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Police v Alaiva'a [2020] WSSC 56 (21 February 2020)

SUPREME COURT OF SAMOA
Police v Alaiva’a [2020] WSSC 56

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TEPA ALAIVA’A also known as TJ TEPA ALAIVA’A male of Lalovaea and Moto’otua.
Defendant

Counsel:
T Sasagi for prosecution
Defendant unrepresented

Sentence: 21 February 2020

S E N T E N C E

1. The defendant in this matter faces a number of charges, the main one being that at Lalovaea on 04 September 2019 he attempted to kill the complainant Vili Lomiga a male of Moata’a and Lalovaea and thereby committed the crime of attempted murder. He is also charged in respect of the same incident with being armed with a dangerous weapon namely a sapelu, threat to kill and insulting words.
2. The police summary of facts states that he is a 20-year-old male of Lalovaea and Moto’otua and is neighbours with the complainant a 62-year-old male of Lalovaea and Moata’a.
3. On the 04^th of September at 2:00 pm in the afternoon or thereabouts the victims daughter became involved in a dispute with the defendants sister regarding some comments on Facebook. Such matters are becoming quite common these days. At that time the victim was in his house. He heard the commotion and went to investigate what was happening, intervened and grabbed his daughter and escorted her back to his house. The parties appeared to have calmed down and the incident was over.
4. But then the defendant who had been drinking a bottle of Boom Vodka appeared on the scene heavily intoxicated. When he arrived at his house he was told about the incident by the girls. Foolishly Tepa armed himself with a sapelu and went to the victims house. He came across the victim talking to a neighbour.
5. The Police summary says that the victim saw the defendant run towards him with a machete and call out: “Vili ou ke fa’asiokia oe, ou ke kipikipi gigiiga oe, kefe, ufa” (se’i tulou). The person talking to the victim ran away afraid and the victim also retreated because he too was afraid of the armed defendant. The defendant followed and swung a strike towards the neck of the victim. The victim saw the strike coming and ducked so the strike missed. The defendant again aimed another strike at the upper body of the victim but the victim also saw this strike coming and according to the summary moved away which caused this strike to also miss. People who were then rushing to the scene intervened and stopped the defendant. The Police were called and the defendant appears in court as a result.
6. When the summary of facts was read to the defendant he disputed that he used a machete. Accordingly the court heard testimony from the victim and witnesses to the incident including the defendant. I found after hearing the evidence that what was in the Police summary of facts about the defendants use of a machete to be confirmed.
7. This is a serious case of attempted murder. It was only the quick evasive actions of the victim and probably the fact that the defendant was drunk that saved the victim from serious injury and possible death.
8. Tepa was the younger of the two men and was armed with a lethal weapon. It is clear from his actions and his words that his intention was to kill the victim. In his own words he said “Vili ou ke fasiokia oe ou ke kipikipi gigiiga oe”. Clearly he had lost all self-control and was in a rage.
9. Tepa the maximum penalty by law for attempted for attempted murder is life in prison. In this case you armed yourself with a machete, a lethal weapon, you went with that weapon looking for the victim. When you found him he was unarmed and defenceless. You attacked him. Physically he is not your match because he is a 60 year old man. The strikes you delivered were aimed at vulnerable areas of the body namely the neck and upper torso and you struck out not once but twice. When you missed the first strike you delivered a second strike.
10. This incident has also had an effect on the victim. In the Victim Impact Report filed by Police he says as follows:

“O le a’afiaga o le mafaufau ona o le popole o le mafaufau i nei ituaiga solitulafono ua aafia ai ia. O leisi itu e fia fa’ailoa atu, ua le toe maua se saogalemu o le matou nonofo ai talu mai lava le aso sa tula’i mai ai le fa’alavelave e o’o mai le asō. Ua fa’alogoina pea le masani a le tagata le tau’aiga o apa o le matou fale. Ua oo mai ai le fefe ma le popole ona o a’u foi ua matua ma e leaga foi ou vae pe iai seisi tulaga e ono o’o iai lo’u aiga ae leai seisi e fa’amoemoe iai si a’u fanau. O fa’amatalaga sa lafo atu e lepeti ai fo’i le va nonofo ma isi tuaoi aemaise ai le leiloa o le va fa’amatua”.

11. These are the words used by the victim in his Victim Impact Report. Before the court proceeds to a sentence on you Tepa I give you an opportunity to say something on your behalf. E iai se talosaga po o se fa’amatalaga e fia tu’u mai ae lei fa’aauau le fa’aiuga Tepa? (Defendant said yes). Ia saunoa mai. (Defendant: Ou te talosaga atu ma le agaga lotomaualalo i lau afioga pe mafai ona maua se fa’aiuga i le a’oga fa’amolemole lau afioga). O le a le uiga o lau tala fa’aiuga a’oga? (Defendant: i le iuga fa’amolemole). Se fa’aiuga e aoga moo e, o le a le uiga o lau fa’amatalaga? (Defendant: Ioe lau afioga). E iai seisi vaega e te fia taua Tepa? (Defendant: Ou te talosaga atu ua ou fia agai i le matou aiga fa’amolemole). Pau lea? (Defendant: O lea lava lau afioga).
12. In mitigation the defendant has sought leniency from the court. But Tepa this offending is far too serious and involves an attempt to kill a person. As indicated to you the maximum penalty by law for this kind of behaviour is life in prison. The sentence that the court imposes on you must be designed to reflect the seriousness of your crime. And to show to everyone that the law does not tolerate this kind of behaviour. And if you attack someone with a sapelu you will likely go to prison. The prosecution have asked for a prison sentence, a prison sentence is totally appropriate for your offending.
13. The maximum penalty of life is obviously not applicable to this case, sentencing will start at a lower level and I adopt eight (8) years as the start point for sentence. That start point takes into consideration all the relevant factors of this matter. But from that start point Tepa you are entitled to certain deductions for matters in your favour.
14. In terms of your background the record will note that the defendant has admitted to a previous conviction in 2018 for insulting words for which he was fined. I also note as per the Probation Office pre-sentence report he has no employment but assists his aiga in the normal chores of a young Samoan male. There are also good character references speaking well of him from his faifeau as well as from the village representative. To reflect those matters I will give you a deduction of three (3) months from the start sentence. It would have been six (6) months but because of your previous conviction I cannot give you the extra three (3) months. Considering the nature of your previous conviction there is no need for an uplift for that conviction.
15. The second deduction in mitigation for you Tepa is the fact that there has been a reconciliation. The Victim Impact Report confirms your father has apologized to the victim on your behalf and the victim has accepted this. To reflect that matter I deduct six (6) months from the balance of your sentence, leaving seven and a quarter (7¼) years.
16. I have given consideration to a further deduction because you are young, you are only 20 years of age. What you did was the irresponsible and reckless behaviour of youth. You are still young and hopefully you will learn from this. To reflect your age, I deduct one (1) year from the balance of sentence, leaves six and a quarter (6¼) years.
17. The third deduction is in respect of your guilty plea to the charges against you. Although that must be balanced against the fact that we did need to undertake a small hearing because of your dispute of the summary of facts. So you do not get the full deduction of one quarter (¼) of your sentence but I will give you a deduction of one (1) year and one quarter (1¼), leaves a balance of five (5) years in prison.
18. E leai nisi toesega e mafai ona fai tusa ai ma lau mataupu Tepa. O le fa’asalaga a le Fa’amasinoga i le moliaga autu lea e fasasaga i lau susuga o le taumafai e fa’asioti le sa a’afia i le mataupu lenei e auala mai i lou fa’aaogaina o se sapelu, ua fa’amaonia lau solitulafono lena lima (5) tausaga e te nofo sala ai i le falepuipui. A’o le taimi lea na e taofia ai e fa’atalitali le fa’aiuga o le fa’amasinoga e toesea mai le lima (5) tausaga lena.
19. O isi moliaga ia e fa’asaga i lau susuga o le lafoina o ni upu tau fa’amata’u ma le umia o se ‘aupega matautia o le sapelu, ua fa’amaonia lau solitulafono i moliaga na e lua, e ta’i ono (6) masina e fa’asala ai oe i le falepuipui ae tuli fa’atasi le ta’i ono (6) masina lena ma le lima (5) tausaga lea ua tu’u atu e le Fa’amasinoga.
20. O le moliaga mulimuli o lou fa’aaogaina o ni upu le talafeagai, e fa’amaonia foi lau solitulafono tolu (3) masina e te nofosala ai i le falepuipui ae tuli fa’atasi ma le lima (5) tausaga lea ua fa’ata’atia atu e le Fa’amasinoga. O lona uiga o le aofa’iga o lou fa’asalaga atoa mo le mataupu lenei e te nofosala i le falepuipui mo le lima (5) tausaga ae toesea ai le taimi lea sa e nofo taofia ai e fa’atalitali ai le fa’aiuga a le Fa’amasinoga.
21. O le upu mulimuli a le Fa’amasinoga i le mataupu lenei, o lea e atagia mai pepa ia e i luma o le Fa’amasinoga o loo fa’aauau lava le tulaga lea i le va o le tou aiga ma le aiga o le sa a’afia, o lea e fa’apea mai ai o lea e fai ma tauai le fale a le aiga lea. O le lapata’iga a le Fa’amasinoga a fa’apea e iai ni tagata e a’afia i le mea lena e maua mai e leoleo e ono mulimuli atu ia oe i le falepuipui. E sili na tuu aua le toe faia nei amio le taupulea ma amio le talafeagai.

JUSTICE NELSON