Police v O'brien [2015] WSSC 257 (27 May 2015)

SUPREME COURT OF SAMOA
Police v O’brien and ors [2015] WSSC 257

Case name:	Police v Obrien and ors
Citation:	[2015] WSSC 257
Decision date:	27 May 2015
Parties:	Police (prosecution) v Francis Obrien, William O’brien and Farani O’brien, males of Faleula
Hearing date(s):	29 April 2015
File number(s):	S3391/14 and S3392/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	Farani O’brien - you are now convicted and sentenced to a term of 8 months imprisonment. That will commence today and will run concurrently with your current sentence William O’brien - you are convicted now and sentenced to 6 months imprisonment. In your particular case, I then ask myself this question: had this matter been before me when I sentenced you to the lengthy term of imprisonment that you are serving, would it have added to the endpoint of your sentence or would it have run alongside? Despite it being an entirely different incident, I can say with certainty that it would not have added to the length of your already long sentence. You are still young and there needs to be some light at the end of the tunnel in terms of your rehabilitation while serving your prison sentence. For that reason, the sentence of 6 months will run concurrently – in other words, at the same time as your current sentence Francis O’brien - on this charge, you are convicted now and sentenced to serve a term of 3 months imprisonment.
Representation:	R Titi for prosecution Defendants in person
Catchwords:	Causing actual bodily harm with intent to cause actual bodily harm
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

Francis O’brien, William O’brien and Farani O’brien, males of Faleula
Defendants

Counsel: R Titi for prosecution

Defendants in person

Hearing: 29 April 2015

Sentence: 27 May 2015

Oral Sentence of Justice E M Aitken

1. Farani O’Brien, Francis O’Brien and William O’Brien, you have all pleaded guilty to a charge of causing actually bodily harm with intent to cause actual bodily harm. Farani O’Brien, you have pleaded guilty to causing actual bodily harm to Fiti Saolele. Francis and William, who are your sons, have pleaded guilty to the same charge in respect of Fasi Maiava. All three of you initially pleaded not guilty and the matter came before me on 29 April. You are all unrepresented; that is unfortunate in these particular circumstances on reflection. I understand that the Registrar, on the day, explained the charge to you but in particular I had the charges put to each of you and each of you entered your pleas of guilty.
2. The Summary of Facts upon which I proceed to determine your involvement in the offending reads as follows.
3. You three are related to the two victims; Fasi Maiava being Mr Farani O’Brien’s brother. At the time you were living in neighbouring or adjoining properties. Fasi came home that evening; he was drunk and scolded his wife and making a lot of noise. Farani O’Brien, your wife, the defendants’ Francis and William mother, called out to Fasi and he responded, and there was a verbal argument and insults exchanged. It seems that a fight then broke out between the three of you and Fasi and his wife, Fiti Saolele.
4. In the course of that fight, all three of you assaulted Fasi to the point where he sustained injuries to his head, face and body. He suffered a fractured jaw and had to obtain medical assistance for that.
5. Fiti was assaulted in the course of this big fight by both Farani O’Brien and his wife. A metal bar was involved. Farani O’Brien’s wife has been dealt with in the District Court and sentenced to a non-custodial sentence for involvement in the assault. Farani O’Brien appears now for sentence and I proceed on the basis that he did use the metal bar against Fiti, and as a consequence of that assault she suffered a large cut to her right side, which clearly took some time to heal.
6. Farani O’Brien, before me, says today at sentence that in fact it was Fasi who used the metal bar on his wife not him using it on Fasi’s wife. It may well be that at some point Fasi used the metal bar but I must sentence you, Farani O’Brien, on the basis of an assault on Fiti, which I find to have been caused by the metal bar.
7. William O’Brien, you make no comment in respect of the facts or in respect of sentence.
8. Francis O’Brien, you in fact deny causing any harm to Fasi at the time when your father and brother were involved. You say there was an earlier incident where Fasi was trying to strangle you and that you pushed him away and that was the extent of any assault against him.
9. Having taken pleas of guilty from the three of you and therefore excused the witnesses back on 29 April, and having heard from Prosecuting Counsel, Ms Tavita, the evidence before the Court would have been given by three members of Mr Maiava’s family (including their son who said that his father was assaulted to the point where he had to be dragged away from you) I proceed to sentence you today on the basis of the Summary of Facts.
10. I am simply not in a position to determine whether the plea of guilty has resulted in the miscarriage of justice and if at the conclusion of these proceedings, William O’Brien, you think that it is a miscarriage of justice then you would be urged to take some steps to engage a lawyer and see if the matter can be appealed.
11. While I proceed today with some disquiet, I would simply observe that it is not at all unusual for defendants to appear at sentence to deny a matter to which they have pleaded guilty earlier

• Farani O’Brien
  • 12. I will deal first of all with Farani O’Brien. You are appearing for sentence in respect of this assault on Fiti. For your part on the assault on Fasi Maiava, you have already been sentenced to 6 months imprisonment. It is always difficult for another Judge to then impose sentence in respect of a charge that arose out of the same incident but I must do so today.
  • 13. On the face of it, the offending against Fiti was relatively serious given that an iron bar was involved and an injury sustained by her, and I ask myself whether if this matter had been before Justice Nelson it would have made a difference to the sentence he passed – in other words, would it have increased the sentence? I am satisfied that it would have made a difference to the sentence; at the very least it would have increased the starting point from one of 12 months imprisonment to at least 15 and possibly up to 18 months, and it follows that the endpoint sentence of 6 months would also have likely increased, possibly around to an endpoint sentence of around 9 months.
  • 14. However, I stand back and look carefully at your personal circumstances. You are 61 years old and currently serving two terms of imprisonment. At this stage you are not eligible to be released until 27 January next year; that is some 8 months away. This incident occurred before you were sentenced to your first term of imprisonment in October of last year. At your age and stage, you are serving a relatively long term of imprisonment and you say to me from the dock, you ask, in effect, for the sentence today not to affect your release date.
  • 15. In all of the circumstances, I have reached the view that in the interest of justice I can impose a sentence that does not affect your release, and you are now convicted and sentenced to a term of 8 months imprisonment. That will commence today and will run concurrently with your current sentence – that will send a clear message that this was serious and unacceptable behaviour but at the same time enables you to work towards that release date in January of next year, in the hope that on release you will not behave in any way that puts you at risk of returning to prison.
• Francis and William O’Brien
  • 16. Francis and William O’Brien, I proceed on the basis that, together with your father, you caused injury or bodily harm to Fasi Maiava. I agree with the Prosecution, that in fairness to you all, the same starting point as identified in your father’s case should be the starting point here, and I start with a sentence of 12 months imprisonment.
  • 17. You both have previous convictions but not – in your case, Francis, for violence; and in your case, William, the previous conviction involving violence is very different from this. It is relevant to observe that this whole incident arose as a result of a dispute within the family for which you have been forgiven. Also the family as a whole has also been banished from the village and that, in itself, is a considerable consequence felt not just by you but all of your family members. Both of those factors permit me to reduce the sentence as do your pleas of guilty.
  • 18. Your father was sentenced to an endpoint sentence of 6 months for this offending, and I ask myself in fairness (and in taking a rather pragmatic view) whether it would be fair to sentence either of you to more than that.
  • 19. I have reached the conclusion that it is not and in respect of you, William, you are convicted now and sentenced to 6 months imprisonment. In your particular case, I then ask myself this question: had this matter been before me when I sentenced you to the lengthy term of imprisonment that you are serving, would it have added to the endpoint of your sentence or would it have run alongside? Despite it being an entirely different incident, I can say with certainty that it would not have added to the length of your already long sentence. You are still young and there needs to be some light at the end of the tunnel in terms of your rehabilitation while serving your prison sentence.
  • 20. For that reason, the sentence of 6 months will run concurrently – in other words, at the same time as your current sentence.
  • 21. I turn now to you, Francis. Why should a sentence of less than 6 months not be imposed, is the question I ask myself. I do have regard to the fact that you seem to be the only male member of your family who has currently been at home, assisting supporting your mother, wife and sister. That responsibility is a significant one given that you have all been banished and you are needing to pay rent on your current accommodation. Given that, and that I regard you and your brother, William, as being equally culpable in this offending, it would be fair to have regard to the fact that the sentence in respect of William has not really had an impact on his overall sentence.
  • 22. I will reduce the endpoint sentence but in the interest of justice there must, in my view, be a term of imprisonment and, on this charge, you are convicted now and sentenced to serve a term of 3 months imprisonment.
  • 23. I conclude simply by saying that this has not been an easy matter to deal with and certainly the Court would have been greatly assisted if even one legal counsel could have been appointed to represent you all. It has been complicated by the fact that you, Farani O’Brien, have been sentenced some months ago to a related offence and the fact that William is already serving a lengthy term. I have imposed sentences which balance all of those factors and they take a broad view of all of these factors but, in my view, reflect the interests of justice in terms of the endpoints arrived at.

_____________________

JUSTICE E M AITKEN