Tala was known to be anti - government.

11. The defendant then represented himself to Tala as being in agreement with his proposal that he would be the assassin to conduct the assassination of the victim.

First (15f) Gun (pulusila) obtained from a male of Faleatiu
First Money from Tala - $400.00tala

12. Sometime in June 2019, Tala video called the defendant on messenger and instructed him to pick up $400.00 tala from his female cousin behind the RSA club at Savalalo to pay for the gun that he had arranged.
13. The defendant attended to this as instructed and uplifted $400 from Tala's female cousin.
14. Upon Tala's instructions, the defendant went to Faleatiu to obtain a gun (pulusila) from a male of Faleatiu village.
15. The said man gave the gun to the defendant which was wrapped with a cloth. The defendant gave $200.00 tala to the man and retained the other $200.00 as per his prior conversation with Tala on messenger.
16. The defendant left Faleatiu and headed home around 8pm.
17. The next day, the defendant checked the gun and saw it was a rifle (pulusila).
18. The defendant contacted Tala regarding the gun and told him that he wanted a 22 rifle (pulutasi) or a 12 gauge (faga 12) instead of the rifle he had been given. The gun he had possession of did seemed a rare type of weapon, which not have ammunition and the same would be hard to obtain.
19. Tala told the defendant that his cousin would pick up the gun from him.

20. After three (3) days a person named Manu uplifted the gun from the defendant at the defendant's place at Laulii.

21. Manu gave $100.00tala to the defendant and then he left with the gun.

First Meeting between the defendant and Malele Paulo.

22. Sometime in June 2019, Malele added and contacted the defendant on messenger. Malele instructed the defendant to wait behind the RSA Club at Savalalo and he would pick him up from that location.
23. The defendant complied as instructed. He was picked up by Malele and his friend and they drove to Mulinuu near the 2AP radio station.
24. Malele and the defendant then had a conversation by the sea wall. Malele conspired with the defendant to have both the victim and the Police Commissioner killed which the defendant represented to Malele, that he agreed with this plan. Malele also continued to discuss his own case and the issues he had against the current government.
25. After their conversation, Malele dropped off the defendant behind the RSA Club at Savalalo and gave $20.00 tala to the defendant for his bus fare. The defendant then went home.

2m1 Money transfer from Ta/a - $300.00 ta/a

26. Sometime between June and July 2019, Tala video called the defendant on messenger again and instructed him to uplift the monies from Manu for his preparations of the assassination of the victim at the South Pacific Games opening ceremony.
27. Upon Tala's instructions, the defendant collected $300.00 tala from Manu around 2pm in the afternoon, behind the RSA Club at Savalalo.

3rd Money transfer from Ta/a - $500.00 ta/a

28. Sometime in July 2019, Tala video called the defendant on messenger and asked the defendant to send someone who has a passport to uplift the money sent over. It was suggested to use someone else to receive the money to divert suspicion from the defendant. The money was for the assassination preparations.
29. The defendant told Tala his brother in law's name. Tala then sent $500.00 tala to the defendant through the defendant's brother in-law's name.
30. The defendant instead used the money for his father in-law's funeral.

Second Meeting between the defendant and Malele Paulo at Laulii

31. Sometime between June and July 2019 around 1 lam to 12pm, Malele and his other friend approached the defendant at his house at Laulii.
32. The defendant then had a conversation with Malele and his friend at the defendant's house.
33. Malele relayed to the defendant that he wanted to change their plan to assassinate the victim.
34. Malele suggested to the defendant to have the Police Commissioner killed first before the victim. He then told the defendant not to worry about anything as he had already arranged for a lawyer to assist him.
35. After an hour of discussion, Malele and his friend left the defendant's house.

4th Money Transfer from Tala - $300.00tala

36. Sometime between June and July 2019, Tala video called the defendant on messenger and told him to collect $300.00 tala from his cousin at Tuanaimato. The said money was for the assassination preparations.
37. The defendant uplifted as instructed, $300.00 tala from Tala's cousin and returned home around 8pm.

Second (2nd ) Gun (small pistol .38 revolver obtained from defendant's uncle in law)

38. Sometime between April and August 2019, Tala video called the defendant and asked him why there has been a delay in assassinating the victim.
39. The defendant responded that he did not have the money to buy the gun that he wanted to use.
40. Tala then ordered the defendant to look for a gun and he would send the money for payment.
    
41. The defendant then borrowed his uncle in-law’s old gun (small pistol - .38 revolver) and told his uncle that it would be used in film making. The defendant's uncle in-law gave the gun to the defendant.
42. The defendant took a photo of the pistol and sent it to Tala as the gun he had found. Tala was excited to see that the defendant had possession of a gun that could be used in the assassination.

5th Money from Tala - $400.00

43. Upon Tala's instructions, the defendant met Manu at Matautu in front of the Western Union. Manu gave $400.00 tala to the defendant when he arrived.
44. Tala contacted Manu to have Manu’s vehicle prepared for the defendant to use for the assassination as planned. Manu thus gave his car to the defendant for the said purpose.

45. The defendant and Manu drove from Matautu and dropped off Manu at Vaitele.

46. Manu instructed the defendant to inform Police if he is caught after successfully executing the assassination, that the defendant had rented Manu’s vehicle. Simultaneously, he would notify Police of the same information if he is questioned in this regard.
47. The defendant and his brother-in-law (who was driving) then dropped off Manu at Vaitele and left with Manu's vehicle.

Incident at Catholic Cathedral at Siusega

48. Tala conspired with the defendant to assassinate the victim at the Catholic Cathedral suggesting that this plan be carried out in the early hours of Sunday 4th August 2019 when the victim attends mass.
49. Tala instructed the defendant to approach the victim at church and shoot him there. He had also provided information to the defendant of the location of the Catholic Cathedral and mass time which the victim usually attends every morning.
50. On Sunday 4^th August 2019 around 2:30am, the defendant woke up his brother-in-law to drive him to the Catholic Cathedral at Siusega where the victim is a member of the congregation and attends mass every morning.
51. The defendant was in possession of the pistol he had obtained from his uncle in law.
52. The defendant and his brother in law drove in the vehicle supplied by Manu to their destination.
53. The defendant left his brother in law in the vehicle and went to the Cathedral. He then video called Tala and showed him that he was at the Cathedral and to prove that he had complied with the instructions and also because Tala wanted to witness the assassination.
54. The defendant informed Tala that he wanted to leave the place in case they get caught and additionally, because the victim was not there. Tala then instructed the defendant to leave the Cathedral and head directly to the victim's residence at Siusega to carry out the assassination.
55. Tala directed the defendant where the victim's home was located. However, the defendant went home instead and thus arrived home around 6am in the morning.
56. The defendant and his wife returned the car to Manu on the same day in the evening as per Tala's instructions. Manu then dropped off the defendant and his wife to their home at Laulii.

Incident at the Fish Market at Savalalo

57. Tala contacted the defendant on messenger and the pair conspired to carry out the assassination of the victim at the fish market on a Sunday morning.
58. Tala informed the defendant that the victim usually attends to the fish market in the early hours of Sunday morning for shopping.
59. Sometime in August 2019, Tala video called the defendant again and told him that he would arrange for the vehicle and send money to carry out the plan to assassinate the victim at the fish market on Sunday.
60. Tala then contacted Manu to prepare his car to be picked up by the defendant to use for the assassination of the victim and also to prepare ammunitions to be given to the defendant for the gun used in the assassination.
61. On Saturday 11^th August 2019, the defendant and his brother in-law went to collect the money and brought the car from Manu in front of Western Union at Matautu as per instructions from Tala.
62. Upon arrival, Manu showed the defendant that the ammunition he had prepared were placed in a small box in the car.
63. The defendant and his brother in-law then dropped off Manu and left with Manu's car.
64. On Sunday, (this was Father's Day Sunday) the next day early in the morning, the defendant and his wife drove to the fish market to buy fish for their toonai. The defendant took the small pistol (.38 revolver) he had obtained from his uncle in-law.
65. Upon arrival at the fish market at Savalalo, the defendant video called Tala on messenger and showed him the gun and that he was at the fish market at the time.
66. The defendant left the gun inside the car and went to the fish market to buy fish and upon doing so he saw the victim and his bodyguard at the fish market. The defendant bought fish and returned to the car.
67. The defendant video called Tala and misinformed him that the victim was not at the fish market. The defendant then headed home.
68. Around noon on the same day, Tala called the defendant again on messenger and ordered him to go to Malololelei and kill the Police Commissioner to which the defendant agreed to do, after toonai.
69. After toonai, the defendant and his wife drove to Malololelei where his father in• law was buried, and video called Tala. The defendant showed Tala that he was at Malololelei to make him believe that the defendant was doing what he has been ordered to do.
70. However, the next day, the village of Laulii called the defendant to the village fono where he was questioned regarding this conspiracy to murder the victim.
71. The matter was reported to Police and the defendant was taken to Apia Police Station and was cautioned on 16 August 2019 where he had made full admissions to the offending.

The defendant

72. The defendant is 39 years old of Maagiagi and Laulii. He is married with 4 children aged between 5-18 years. He designs and makes handicrafts. He lives with his de facto’s partner’s family at Laulii.
73. His de facto partner described him as supportive, hardworking, caring and loving. She asks for leniency.
74. Written testimonies were provided by his Bishop, village mayor, and a village matai. All describe him as an honest person who serves the village and church. He has been pardoned by the village of Laulii and was not penalised.
75. He told probation that he met Mr Pauga on Facebook. At the suggestion of Mr Pauga that the defendant assassinate the Prime Minister, the defendant received funds sent by Mr Pauga. He received various amounts of money to purchase a gun. The defendant says that he had no intention of carrying out the assassination and used the money for various family faalavelave.
76. He expressed deep remorse and regret to Probation and says he takes full responsibility for his actions. He says he only did it to obtain money.
77. The defendant has 5 previous convictions, the last being in 2003, for escape. He has convictions in 1998 and 2000 for burglary and theft, and in 2002 for attempted rape.

The victim

78. There was no victim impact report provided to the Court. However the victim is a prominent figure in society being the Prime Minister of Samoa. No doubt this would have been extremely unsettling and unnerving for him and his family. It would have affected the Prime Minister’s movements and led to the need for increased security. No one has the right to put anyone else’s safety at risk. This is exactly what the defendant did.
79. The Court is now in possession of a letter from the Prime Minister dated 7 November 2020 saying that he met with the defendant and blessed him.

Aggravating features

80. The aggravating features are:

a. There was a lot of planning and premeditation that went into this conspiracy.

b. It took place over 3 ½ months and transcended national borders.

c. There were active moves to be at places where the victim frequents and a weapon was obtained; and

d. The impacts on the victim.

Mitigating factors

81. His early guilty plea, his reconciliation with the Prime Minister, his remorse, his cooperation with authorities, and his personal circumstances (as seen through the references provided to the Court) will be taken into account.

Discussion

82. Prosecution submits that a starting point of 10 years’ imprisonment is appropriate. Defence Counsel seeks the Court’s leniency.
83. The offence for which the defendant is sentenced today is extremely serious. The punishment is up to life imprisonment. A conspiracy to murder the Prime Minister of any democratic country in the world is an attack on democracy itself. It cannot and should not be taken lightly. Despite any issues the defendant may have with the Prime Minister, the office of the Prime Minister of Samoa is deserving of respect, and a threat to the personal safety and security of the Prime Minister is unacceptable. Similar minded individuals will do well to remember this.
84. Having considered the aggravating features of his offending, the starting point for imprisonment is 10 years as recommended by the Prosecution. There will be no uplift to the starting point for his previous convictions as the last occurred about 17 years ago.
85. For the reconciliation with the Prime Minister, I deduct 6 months, for his remorse I deduct 6 months, for his cooperation with authorities I deduct 6 months, and for his personal circumstances I deduct 6 months. Finally, I deduct 3 years for his early guilty plea.
86. The defendant is convicted of conspiracy to murder and sentenced to 5 years imprisonment.
87. Time in custody to be deducted.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN