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Police v Faauila [2007] WSSC 100 (9 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

ETEUATI FITUONO SEUMANU FAAUILA,
male of Sapulu Salelologa.
Accused

Counsels: M. Zarifer & L. Petaia for prosecution

1. Roma for the accused
   

Hearing: 5th, 6th June 2007 & 2nd July 2007
Sentence: 9th July 2007

SENTENCING REMARKS OF NELSON J.

This is another case of manslaughter, involving the use of a firearm but I say at the outset that the circumstances and operative principles in this case are slightly different from the previous one of Police v Sani Tafea.

Firstly I will deal with the Coroners finding. I find that Lipoi Mamaia, a male 23 years old of Salelologa Savaii died in the evening of 6 May 2006 at Salelologa in Savaii. He died as a result of fatal gunshot wounds inflicted upon him by the accused Eteuati Fituono of the same village.

The accused in this case was originally charged with murder but after a defended hearing, he was found guilty by a panel of assessors of the crime of manslaughter. The evidence shows that both the deceased and the accused had been drinking alcohol on the day in question and that the deceased was drunk. When the deceased returned to his house he came across the accused and a friend drinking across the road. He got into an argument with the accused and according to the accuseds friend, he grabbed the accused by the neck and said to him "pe e te fia ulavale?" (he challenged him). They managed to calm down the deceased, nothing further happened and the accused who is a friend of the deceased took the drunk deceased to the deceaseds house. Not long after the deceased came back to the two men, this time with a rock. He threatened the accused with the rock and the accused again calmed the deceased down and with the assistance of the deceaseds brother, returned him to his house. The drunken deceased would not give up. He returned again to the two men and this time he started throwing rocks at them. One rock hit the accuseds friend but there is no evidence the accused knew this. The men fled the area and there was also evidence some of the rocks hit the house of the accused. Obviously the accused had had enough of the deceased by this time and he went to his house and fetched a shotgun. He came back to the scene and at close range shot and killed the deceased with a single gunshot to the chest and heart area, the gunshot being fired from a front on position.

On these facts the legal defence of provocation was left to the assessors to consider and they returned a verdict of guilty of manslaughter, no doubt based on the provocative acts the deceased carried out against the accused. The question today for the court is an appropriate sentence for the accused given these circumstances.

The prosecution submits a sentence in the range of 6 to 8 eight years imprisonment is appropriate. Counsel for the accused submits however that given the high degree of provocation a sentence of half that or around 4 years is more applicable. In this regard counsel for the accused points to the decision of this court in Police v Ausage made on 30th April this year where a penalty of 5½ years was imposed, following certain English Guidelines for sentencing in cases of manslaughter by provocation.

While I do not take issue with the usefulness of English Guidelines in cases of manslaughter under provocation, the rider must be imposed that they are Guidelines only and they are Guidelines developed for another jurisdiction. Local considerations and conditions in the society and country that we live must be borne in mind particularly in cases such as the present involving issues like the stoning of the accused and his friend and the stoning of the accuseds house by the deceased. I doubt this sort of thing happens in England or that there exists in that jurisdiction the social undercurrents associated with stones. I would also note that Police v Ausage itself is distinguishable on its facts as that was a case of spousal homicide where the provocation included the deceaseds reference to previous infidelities and the deceased biting the accuseds fingers. No firearm was involved in that matter either. But if I were to employ the English Guidelines I would treat the present case in the same category as the court in Ausage did, I would put the provocation in this case at the substantial degree of provocation level of 4 to 9 years. As against the accused, I would also emphasize in accordance with those Guidelines the "key importance" of the fact that the weapon used here namely the gun was not to hand at the scene of the shooting but was retrieved by the accused from his house, a distance away.

As to the aggravating factors in this case, I do not propose to repeat the courts comments in relation to firearms offending as outlined in the matter just concluded of Police v Sani Tafea. The need for a deterrent sentence is as operative here as it was there. In the present case there is no questioning the operation of provocation and the fact that the accused acted under provocation from the drunk deceased. But the accuseds use of a firearm is to be soundly condemned and the courts sentence must reflect that. The police are there to deal with drunk and disorderly people and behaviour and the accused or anyone else in his position is not free to take the law into his own hands and administer his own brand of justice. The village council and other cultural apparatus are also present in villages to address such situations. No question that the accused was quite wrong in what he did.

In your favour Eteuati, I do take into account as your counsel has submitted certain matters. Firstly, the circumstances of the offending and the deceaseds persistent and unreasonable behaviour. Secondly, your cooperation with the police as shown by your full confession and turning yourself in to their custody after the shooting. Thirdly, the fact that the accused is a first offender because the prosecution has rightly conceded the accuseds previous conviction in 2003 was for an unrelated offence and should not be held against him in the present matter.

Also in the accuseds favour is the fact that his family presented the traditional ifoga to the deceaseds family and this was fully accepted. The accuseds family also contributed to the deceaseds lauava and funeral expenses and they have paid a substantial fine to the Salelologa village council. As for his personal circumstances the accused was aged 30 years at the time of the offence, of average education and renders tautua to his family through his plantation. He is well regarded by his family and in the testimonials as to character submitted to the court. Alcohol was involved in this offending but it was not put forward by the accuseds counsel as a mitigating factor and indeed alcohol can never be a mitigating factor for offending. It may make the offending understandable but does not render it excusable.

As stated, the maximum penalty for the crime of manslaughter is life imprisonment. However this is not a case where the court needs to resort to that sort of penalty. Given the circumstances of this case and the involvement of a firearm and the observations of the court as to firearms offending an appropriate starting point is 10 years imprisonment. Considering all the factors I will accept the prosecutions recommendation but at its lower end. The accused will be convicted and sentenced to 6 years imprisonment.

JUSTICE NELSON