Police v O'Brien [2016] WSDC 51 (28 November 2016)

DISTRICT COURT OF SAMOA
Police v O’Brien [2016] WSDC

Case name:	Police v O”Brien
Citation:	[2016] WSDC
Decision Date:	28 November 2016
Parties:	POLICE v UNASA FARANI O’BRIEN, male of Faleula, FUIFUI ANASITASIA O’BRIEN and MISILETI VONDINCKLAGE, both female of Faleula
Hearing date(s):
File number(s):	D1026/16A, D1027/16A, D1028/16A, D1051/16A, D1052/16A, D1053/16A, D1217/16, D1231/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	JUDGE LEIATAUALESÃ D M CLARKE
On appeal from:
Order:	Unasa O’Brien: D1231/16 - convicted and sentenced to 12 months supervision on the following conditions: (i) carry out 90 hours of community work; (ii) attend a 10 week anger management and spiritual counseling program as directed by the Probation service (iii) not to re-offend during the supervision period; D1217/16 - convicted and sentence to 40 hours community work, cumulative to D1231/16; Fuifui O’Brien: convicted on all charges and to come up for sentence within 9 months if called on by the Court; and Misileti Vondincklage: convicted of the charge before the Court and to come up for sentence in 6 months if called on by the Court.
Representation:	I.Atoa for Police Prosecution T.T. Patea for the defendants
Catchwords:	Assault, Threat to kill, Insulting Words, Throwing Stones, Armed with a Dangerous Weapon.
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123, s.129, Police Offence Ordinance 1961 s.4(g), s.26 and s.25
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

UNASA FARANI O’BRIEN, male of Faleula, FUIFUI ANASITASIA O’BRIEN and MISILETI VONDINCKLAGE, both female of Faleula, male of Fasitoo uta
Defendants

Counsel:
I.Atoa for Police Prosecution
T.T. Patea for the defendants

Sentence: 18 November 2016

SENTENCING DECISION OF JUDGE CLARKE

The Charges.

1. Defendants, you appear for sentencing on the following charges
   1. Unasa Farani O’Brien:
      • (i) Armed with a Dangerous Weapon (Information D1217/16); and
      • (ii) Threat to kill – Maka Niupulusulu (section 129 Crimes Act 2013) (Information D1231/16).
   2. Fuifui O’Brien
      • (i) assault Maka Niupulusu (section 123 Crimes Act 2013) (Information D1052/16A);
      • (ii) armed with a dangerous weapon (section 25, Police Offences Ordinance 1961) (D1051/16A); and
      • (iii) insulting words (D1053/16).
   100. Misileti Vondincklage:
        • (i) assault of Maka Niupusulu (D1028/16)

The Offending:

2. I have set out in detail in my written judgment of 4 November 2016 the background to your offending that occurred on the 12^th April 2016. Accordingly, I will only briefly recite that background here.
3. On the 12^th April this year between 10.00am and 12pm, Nasareta Uale, Maka Niupulusu and another woman named Maisau were cooking a meal in Fasi and Vasati’s outdoor kitchen which is next door to your home. The kitchen is adjacent to Fasi and Vasati’s house. As they were cooking, the three of them were telling stories and laughing out loud.
4. Fuifui and Misileti, you were both in your house. You became unhappy about the laughing. Fuifui, you believed Nasareta, Maka and Maisau were talking about the First Defendant. You were worried that the First Defendant would hear the three of them laughing and talking about him. An exchange of words then occurred resulting in you Misileti going to Maka in the area adjacent to the outdoor kitchen. Fuifui, you ran to put shorts on. As I found in my written judgment, you did so in order to participate in the altercation that followed. Misileti, when you reached Maka, you then assaulted Maka and a fight followed where you each pulled each other’s hair.
5. When you came to the fight Fuifui, you came armed with a piece of timber. You used that timber to strike Maka twice, a blow to the head and shoulder. You also uttered the insulting words to which you entered a guilty plea.
6. For you Unasa, you came out of the garage carrying a knife which you had been using to carry out work in your garage. You stopped Fasi by grabbing him by the neck. You then intervened in the altercation between the women by grabbing Maka’s hair and threatening her by saying “ete manao e tuia oe ile naifi”. I found that your grabbing of Fasi by the neck and of Maka by the hair was in self-defence of the Third Defendant.

The Defendants:

7. Unasa, you are 62 years of age from Faleula. You are married to the Second Defendant and are the father of the Third Defendant. You are a father and a grandfather. You are unemployed but are a mechanic by training.
8. You Fuifui are 52 years of age from Faleula and are a mother and grandmother.
9. Misileti, you are 31 years of age and from Faleula. You are a mother.

The Victim:

10. The victim of you offending is Maka Niupusulu. She is 39 years of age and is a relative of yours. She is unemployed and says she looks after the family (‘tausi aiga’).

The Aggravating and Mitigating Features of Offending:

11. The aggravating features of your offending are as follows:
    1. your offending occurred within a domestic relationship;
    2. it involved a group assault or action against a single victim;
    100. it involved the threatened use of the knife against the victim by Unasa;
    4. it involved the use by Fuifui of the timber in assaulting Maka; and
    5. it was carried out in the presence of a child or children.
12. In respect of Fuifui and Misileti, there are no mitigating features in respect of your offending. In respect of you Unasa, I accept that your actions occurred because as you came out of the garage, you saw your heavily pregnant daughter involved in an altercation with the victim and intervened on that basis. Your actions however went beyond what was necessary to defend her in terms of these charges before the Court for which you appear for sentencing.

The Aggravating and Mitigating Features of Offenders:

13. There are no aggravating features personal to you Fuifui and Misileti. The mitigating features are the guilty pleas for the matters that you pleaded guilty. The conviction for contempt of Court in respect of you Fuifui is a different type of offending and I will not consider that as an aggravating feature personal to you Fuifui.
14. For you Unasa, you have a lengthy prior conviction record. Between 1970 and 1979, you were convicted of a number of similar offences ranging from assault, willful damage to drunkenness and throwing stones. Between 1979 and 2014, there was a lengthy period of no offending but from 2014 to 2016, you have been convicted of 5 charges involving causing injury, intentional damage and being armed with a dangerous weapon. These are aggravating features personal to you as an offender.

Discussion:

15. The events of the morning of the 12^th April 2016 is one that each of you should be ashamed of. For each of you, your actions were foolish. Unasa and Fuifui, as the leaders of your family, you are expected to bring wisdom and peace to your homes and family members. For you Fuifui, you listened into matters that were not your business and started the exchange of words. You had the opportunity to defuse the altercation by stopping Misileti from going next door to Maka but did nothing to stop her from going. Instead, you went and put shorts on to join the fight with Maka. As a 52 year old mother and grandmother, your behavior was that which you should be embarrassed of.
16. Misileti, your behavior was also that you should be embarrassed. You were heavily pregnant and due to give birth. Despite your heavily pregnant state, you went to Maka on the adjacent property and then assaulted her. You both rolled around the ground pulling hair like children, only then to be joined by your mother. You placed your unborn child’s life at risk. You are very fortunate that no serious injury was suffered either by you or your unborn child.
17. Unasa, you are 62 years of age and are the leader of your family. Despite you prior offending, you are expected to be able to change and bring peace and harmony to your family. As a man who has served approximately 6 different custodial sentences over the years, I would expect that you do not wish to see your wife or other family members sent to prison. You must give good counsel to your family because if you do not, they will follow your footsteps to the gates of Tafaigata Prison.
18. The Prosecution has sought an imprisonment term of 18 months for you Unasa. Having had regard to the circumstances your offending and the desirability of keeping offenders in the community so far as is practicable and consistent with community safety, a non-custodial sentence will be imposed that has a deterrent component coupled with rehabilitation to address the causes of your offending. This in my view wil address the purposes and principles of sentencing and in particular, your rehabilitation to minimize the risk of further re-offending. You told me that you have not had the benefit of a program and would like to attend a program. You will now be given that opportunity and I sincerely hope that you make the most of the opportunity.

Result:

19. Accordingly:

4. Unasa O’Brien:

Threat to kill or do grievous bodily harm Information D1231/16 - you are convicted and sentenced to 12 months supervision on the following conditions: (i) you are to carry out 90 hours of community work; (ii) attend a 10 week anger management and spiritual counseling program as directed by the Probation service; and (iii) not to re-offend during the supervision period;

Information D1217/16 – you are convicted and sentence to 40 hours community work, cumulative to D1231/16;

5. Fuifui O’Brien: you are convicted on all charges and to come up for sentence within 9 months if called on by the Court; and
6. Misileti Vondincklage: you are convicted of the charge before the Court and to come up for sentence in 6 months if called on by the Court.
   

JUDGE LEIATAUALESÃ D M CLARKE