Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Ah Kee [2009] WSSC 78 (21 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE

Prosecution

AND:

KAISA AH KEE
male of Lotoso’a Saleimoa
Defendant

Presiding Judge: Justice Vaai

Counsel: A Patu and L Su’a for prosecution
S Leung Wai for defendant

Sentence: 21 July 2009

SENTENCE

The defendant was found guilty by a panel of assessors of the charge of attempted murder. This offence was committed on the 9th February 2008 at Lotoso’a Saleimoa when the defendant shot the victim.

Victim’s version

According to the victim’s version of events, earlier that day the defendant’s pig was attacked by the victim’s dogs in the victim’s plantation. The wife of the defendant went over and took the pig to their house and later that day in the afternoon the victim heard a gunshot. Shortly after another gun shot was heard much closer to the victim’s house.

The victim was then told by one of the boys to go after his younger brother who has gone over to where the gunshot came. The victim went and met his brother running back. At about the same time the victim saw the defendant. They argued and in the course of the argument the defendant shot the victim.

Defendant’s version

The defendant told the court that when he got home that afternoon he was told by his wife and daughter about his pigs being attacked and slaughtered by the victim and his dogs. He was angry but his wife calmed him down. But his son wanted the defendant to shoot a bird. He got the gun and two ammunitions. He shot the bird but missed. He proceeded with the gun to look for the other pig that was attacked by the victim and his dogs.

He met up with his brother in law and they talked; and at that time the victim, his brother and two other boys came. They were armed with knives and stones. They wanted to attack the defendant who attempted to retreat, but when a stone was thrown and the others advanced the defendant in self defence loaded the gun and discharged without aiming.

The assessors obviously did not accept the defendant’s version as credible. One of the reasons why the assessors probably did not believe the defendant’s story was that when defence counsel cross examined the victim and his brother they were not questioned about the defendant talking with the brother in law. In fact the brother in law was never referred to in the cross examination.

Consequences of offending

The victim suffered severe injuries. He was hospitalised for about 4 months at the Moto’otua hospital before he was transferred to New Zealand for further management.

As a planter, the victim cannot perform the normal work as planter that he was accustomed to before the accident. According to the victim’s impact report the victim now suffers from permanent back pains as a result of the injuries.

Mitigation

I take into account what the probation report has stated in favour of the defendant. From what I have read in the probation report and the evidence that was heard in this court, the defendant impresses as a hard working, self motivated family man. Despite his obvious lack of formal education he has developed a plantation and raised pigs to support the family. The several testimonials I have read speak highly of the defendant. I accept the defendant is remorseful and the offending is completely out of character. A formal ifoga has also been affected and the two families have reconciled.

Discussions

Attempted murder is a serious offence. It attracts a sentence of life imprisonment. Levels of sentences imposed in the past have ranged between 4 to 6 years, 6 months imprisonment according to the memorandum filed by prosecution.

Purpose of sentence is to deter. Rehabilitation however should not be ignored. Although it is not a prevalent offence it is nonetheless very serious. Attempted murder however, is a very serious offence.

Sentence

As a starting point, I taking into account circumstances surrounding the offending, I take 6 years as a starting point. I deduct 8 months for the previous good character. I deduct another 8 months for the remorse and the ifoga performed. The defendant will serve four years and eight months imprisonment.

JUSTICE VAAI