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Police v Toli [2010] WSSC 4 (22 February 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Prosecution

AND:

MAPU FARAO TOLI
male of Mulifanua.
Accused

Counsel: R Titi and G Patu for prosecution
L Va’a-Tamati and LT Masipa’u for accused

Sentence: 22 February 2010

SENTENCE

The charges

1. The accused pleaded not guilty to the charges of attempted murder and causing willful damage to property. He then stood trial before a panel of assessors on Thursday and Friday 21 and 22 January 2010 at the old Courthouse in Apia. That was the last sitting of the Supreme Court in the old Courthouse.
   
2. At the conclusion of the trial, the accused was found guilty of attempted murder and causing willful damage to property. He is now appearing for sentence in the new Courthouse at Mulinuu which was opened on Monday 25 January 2010.
   

The offending

3. The victim in this matter is a 59 year old male who lives in New Zealand. At the time of these offences he was visiting his family at Mulifanua and was staying in one of the houses which belong to his brother. This is a single-storey European style house with louvre windows.
   
4. On Monday 3 November 2008, the victim was at the house of his brother at Mulifanua. The electricity went off at about 4pm in the afternoon that day. At about 8pm at night while the electricity was still off, the victim went to sleep but the switch to the lights inside the house was left turned on. There was also light rain that night. So it was fairly dark.
   
5. The electricity did not come on again until about 10pm. This made the victim wake up. As he stood up from where he was sleeping, a gunshot broke though the louvre windows just above where he was sleeping. The broken glasses injured the victim’s feet. Almost immediately a second gunshot followed through the same louvre windows injuring the victim on his mouth and face. The victim then called out to his son to turn off the lights. When the lights were turned off, three other gunshots followed through the same space as the first two gunshots. However, the victim was able to avoid those gunshots.
   
6. The evidence that was adduced by the prosecution shows that on the night in question, while the electricity was off and there was light rain, the accused walked along the main road from where he lives in the village and turned onto an access road that goes inland of Mulifanua. He then stopped and stood on that access road behind some hedges about 25 meters to the eastern side of the house where the victim was. He was armed with a 12 gauge shot gun. Almost immediately after the accused arrived behind the hedges, the electricity came on again. The accused then took aim of the gun at the house where the victim was and discharged it five times.
   
7. After the accused discharged the gun, he hurried away and hid the gun under a tamaligi tree some distance away from the scene of this incident. Later the same night, he went back and retrieved his gun. Later the following morning, the police, after collecting evidence from potential witnesses, went to the house of the accused at Mulifanua and brought the accused and his gun to the police station.
   
8. The evidence adduced by the prosecution also shows that for quite a long time there has been friction and tension between the village of Mulifanua and the brother of the victim who is the matai of their family. As a consequence, the brother of the victim and his family was ostracized from the affairs of the village. The latest development in this unhappy relationship before this incident occurred was a case before the Land and Titles Court between the victim’s brother and the congregation of the EFKS Church at Mulifanua of which the accused is a member. The case was concerned with the pule (authority) over the land on which the church is situated. The decision of the Land and Titles Court was delivered on Friday 31 October 2008 and it was in favour of the victim’s brother and his party. This incident then happened on Monday night 3 November 2008.
   
9. The inference is that this incident came about because the decision of the Land and Titles Court was in favour of the victim’s brother and his party and not the congregation of the EFKS Church of which the accused is a member. The victim’s brother also testified in this case that prior to the hearing before the Land and Titles Court, he heard of the accused on more than one occasion making threatening remarks "o le aso e faasa’o ai upu o le tatou nu’u o le aso foi lea e oti ai ma le tagata". The victim’s brother took the threats to be directed at him.
   

The victim

10. As already mentioned, the victim is a 59 year old male and he lives in New Zealand. After this incident, he returned to New Zealand where he was hopitalised for two weeks and had an operation to remove a pellet from his lower jaw and another pellet from the left side of his mouth. He recovered after one week. This incident has also affected the victim’s sense of hearing and he is now wearing a ‘hear-aid-gadget’ to assist him with his hearing. The memory of this incident has also affected the victim psychologically as he still feels unsafe and fearful of what happened.
    
11. The victim’s family has also been affected psychologically. They are now very concerned about their safety.
    
12. The costs of repairs for the damage to the house of the victim’s brother have been estimated to be around $4,000.
    

The accused

13. The accused is a 62 year old male of the village of Fuailolo’o, Mulifanua. He is a planter and is married with six children. His family depends heavily on his plantation.
    
14. According to the accused’s pre-sentence report he is a first offender. It also appears from the pre-sentence report that the accused still insists that he is innocent of the offences on which he has been found guilty.
    

Mitigating circumstances

15. The only mitigating factor in favour of the accused is that he is a first offender. There is no other mitigating factor in his favour.
    

Aggravating circumstances

16. There are serious aggravating features in this case which are of grave concern to the Court. Not only were the actions of the accused plainly planned and pre-meditated but this is also a case of attempted murder by ambush. The accused used the darkness of the night to hide himself and avoid being seen so that it would be difficult, if not impossible, to find out who discharged the gun at the house the victim was in. This type of criminal behavior is uncommon in Samoa and I do hope it will not become a common occurrence otherwise our society will start to feel insecure and become unsafe from invisible assassins or would-be assassins. If that is to happen, it will be most undesirable for our country.
    
17. It also appears that there is an element of anti-justice in this case. The Land and Titles Court had just delivered a decision on a land dispute between the victim’s brother and his party on one land and the religious congregation of which the accused is a member on the other when this incident happened. Not only is this type of criminal conduct a serious threat to decisions of the Court but it is also contrary to all the Christian teachings of the church whose congregation the accused is a member.
    
18. Furthermore, by discharging such a lethal weapon as a gun five times at a house where people are living shows that the accused was most reckless and did not care less about who was killed or injured or how many people were killed or injured. Obviously, the accused was discharging his gun at anyone who was inside the house. It was, perhaps, fortunate, that only the victim was injured and no one was killed.
    
19. The physical and psychological impact of the accused’s actions on the victim and members of his family is also a factor to be taken into account in passing sentence.
    

Previous comparable cases

20. Previous cases of attempted murder which involved the use of a gun have always been given lengthy sentences of imprisonment. For instance, in Police v Tuitama (1996) the accused was sentenced to 4 years imprisonment; in Police v Vaofanua (2003) the accused was sentenced to 6½ years imprisonment; and in Police v Titi [2007] WSSC 91 the accused was sentenced to 5 years and 4 months imprisonment.
    
21. In those cases, the accused had entered pleas of guilty and accordingly were given the appropriate discounts. This is not a case where the accused had pleaded guilty so that no discount can be given on that basis. If anything, the present accused, as it appears from the pre-sentence report, still insists that he is innocent which shows absence of any remorse.
    
22. It is also to be noted that whilst previous sentences passed in comparable cases may provide guidance as to the sentence to be imposed in the case at hand, in the ultimate analysis the sentence for each case depends on its own circumstances.
    

The decision

23. In passing sentence, I have to say that this is the most serious case of attempted murder that has come before the Courts in the recent past. So serious is this case, I have been considering whether in view of the aggravating circumstances relating to the offending the starting point for sentence should be 10 or 12 years.
    
24. Because of the level of sentences that this Court has imposed in previous cases of attempted murder which involved the use of a gun, I have thought that a starting point of 12 years may be too sudden a change in the level of sentencing for this type of case. This does not mean that in the future the starting point for attempted murder in a similar factual situation may not go up to 12 years.
    
25. In this case, I have decided to take 10½ years as the starting point for sentence. I will then deduct 6 months as the accused is a first offender. That leaves 10 years. The accused is convicted and sentenced to 10 years imprisonment on the charge of attempted murder. On the charge of causing willful damage, the accused is convicted and sentenced to 4 years imprisonment. Both sentences to be concurrent. That means the accused will serve 10 years imprisonment. From that sentence is to be deducted the time that the accused has already spent in custody.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Tamati & Masipa’u Law Firm for accused