supreme court of samoa
Police v Tavui [2013] WSSC 125

Case name: Police v Tavui
Citation: [2013] WSSC 125
Decision date: 2 September 2013
Parties: police (prosecution) and Tofele Lata Tavui male of Vailele
Hearing date(s): 24 – 26 July 2013
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
M T Lui and T Nelson for prosecution
T S Toailoa for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961, ss.63(b)(c), 79
Police Offences Ordinance 1961, s.25
Cases cited:
DPP v Beard (1920) 14 Cr App R 159
Woolington v DPP (1935) 25 Crim App R 72
Broad Hurts v DPP [1964] AC 441
Police v Leifi [2005] WSSC 25
Police v Filifili Pita Junior (6 February 2013)
Police v Siano [2010] WSSC 25
Police v Semu Pio (5 July 2013)
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
tofele lata tavui male of Vailele
Defendant

Counsel:	M T Lui and T Nelson for prosecution
T S Toailoa for defendant
Hearing:	24 – 26 July 2013
Oral Rulings:	26 July 2013
Sentence:	2 September 2013
Charges:	Grievous Bodily Harm and Armed With a Dangerous Weapon

sentence OF slicer J
1.	Tofele Tavui has pleaded guilty to the crimes of willfully causing grievous bodily harm contrary to the Crimes Ordinance 1961 section 79 and being armed with a dangerous weapon, contrary to the Police Offences Ordinance 1961 section 25.  The maximum sentence for the former is seven years imprisonment and for the latter, one year imprisonment.
2.	The defendant owned and lived with his wife in a house also occupied by the complainant.  The complainant, Tofilau Ivara had his own bedroom and working room in that home.  Tofele had been heavily drinking during the day and early evening.  He had a grievance concerning money against Ivara and on the evening of 25 March 2013 obtained a firearm, went to Ivara’s room and holding the firearm said that he was going to shoot him.  When asked why, he said it was proper to do so.  He fired the weapon, hitting Ivara in the chest.  Tepora, the defendant’s wife intervened and wrestled with her husband and Ivara blocked the weapon.  Later the defendant said that he had fired the weapon because he was trying to ‘correct Ivara’s stupidness’.  He was later presented from reloading the weapon.
3.	Tofilau Ivara was admitted to the hospital.  The bullet had entered the body near the nipple but did not penetrate into the chest or strike any major organ.  Nevertheless it caused grievous bodily harm.
4.	Much of the trial was taken up to the nature of the grievance.  It is not for this Court to determine the validity or invalidity of that grievance except to find that the defendant claimed that grievance.
5.	The line of the defence at trial was that the shot was fired to harm but not kill the victim.
6.	The defendant was charged with attempted murder but at trial by assessors the Court upheld a no case submission that on the evidence before the assessors at the conclusion of the prosecution case it would be unsafe and unsatisfactory for the assessors to return a verdict of guilty to that crime since the crimes of attempted murder required the presence of a specific attempt to bring about the death of the victim.  The ex tempore reasons for upholding the no case submissions were stated on 26 July 2013.  It is not necessary for the purpose of this sentencing determination to consider the question of intoxication in the sense discerned in the English cases such as DPP v Beard (1920) 14 Cr App R 159, Woolington v DPP (1935) 25 Crim App R 72, Broad hurts v DPP [1964] AC 441 and the like.
7.	Following the ‘no case’ ruling the defendant pleaded guilty to wilfully causing grievous bodily harm and unlawful possession of a firearm.
Pre-sentence Report
8.	The Court does not accept the portion of the pre-sentence report that there had been no hostility or grievance and that the shooting had been accidental.
Ifoga and Reconciliation
9.	The pre-sentence report also states that:
“Tofele related to the high chiefs of his village had made a formal ifoga to the victim’s village of Falelatai and was accepted as confirmed by the victim himself, Lupematasila Fa’amanu.  However, Lupematasila informed the Service that there was never any reconciliation between himself and Tofele regarding this matter.”
10.	The Court does not accept that Ivara has been reconciled with the defendant.  He says that he has forgiven the defendant ‘but from time to time he gets angry’. 
Victim Impact
11.	His physical injuries are:
-	ongoing pain to the chest and scarring;
-	the continued presence of the bullet in the chest;
-	injury to his left hand; and
-	time for healing and medical expenses for his treatment.
Psychological Impact
12.	The victim impact report states:
“The victim felt that he wanted to retaliate after he was shot and was angry.  He struggled spiritually as a result of being shot by the Defendant.
The victim says that it would be difficult to forget and he thinks of the incident all the time.  No one has ever tried to do this to him.
The victim struggles to understand how the Defendant did not show any signs of displeasure with the victim before he shot the victim.  This is affecting his mind.
The victim lives in fear because it is the first time that someone has tried to do something like this.  The victim and his wife sleep with all the outside lights on because they fear this may happen again.  As a result, their power bills have increased.
The victim and his wife used to live in their house with open doors.  Now the victim confirms that even during the day they now lock their doors.  This is because the victim is now scared.
The victim also confirms that at work he locks the doors at his office now because he is scared that the defendant will send someone to hurt the victim.  The victim also fears being shot by anyone.
The victim is scared and worried that the Defendants family will do something to hurt the victim again or the victim’s family.”
Commencing Point
13.	The prosecution submits that for the grievous bodily harm an appropriate starting point of six years imprisonment should be chosen and six months for the firearm offence.  It relies on cases such as Leifi [2005] WSSC 25 (two years and three months for punching a child); Filifili Pita Junior (6 February 2013 (alcohol fueled assault with piece of timber); 12 months); Siano [2010] WSSC 25 (provoked shooting to body; commencing point: five years; actual: three years); Semu Pio (5 July 2013) (five years commencing point, reduced to two years and four months).
14.	Any order made with respect to the firearm offence should be made concurrent with the primary sentence.
15.	The commencing point ought be that of six years.  The use of a firearm and the risk of death, given that it struck the upper part of the body was high.  Whilst the defendant was affected by alcohol and his conduct based on a sense of grievance it was fortune alone which prevented actual death or more serious injury.  As the Court has stated in its primary reasons for upholding the no case submission, had the victim died, the defendant could have been convicted of murder under the Crimes Ordinance 1961 section 63 (b) and (c).  Intoxication is rarely treated as mitigating and in some cases of violence it is regarded as an aggravating matter especially in those involving the use of a firearm.  Here it is relevant to explain the absence of premeditation.  It was the intoxication which heightened the sense of grievance.
Prior Conviction
16.	The defendant has prior convictions of unlawful possession of firearms, namely
	1 September 2006	4 .38 special			fine $2,500
	1 September 2006	1 automatic .22 pistol		fine     $800
Mitigation
17.	The pre-sentence report states the defendant to be fifty-five years old; lives in a de-facto relationship with Tepora and has two young children.  He lives with his family.  His family is dependent on the assistance of members of his extended family.
18.	Tofilau Ivara has confirmed a formal reconciliation between the villages of Vailele and Falelatai.  This relates to the relationship between the villages.  It has some relevance but little in relation to the relationship between the victim and the offender.  In addition the prosecution was brought on behalf of the State of Samoa and as such did not involve the relationship between the villages.  It will be given some, but little weight. 
19.	Tepora describes him as a loving husband and a good father to his children.  His previous Church Minister states that the defendant is a supportive, responsible and humble man within the community.
Time Served
20.	The defendant was arrested on 11 April 2013 following a breach of bail conditions and has remained in custody since that date.  He is entitled to the deduction of four months and twenty-one days.
21.	The appropriate sentence is five years less the four months and twenty-one days already served.
ORDERS:
(1)	Tofele Lata Tavui be convicted of the crimes of Grievous Bodily Harm and being Armed with a Dangerous Weapon.
(2)	Tofele Lata Tavui be sentenced to a term of imprisonment for a period of five years (less four months and twenty-one days) for the crime of Grievous Bodily Harm.  For the purpose of parole, the sentence is that of five years imprisonment to commence as and from 11 April 2013.
(3)	Tofele Lata Tavui be sentenced to a term of imprisonment for a period of six months for the firearm offence, such sentence to be concurrent with that stated in Order (2).

…………………………
    (JUSTICE SLICER)