Police v Vaili [2025] WSSC 1 (6 February 2025)

IN THE SUPREME COURT OF SAMOA
Police v Vaili [2025] WSSC 1 (6 February 2025)

Case name:	Police v Vaili
Citation:	[2025] WSSC 1
Decision date:	6 February 2025
Parties:	POLICE (Informant) v MISIAURO DAVID TUA OVALENI TATUPU VAILI a.k.a. MASIAURO OVALENI a.k.a MASIAURO TALIMATASI FAISAUVALE, 22 year old male of Faleatiu (Accused)
Hearing date(s):	10th December 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	You are accordingly convicted and sentenced on the charges as follows less remand in custody: (a) manslaughter on a totality basis to 9 years and 9 months imprisonment; (b) presenting firearm’ unlawful possession of firearm; and procuring a firearm without a permit – 18 months imprisonment each charge concurrent to manslaughter; (c) armed with a dangerous weapon, 1 year imprisonment concurrent; and (d) discharging firearm, convicted and discharged. As this court also sits a Coroners Court, I issue the Coronial Finding certifying that Filipo Suitupe a.k.a Filipo Suitupe Faamoe Paufai, a 29 year old male of Faleatiu and Sataua died at Faleatiu in the evening of 21st March 2024 as a result of severe haemo-thorax and severe traumatic chest injuries caused by gun-shot injuries. I further confirm that the person who shot Filipo Suitupe causing his death has been dealt with according to the law.
Representation:	T. Fesili for Prosecution A Matalasi for Accused
Catchwords:	Manslaughter – possession of an unlawful firearm – procuring a firearm – armed with a dangerous weapon – discharging firearm – previous convictions – schizophrenic – methamphetamine & marijuana user – village penalty imposed – reconciliation – mental health diagnosis – custodial sentence imposed.
Words and phrases:
Legislation cited:
Cases cited:	Police v Iva [2011] WSSC 142; Police v Liligia [2007] WSSC 101; Police v Vavao [2011] WSSC 81; R v Abrahams (1993) 10 CRNZ 446.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MISIAURO DAVID TUA OVALENI TATUPU VAILI a.k.a MASIAURO VALENI a.k.a MASIAURO TALIMATASI FAISAUVALE, 22 year old male of Faleatiu

Accused

Representation: T. Fesili for Prosecution

A Matalasi for Accused

Sentencing Hearing: 10^th December 2024
Sentence Decision: 6^th February 2025

SENTENCE

1. Misiauro, you appear for sentence on charges of manslaughter which carries a maximum penalty of up to life imprisonment, presenting a firearm, possession of an unlawful firearm, procuring a firearm, armed with a dangerous weapon and discharging firearm.

The Offending

2. You accept the Summary of Facts as amended dated 9^th December 2024. This incident occurred at Faleatiu on the 21^st March 2024 over a missing horse belonging to your uncle Kilifi. Your uncle had received information that Filipo Suitupe had his horse. At around 6.00pm, your uncle went to Filipo’s home with you and others. Kilifi carried a golf club and you carried a .22 Rugger semi-automatic rifle. When your group arrived at Suitupe’s home, he was outside with his 9 year old cousin. Inside his home were his family members including his cousin and his wife and their child. Kilifi called to Suitupe “sole o le a le mea ua e gogoa ai la’u solofagua?” He replied, “Malie sau e avaku lau solofagua ouke lei alu aku aumai sa ou mauaina le solofagua.”
3. Unhappy with Suitupe’s response, Kilifi attempted to hit Suitupe. Suitupe fled and as he fled, he told Kilifi to take the horse. Holding the rifle, you discharged it twice towards Suitupe’s feet. As he ran, you aimed and fired the third shot at his back which struck him. Suitupe continued to run towards the back of his house. You pursued him inside his house searching through the rooms. At the time, Suitupe’s cousin’s wife and child were in the house, she feared for the child’s safety. When told that Suitupe had fled outside, you left.
4. As you left, you and Kilifi heard Suitupe call out “Fia ola.” Kilifi then instructed you and his son to search for Suitupe. You found him at the back beside a pulu tree in his pa-povi. You and others carried him back to his house where you attempted to treat his wounds. You then assisted with getting your mother’s car to transport Suitupe to the hospital and handed yourself into police the next day.

The Accused

5. You are a 22 year old male from Faleatiu. You are the eldest of 7 children completing school to year 11. You are married with two daughters, 3 years old and 7 months old. Although your mother speaks of your good character, you have serious convictions for similar violent offending in 2019 for assault grievous bodily harm, possession of unlawful weapon, armed with a dangerous weapon and discharging firearm. You were sentenced to 18 months imprisonment.
6. You explained to the Probation Service that when you committed this offending, you had been drinking alcohol and smoking marijuana the night before. When examined by Dr Epaggelia Efu who prepared a Psychiatric Report, you disclosed a history of alcohol, marijuana and methamphetamine use. Dr Efu diagnosed you with schizophrenia with prominent passivity phenomena.

The Victim

7. The victim was a 29 year old male from Faleatiu and Sataua. No VIR was filed, however, police confirm that the victim is a former-prisoner. Little else is known about him except for the little that is otherwise gleaned from the Summary of Facts.

Aggravating Factors

8. There are a number of serious aggravating features to your offending Misiauro:
   • (a) A degree of premeditation. You approached Suitupe’s home armed with the gun and shot at him twice before shooting him in the back. However, premeditation is at the lower end of the spectrum. Having also read your PSR, you armed yourself at the outset to go to and confront Suitupe but armed yourself as you went to his home;
   • (b) You used a weapon to inflict the harm on Suitupe, shooting at him multiple times as he fled;
   • (c) Suitupe was particularly vulnerable. You went in a group, Suitupe was unarmed and after your uncle tried to assault Suitupe, you shot at him 3 times including in the back as he fled from you and your group;
   • (d) Your violent offending was perpetrated in the presence of at least one child. Such offending, particularly with guns, not only places children at serious risk of physical harm but also the psychological harm that follows from witnessing such traumatic events;
   • (e) You unlawfully entered into Suitupe’s home in search of him while a woman and her young child were present. This was a gross invasion of their home where they are entitled to feel safe; and
   • (f) The harm caused by your offending.
9. Aggravating to you personally is your prior conviction for similar violent offending to which I referred to earlier.

The mitigating features

10. I accept as mitigating the following factors:
    • (a) payment of the village penalty and assistance to funeral expenses by your family;
    • (b) the rendering of assistance to Suitupe after he was shot;
    • (c) the reconciliation that has been carried out confirmed in the Supplementary PSR and allowance for a degree of remorse by you reflected in the PSR. It is noted however that when interviewed by the Probation Service, the remorse you expressed related to your own circumstances and where you find yourself and not about the harm you have caused;
    • (d) your schizophrenia (see Police v Kobayashi [2017] WSSC 59);
    • (e) assistance to police by handing yourself in the next day; and
    • (f) your guilty plea.
11. Your counsel sought a deduction for your personal circumstances. The mere fact you are a father of two or the “right hand” of your mother while your father was in prison does not qualify you for a deduction on this basis.

Discussion

12. Misiauro, your schizophrenia is a result of your long-term use of marijuana and methamphetamine. Your schizophrenia at such a young age should be a warning to so many others foolish enough in our community to use ice and marijuana of the severe mental health consequences that these drugs can have.
13. Your offending can only be described as very serious. You went to Suitupe’s home in a group together with your uncle. Your uncle was armed with a golf club and you were armed with a .22 rifle. When your group confronted Suitupe, he was conciliatory saying “malie sau e avaku lau solofagua...” and saying he found the horse. However, your uncle tried to strike him with the golf club and Suitupe understandably fled. You then shot at him 3 times, twice towards his feet and the third in the back. Not being satisfied with the harm you caused, you then went inside his home in search of him. You terrorized Suitupe and his family.
14. Prosecution seeks a 12 to 15 year sentence start point. Your counsel submits a start point of 12 to 13 years imprisonment. Both counsel refer me to the same authorities where 15 year sentence start points were adopted. There is no question that a lengthy custodial sentence is warranted. You have serious prior convictions from 2019 of a similar nature involving the use of a gun and the inflicting of grievous bodily injuries. Now, you have killed a man in very similar circumstances. Today’s sentence is with a view to protecting the community from you, to deter you and others from this type of violent offending and to denounce your conduct.
15. Having considered the authorities, your offending can be differentiated from those of Police v Iva [2011] WSSC 142; Police v Vavao [2011] WSSC 81 and Police v Liligia [2007] WSSC 101 because of the lower degree of premeditation. The appropriate start point in my view in this case is 13 ½ years’ imprisonment. I uplift that start point by 18 months to 15 years for your prior convictions. From the adjusted start point, I deduct 9 months for the payment of the village penalty and assistance to funeral expenses; 3 months for the assistance rendered to Suitupe after he was shot; 12 months for the reconciliation that has taken place and 3 months for your remorse, though it really concerns your own circumstances. In terms of your mental health, you represent a serious risk to the public of violent re-offending (See: Geoff Hall Hall's Sentencing (looseleaf ed, LexisNexis) at [I.6.1(ca)] ref: R v Abrahams (1993) 10 CRNZ 446). While I will extend a discount, it is a reduced deduction of 6 months due to the risk you represent to the public. From the balance, I deduct 30 months for your guilty plea after the reduction of the charge of murder to manslaughter leaving an end sentence of 9 years and 9 months imprisonment. On your release, authorities should ensure that you receive appropriate support to minimize the serious risk you represent to the public.

Result

16. You are accordingly convicted and sentenced on the charges as follows less remand in custody:
    • (a) manslaughter on a totality basis to 9 years and 9 months’ imprisonment;
    • (b) presenting firearm’ unlawful possession of firearm; and procuring a firearm without a permit – 18 months imprisonment each charge concurrent to manslaughter;
    • (c) armed with a dangerous weapon, 1 year imprisonment concurrent; and
    • (d) discharging firearm, convicted and discharged.
17. As this court also sits a Coroners Court, I issue the Coronial Finding certifying that Filipo Suitupe a.k.a Filipo Suitupe Faamoe Paufai, a 29 year old male of Faleatiu and Sataua died at Faleatiu in the evening of 21^st March 2024 as a result of severe haemo-thorax and severe traumatic chest injuries caused by gun-shot injuries. I further confirm that the person who shot Filipo Suitupe causing his death has been dealt with according to the law.

JUSTICE CLARKE