69 Year Old Sentenced to 12.5 Years for Manslaughter

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E lua ifoga na faatino e aiga ma le afioaga o Falelatai, e faatoese ai i aiga o tamā e toalua na maliuiu. Vaveao o le Aso 9 Ianuari 2021, Afega.

The 1st January 2021 Afega double murder case has finally closed with a prison sentence of 12.5 years for a 69 year old Vaotuua Faalava’au Tai’i Auleoleo Neemia Pologa, who pleaded guilty to two counts of manslaughter.

Elisara Lole Fata, an untitled father of four in his late 30s, and Fata Utufua Fata, a father of six in his early 40s, both died of gunshot wounds before reaching Motootua Hospital on New Years Day 2021.

Below are extracts from the Sentencing Report of Justice Tologata Tafaoimalo Leilani Tuala-Warren, delivered in the Supreme Court of Samoa on Wednesday 16 February 2023.

“Before sentencing the accused, I acknowledge that two men have lost their lives. They were sons, brothers, husbands and fathers. I acknowledge members of the families of the deceased who are present in Court today. The circumstances are tragic for the families of the deceased and also for the family of the accused.”

The offending

3. According to the summary of facts accepted by the accused, on 1 January 2021, the second deceased borrowed the car belonging to the first deceased’s father to go to the shop. The second deceased plus three others went in the car to the shop. The second deceased sat in the front passenger seat. The car was driven by Loi. When the car passed the house of the accused, the accused was also in his car driving out of his house. The second deceased swore at the accused “aikae”. The accused drove after the car with the second deceased inside. The second deceased told the driver to stop the car and when it did the accused asked “pe iai sau agasala ua fai?”. The second deceased got out of the car, walked towards the accused and asked “po le a le mea e sooga faasaoasaoa ai lana taavale”. The accused responded “o le a le mea ua kou fafaga mea leaga ai au ae lea ga laku lemu lou kaavale’. The second deceased then punched the accused. The punch landed on the accused’s face and he fainted. After regaining consciousness, the accused grabbed his gun and shot upwards because he saw many people around him and feared for his safety. At the sound of the gunshot, Loi drove away leaving the second deceased at the scene. The accused followed Loi not knowing that the second deceased was not in the car. As soon as Loi arrived to the home of the first deceased, he ran behind the house to hide. The accused stopped in front of the house of the first deceased because he wanted to speak to Fata Lole, who is the father of the second deceased. The first deceased approached the accused and said hello. The accused got out of his car and saw Fata Lole walking towards him. At the same time, the accused saw someone running towards him and without realising it, the gun was discharged and he had shot the first deceased. The first deceased staggered away and collapsed under an ulu tree. The accused got back into his car and reversed. The second deceased who was standing across the road called out to the males of the village who were standing around “aua le faia le toeaina”. A village matai told the second deceased to leave. The accused was following the village matai and saw the second deceased and others coming towards him. He pointed the gun at the second deceased and shot him in the chest. The second deceased fell to the ground. The village matai pushed the accused back but the accused again pointed the gun at the second deceased lying on the ground and shot him again. This shot hit the back of his head.

4. On 1 January 2021, the accused voluntarily handed the gun to Police. The gun was a 22 pistol which is an unlawful weapon.

5. An autopsy revealed that the first deceased died from cardiac rupture due to a gunshot wound to the left chest. The second deceased died from cardiac and pulmonary ruptures due to gunshot wound to the left chest.

The accused

6. The accused is 69 years old. He was raised in Siufaga Falelatai and attended school to Year 9. In 1976 he migrated to New Zealand and then to Australia in 1980. He moved back to Samoa in 2018 to care for his wife’s parents in Afega. He and his wife are regular travellers to Australia to visit their children. He has 5 children and 17 grandchildren. His children provide financial assistance.

7. His wife describes him as humble and loving. She is shocked as she says he is not a violent person. She says he is kind and strives to upkeep their family.

8. The accused says about the offending that the second deceased swore at him, formed a roadblock with his friends to stop his car, approached him while holding a beer bottle and punched him suddenly. He fired the gun out of the car to scare them off. He says he was filled with anger and left his car at home and walked over to the home of the second deceased. He says the first deceased ran towards him as he was talking to the father of the second deceased. He shot the first deceased and on his way home he saw the second deceased on the road and shot him too. He told probation that he was filled with anger and it got the best of him on the night of the offending.

9. The family of the accused conducted an ifoga to the families of both deceased. Both ifoga were accepted.

10. The accused was banished from Afega. He conducted an ifoga to his village Siufaga and paid a village fine.

11. In support of the accused are 10 references. They are from family members, village matai, and clergy. All say that this offending is extremely out of character and the accused they know is loving, respectful, committed, serves his family and village, and is quiet. They are all shocked that he has committed this offence.

12. The accused has a previous conviction for insulting words in 2016.

The Deceased

13. The first deceased is Elisara Fata. He was married with 4 children. The second deceased is Utufua Voi, 42 years old. He was married with 6 children.

14. Elisara’s father and wife said in their victim impact reports that he was relied upon to look after their family and his sudden loss has impacted their ability to grow as a family. His wife says that she now experiences hardship in looking after their 4 children. She has had to adopt the baby out and find a job to support her children. Her husband was usually the breadwinner and she stayed home to look after the children. She says she and her children miss their father, and she cannot get over the hurt and pain of losing him so suddenly and tragically.

15. She confirms the ifoga from the family of the accused.

16. The mother of the second deceased Utufua says she heard of her son’s death from her children in America. She has tried to calm her heart. It was the new year and she says she never imagined anything like this would happen to her family. She says Utufua was a helpful son within their family, church and village, and more importantly was the main financial contributor for their family, village and church obligations. She misses him every day. She says that his children were precious to him.

17. She confirms the family of the accused conducted an ifoga to their family which was accepted. She says despite the ifoga the loss of her son is hard to accept.

Aggravating features of the offending

18. The aggravating features of the accused’s offending are:

(i) the offending involved assassination type actual violence involving the use of a weapon;

(ii) the weapon was a concealed loaded unlawful weapon, namely a .22 revolver;

(iii) the accused pursued the car he thought the second deceased was in with a weapon in his car which indicates premeditation in the infliction of violence;

(iv) he shot and killed the first deceased who was an innocent by stander not involved in the initial altercation;

(v) The vulnerability of the victims. They were unarmed and defenceless to the accused’s attack. The second victim was particularly vulnerable in that the second shot was to the back of the head while he was lying on the ground unarmed and injured from the first shot;

(vi) the particular cruelty in the killing of the second deceased by shooting him in the head whilst injured and on the ground helpless;

(vii) the number of victims in the offending that were killed;

(viii) the number of shots fired and the location of those shots. The second deceased was shot twice, once in the chest and once in the head. The first deceased was shot in the chest. There is a serious risk of fatality given the location of these gunshot wounds, and indicates intentional harm;

(ix) The impact of the offending as seen in the victim impact reports. The hardship caused to the families of the deceased is significant; and

(x) the killing of the two victims were committed in public and in the presence of others, undoubtedly deeply traumatic for those witnesses.

Mitigating factors

19. The mitigating factors are;

• The accused been of good character- His previous conviction for insulting words in 2016 is minor;

• His personal circumstances and the references in support-he is a matai, a father and grandfather who has served his family all his life;

• A slight degree of provocation in terms of the second deceased only, as he punched the accused;

• Ifoga;

• Village penalty;

• His remorse;

• He voluntarily turned himself into Police;

• The amount of time on bail; and

• Guilty plea at the earliest opportunity.

Discussion

20. In sentencing for manslaughter, the Court has recognised the extensive range of sentences which have been imposed given the vast circumstances of this offence.

21. In Police v Tasi [2014] WSSC (13 August 2014), Nelson J said;

The Courts have often said of manslaughter that the circumstances differ greatly from case to case. The Court of Appeal in Nepa [2010] WSCA has said “there is no offence in which the permissible degrees of punishment cover so wide a range as manslaughter”.

22. In Police v Konelio[2014] WSSC 77(5 December 2014) Nelson J said;

Although the sentences imposed for the crime of manslaughter have varied from lengthy terms of imprisonment to non-custodial sentences, the Court has never lost sight of the gravity of the crime of manslaughter, and that is because the loss of human life is a grave and serious concern to members of society.

23. The Court of Appeal in Nepa v Attorney General[2010] WSCA 1(7 May 2010) stated

In ordinary cases involving a group and an unprovoked attack resulting in death, the commencing point ought to be a sentence of 10-12 years for the crime of manslaughter.

24. The CA also went onto say that guidelines of this kind are never intended as a straitjacket to preclude the application of flexible justice to the individual case.

25. In R v Raipira [2003] 3 NZLR 794, the New Zealand Court of Appeal in terms of sentencing for manslaughter stated:

“[128] The maximum sentence for manslaughter is imprisonment for life. This Court has emphasised that the circumstances of manslaughter vary so widely that attempts to provide guidelines according to categories risks inflexibility and would divert the sentencing inquiry from the degree of culpability in the particular case (Re v Leuta [2002] 1 NZLR 215 at p 229). Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender which may diminish responsibility may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter is a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context.”

26. In this case, I bear in mind what Clarke J said in Police v Tupuola & Alefosio;

Sentencing however must be related to the circumstances of the particular offence and an offender and in a manslaughter case, the loss of life is unintentional.

27. Prosecution has submitted a sentencing starting point of 32 years imprisonment for the accused. They rely on the attempted murder sentence in Police v Tulaga. However they do not make helpful submissions as to why the Court should rely on this case.

28. Defence submits that 16 years imprisonment is a more appropriate starting point.

29. In this case, the accused says that there was provocation from the second deceased. According to the summary of facts, the second deceased swore at the accused and punched him. Even if I accept there was some degree of provocation from the second deceased in this case, the violent response by the defendant is overwhelmingly disproportionate to what the second deceased did. I bear in mind what the Court of Appeal of Samoa said in Faafua (Vili) v Police [1980-1993] WSLR 550 cited by Wilson J in Police v Gali [1999] WSSC 19 (29 September 1999);

This was a serious wrong which you each did. Although you were provoked, you should not have responded in the way you did and with such severity. Your actions, even though provoked, are blame-worthy and culpable.

30. I will give a small discount for the provocation by the second deceased, as provocation from the second deceased was slight and the response by the accused in shooting him twice was overwhelmingly disproportionate.

31. I am mindful of section 6(e) of the Sentencing Act 2016 which requires the Court to take into account the desirability of consistency with appropriate sentencing levels imposed in similar offending. However a departure from Nepa is warranted in this case. The circumstances of this case are not provided for in Nepa, or most authorities provided by Counsel, which deal with a single victim.

32. This type of gun violence is unprecedented in Samoa. Firstly, the gun used, a pistol, is unlawful, was loaded and in the accused’s car. Secondly he pursued, shot and killed two people in public within a relatively short timeframe, one who was not involved at all in the first altercation and the second, shot twice, the second time in the back of the head, while he was on the ground injured from a first gunshot to the chest. The location of these gunshot wounds on the bodies of the deceased indicates intentional harm, although I bear in mind that the loss of life is unintentional as we are dealing with manslaughter. But these actions are extremely violent and particularly cruel. I describe this offending as an assassination type shooting not seen before in Samoa. The utter heartlessness of the offending is shocking.

33. I consider the culpability of the accused to be significantly high. The slight provocation from the second deceased affects his culpability marginally.

34. I have just been given 6 affidavits from family members of the accused, namely, his wife, his brother. His daughter and son, 2 grandchildren and his son in law. All say the process has been extremely difficult for them as the family of the accused. I have no doubt that that is the case. They all express shock at this offending and describe a man who is generous, gentle and supportive. I acknowledge that this is tragic for all involved. I also recognize, as does Counsel, that as a consequence of this offending the family of the accused also suffer. This does not take away from the fact that 2 people lost their lives, and in today’s sentence deterrence is a paramount consideration as is the protection of the community.

35. With the increase of firearms in Samoa, the accused and others must be deterred from committing the same or similar offence. This is a purpose of sentencing provided in section 5 Sentencing Act 2016, as is the protection of the community from the accused.

36. Section 56 of the Sentencing Act 2016 provides that where I am considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence, that in effect means I consider the totality of the offending.

37. For this offending which is a double manslaughter using a firearm, I consider a band of between 25-30 years imprisonment as appropriate.

Sentence

38. Having taken into account the aggravating features of the offending, I take 25 years imprisonment as a starting point for sentence. I deduct 12 months for his previous good character. I deduct 12 months for his personal circumstances. I deduct 12 months for the ifoga, 12 months for his village penalty, and 12 months for his remorse. For voluntarily turning himself in, I deduct 6 months. I deduct 6 months for slight degree of provocation from second deceased. I deduct 6 months for the time he spent on bail. Finally for his guilty plea at the earliest opportunity, I deduct 6 years.

39. The accused is convicted of two counts of manslaughter and sentenced to 12 ½ years imprisonment.

40. Any time in custody to be deducted.

Coronial Rulings

41. I issue a coronial finding to certify that Elisara Fata DOB 9/12/1985 of Afega, died on 1 January 2021 at Afega as a result of cardiac rupture caused by gunshot wound on left chest. The perpetrator has been dealt with according to the law.

42. I issue a coronial finding to certify that Utufua Voi, DOB 31/08/1978 of Afega, died on 1 January 2021 at Afega as a result of cardiac and pulmonary ruptures caused by gunshot wound to the left chest. The perpetrator has been dealt with according to the law.

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JUSTICE TUALA-WARREN