SUPREME COURT OF SAMOA
Police v Gabriel [2019] WSSC 40

Case name: 	Police v Gabriel	
		
Citation: 	[2019] WSSC 40	
		
Decision date: 	5 June 2019	
		
Parties: 	POLICE v AUKUSO SALE FAITAFA GABRIEL male of Papaseea and Lepea.	
		
Ruling date(s): 	5 June 2019	
		
File number(s): 		
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE	
		
On appeal from:		
		
Order:	-	I apply the totality in sentencing approach and the grievous bodily harm charge as the lead charge. I adopt a 6 year start point for sentence. I deduct 9 months for your apology, reconciliation and deep and genuine remorse for your actions. I deduct 9 months for your prior good character and 6 months for your personal circumstances. From the balance of 4 years, I deduct 10 months for your guilty plea entered on the hearing date leaving an end sentence of 3 years and 2 months imprisonment.
-	For the charge of being armed with a dangerous weapon, 4 months imprisonment to be served concurrently and discharge of firearm, convict and discharge. Time remanded in custody to be deducted from sentence.	
Representation: 	Q Sauaga for Prosecution
D Roma for the Accused

Catchwords: 	aggravating and mitigating features – armed with a dangerous weapon – discharging a firearm – grievous bodily harm with intent – maximum penalty – totality in sentencing approach	
		
Words and phrases:	being within a domestic relationship; offending occurred in the presence of a child; use of a shot gun 
	
Legislation cited:	Family Safety Act 2013. 	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AUKUSO SALE FAITAFA GABRIEL male of Papaseea and Lepea.
Accused

Counsel:	Q Sauaga for Prosecution
D Roma for the Accused

Ruling:  	5 June 2019

SENTENCE
Charges:
[1]	You appear for sentence on once charge of causing grievous bodily harm with intent carrying a maximum imprisonment term of 10 years imprisonment. You also appear for sentence of being armed with a dangerous weapon, namely a 12 gauge shot gun and also of discharging a firearm.
The Offending:
 [2]	A disputed Summary of Facts hearing was held on the 3rd of May 2019. Following the hearing of evidence, counsel agreed on many of the disputed facts leaving only one matter for my determination which I ruled on and delivered on the 3rd of May 2019. 
[3]	The facts are that on Father’s Day on the 12th August 2018 at about 3.00pm, the victim who is your nephew and his nine (9) year old son came to your house to bring you some food for lunch. You asked the victim to stay and have a drink and you both then drank together. After a period of time, you began to argue about family matters resulting in a fist fight which made its way outside your house.
[4]	After the fist fight, the victim left and you walked into your home and armed yourself with a 12 gauge shot gun. You called out to the victim to come back and fight but the victim kept walking with his son. Angry, you discharged the gun. In your own evidence, you said that you fired the shot gun 4 times.
[5]	You continuously called to the victim that you would go and shoot him and sleep with his wife as you followed him. This angered the victim, he turned around and armed himself with a rock. You shot the victim. He suffered:
(i)	laceration to the right side of his forehead; and
(ii)	bullet injuries to his left arm and left side of his body.
[6]	The victim collapsed and lost consciousness. You beat the victim further striking him twice with the handle of the gun. His nine (9) year old son came and tried to stop you and asked you to please stop beating his father.
The Accused:
[7]	According to your Pre-Sentence Report, you are a 59 year old man. You are the eldest of 8 children. After completing schooling to year 8, you went to work your family’s cattle farm. At age 23, you moved to New Zealand, worked carpentry work and eventually obtained formal qualifications from Unitech, Auckland. You returned to Samoa in 2016.
[8]	You are married with 4 children. Three are grown up and one child is attending school at Avondale College, Auckland.
The Victim:
[9]	The victim is your nephew. He is 49 years of age and is a construction worker. You and your nephew have reconciled, you have apologized and he has also apologized to you for his role in the dispute.
The Aggravating and Mitigating Factors:
[10]	The aggravating factors of your offending are that:
(i)	The victim is your nephew, the offending being within a domestic relationship as defined by the Family Safety Act 2013 and an aggravating factor (section 17(1));
(ii)	Your offending occurred in the presence of a child (section 17(2)(b) Family Safety Act 2013);
(iii)	Your use of a shot gun to shoot the victim;
(iv)	That your assault was a continuing assault in that after you shot the victim, you beat him with the handle of your gun; and
(v)	The injuries suffered by the victim.
[11]	In terms of mitigating features to your offending, I accept that in part, the altercation between you and the victim was contributed to by the victim.
[12]	There are no aggravating features personal to you as an offender. For the purposes of sentencing, you are a first offender at the age of 59.
[13]	In terms of mitigating features personal to you, I accept:
(i)	that you are genuinely and deeply remorseful for your actions and you have apologized;
(ii)	your prior good character;
(iii)	your personal circumstances including your age, your family in New Zealand and desire to return to New Zealand to be with your wife and children; and
(iv)	your guilty plea.
Discussion:
[14]	Aukuso, you have until now lived a law abiding life. You are 59 years of age and have no prior convictions. On Father’s day last year however, you drank too much alcohol, became drunk and fought with your nephew. In the course of that altercation, you lost your self-control. You got your shot gun, you fired a number of gunshots off and told your nephew that you would shoot him and sleep with his wife. You then shot him from about 8 metres away in the presence of his nine (9) year old son and after you shot him, you then continued on by beating him with the handle of the gun until his son intervened.
[15] 	The violence that you carried out was very serious. I also however accept that it was entirely out of character and that you are deeply remorseful.
[16]	Your counsel has asked for a non-custodial sentence. Given the seriousness of your offending, your use of a 12 gauge shot gun to shoot your nephew and the continuing nature of your attack on him after you shot him in the presence of a child, a non-custodial sentence is out of the question. 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 on 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. 
[17]	I have considered the authorities referred to me by both your counsel and that of the prosecution. Prosecution has sought a 6 year start point and I agree that given the aggravating and mitigating features of your offending, that start point is appropriate. While the victim also had a role in the altercation, any deduction from the start point of sentence is counter-balanced by the domestic relationship with the victim, the presence of a child and the ongoing nature of your assault on the victim after you shot him.
[18]	I apply the totality in sentencing approach and the grievous bodily harm charge as the lead charge. I adopt a 6 year start point for sentence. I deduct 9 months for your apology, reconciliation and deep and genuine remorse for your actions. I deduct 9 months for your prior good character and 6 months for your personal circumstances. From the balance of 4 years, I deduct 10 months for your guilty plea entered on the hearing date leaving an end sentence of 3 years and 2 months imprisonment.
[19]	For the charge of being armed with a dangerous weapon, 4 months imprisonment to be served concurrently and discharge of firearm, convict and discharge. Time remanded in custody to be deducted from sentence.
JUSTICE CLARKE