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Police v Vaaulu [2023] WSSC 48 (24 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Vaaulu [2023] WSSC 48 (24 August 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

LEULUAIALII SELESITINE VAAULU, female of Moata’a and Solaua Saoluafata.

Defendant

Counsel: T Sasagi for Prosecution

A Lesa for Accused

Sentence Submissions: 2 August 2023
Decision: 24 August 2023

SENTENCE

The Charges:

1. The Defendant has pleaded guilty to assault causing grievous bodily harm contrary to section 118(1) of the Crimes Act 2013; being armed with a dangerous weapon; discharging a firearm and possession of an unregistered firearm.

The Offending

2. A disputed Summary of Facts hearing was held on the 9^th June 2023. The facts based on the disputed Summary of Facts hearing and accepted in the Amended Summary of Facts show that on the 29^th October 2019, the Defendant was returning home with children in her car. The victim and other young men were at the front of the Defendant’s home. They had moved white rocks placed alongside the roadside in front of the Defendant’s home. A verbal exchange then occurred between the Defendant and victim following which the Defendant continued into her property and the victim and his male friends went off to a field to play.
3. At about 7pm, the victim and the males returned walking past the Defendant’s home. The Defendant’s husband Sapau came out with a pipe and “scolded the victim and his friends.” A disagreement broke out between the victim and Sapau and Sapau then struck the victim with the pipe striking the victim on the arm. The victim then punched Sapau causing Sapau to fall to the ground.
4. In her evidence, the Defendant said that she then went and got the gun used for their cattle, an unregistered .22 rifle. The gun was stored in a small room. She returned and fired the gun skyward. According to the Defendant, they did not disburse so she fired the gun off again whilst aimed at the victim. Although the Defendant’s evidence was to the effect that the second set of shots were random and did not target the victim, I rejected that contention on the evidence and the Defendant’s own plea of guilty to the charge of inflicting grievous bodily harm with intent, section 118(1) Crimes Act 2013.
5. As a result, the victim sustained a bullet wound to the left-side of his buttocks. The victim was admitted to hospital on the 30^th October 2019 and discharged the following day. In his VIR, the victim says that he has not been informed when the bullet can be removed from his body and complains that he feels pain at the site of the injury if walking too long.

The Accused

6. According to the Amended Summary of Facts, the Defendant is a 54 year old married woman. According to her Pre-Sentence Report (PSR), she is 57 years old. I accept on the material before me that the Defendant is presently 57 years old and was 54 years old at the time of her offending.
7. The Defendant has seven (7) children. She has lived overseas in the Philippines studying computer programming in the 1980s and accounting and social work in the USA in the 1990s. She has been employed in various roles at the LDS, Pesega, having returned to Samoa permanently in the early 2000s. She is the sole caregiver to her mother.
8. The Defendant has no prior convictions. She has numerous positive character references in support of her character from her LDS Bishop, her Pule Nuu from Moata’a and Sa’o of her family from Falealili.

The Victim:

9. The victim is a 22 year old male of Solaua. He is single and unemployed. There is little other material before me concerning the victim.

The Aggravating and Mitigating Factors:

10. The aggravating factors of your offending are:
    • (i) your use of a firearm to shoot the victim;
    • (ii) the vulnerability of the victim who was unarmed at the time; and
    • (iii) The injuries suffered by the victim, noting these however are not life threatening.
11. In terms of your offending, I accept as mitigating that in part, you were acting in defence of your husband Sapau. As a result of Sapau’s complete stupidity confronting the victim and his friends and striking the victim with a pipe, Sapau was punched, fell to the ground and was surrounded by the victim and his male friends. You acted to defend him, but went too far (R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [32]).
12. There are no aggravating features personal to you. Mitigating factors personal to you are that you are genuinely remorseful. You are also a person with prior good character. You are now 57 years old, highly educated and have spent considerable time serving the LDS Church and have very supportive references. You have through your family also performed an ifoga accepted by the victim’s family. I also take into account your lengthy bail since November 2019 which included conditions that prohibited you from your returning to your home in Solaua (Lealaiauloto v Attorney General [2015] WSCA 2 (17 April 2015)). Relevant also is your personal circumstances as the sole care giver of your mother. Finally, I take into account your guilty plea. This however was not at the first opportunity and is to a degree diminished by the Disputed Summary of Facts hearing.

Discussion

13. Leuluaialii, you have until now lived a good and law abiding life. You have, it seems, dedicated your life to your church, your family and village. I have also had regard to the references from your brother and son. These all speak to your kindness and character.
14. On the 29^th October 2019 however, you took an unregistered firearm and shot the victim with the intention of causing him grievous bodily harm. There is, it seems, a history of bad blood between you and your family and others in the village concerning village matters that pre-dates this incident. This is not uncommon and too often leads to violence in our country. These disputes should be dealt with peacefully, maturely and with mutual respect between people.
15. I also accept that to a degree, the victim’s actions in moving the rocks on the road prior to the shooting is likely to have been a petty act by the victim and his friends to cause annoyance. That however is no excuse for your actions.
16. The violence that you carried out that day was serious. Your counsel has asked for a non-custodial sentence. A non-custodial sentence however is inconsistent with the general sentencing practices of the Court. Further, Samoan Courts have applied the sentencing bands in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, however, adjusted to reflect Samoa’s maximum ten (10) years imprisonment term compared to fourteen (14) years for intentional grievous bodily harm offending in New Zealand.^[1] Samoan courts have also denunciated the use of firearms to inflict serious injury and imposed deterrent sentences to deter not only the offender but others from using guns to shoot other people. In Police v Leaoaniu [2013] WSSC 108 (23 September 2013) Nelson J stated:
    • “The court in previous cases has imposed deterrent sentences in an effort to deter people from resorting to the use of such lethal weapons. Such sentences have issued in the past and will continue to issue. The message to the public must be unambiguous and not be misunderstood. If you use a gun on another person you can expect little leniency from the court.”
17. In Police v Gabriel [2019] WSSC 40 (5 June 2019), a similar message was expressed:
    • “...A community based sentence in cases such as this involving the intentional use of a shot gun to inflict serious injury on another human being would send the entirely wrong message to the community. It must be understood that the use of a gun another person to settle a dispute will be very firmly dealt with by the Courts and in cases such as yours, almost inevitably lead to imprisonment.”
18. In Taueki, the New Zealand Court of Appeal also made the point at [31] that:
    • “The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be...”
19. Your counsel submits that your offending falls within band 2 of the Taueki bands (5 – 10 years imprisonment start point (NZ)) but that given some of the authorities, a non-custodial sentence is available. Prosecution seek a 5 year sentence start point.
20. First, a non-custodial sentence is not appropriate. You took an unregistered firearm and with intention to cause grievous bodily harm, intentionally shot the victim causing him grievous bodily injury. Anyone who touches a firearm and uses it with the intention of and does cause grievous bodily harm to another human being must understand that such an act will almost inevitably lead you to the gates of Tanumalala Prison.
21. Although your counsel submits that your matter falls within band 2 of the Taueki bands, in my view however, band one applies. As the Court in Taueki stated at [36] with reference to some of the aggravating factors particular to GBH offending stated:
    • “Where none of the aggravating factors referred to at para [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.” (emphasis added)
22. The injuries sustained by the victim were not life threatening nor the violence extreme. It was a single shot and there was no premeditation. There are two aggravating features of your offending from those set out in Taueki: the use of a firearm and the vulnerability of the victim. Adjusting for the lower 10 year maximum sentence for GBH offending in Samoa, I adopt 3 year sentence start point. From that start point, I deduct 6 months for your shooting of the victim in an effort to protect Sapau. From this adjusted start point, I deduct 5 months for your prior good character and remorse; 4 months for your lengthy bail and bail conditions taking you away from your home; 4 months for the ifoga; 4 months for your personal circumstances; and 3 months for your late guilty plea leaving an end sentence of 10 months imprisonment.

Result

23. Accordingly, you are convicted and sentenced as follows:
    • (i) Assault grievous bodily harm, S2005/19 – 10 months imprisonment less any time remanded in custody;
    • (ii) Possession of unregistered firearm (charge 5, Charging Document dated 2 December 2019) and armed with a dangerous weapon (S2006/19), 3 months’ imprisonment each charge, concurrent; and
    • (iii) S2008/19 discharge firearm, convicted and discharged.
      

JUSTICE CLARKE

^[1] See: Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017); Police v Sani [2021] WSSC 3 (29 January 2021); Police v Matagi [2022] WSSC 6 (8 March 2022).