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Police v Brown [2023] WSFVC 2 (2 October 2023)

IN THE FAMLY VIOLENCE COURT OF SAMOA
Police v Brown [2023] WSFVC 2 (2 October 2023)

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

IOANE EMOSI BROWN

Defendant

Representation: F. Kolia for the Prosecution
Defendant appears in Person

Sentence Hearing: 15th September 2023
Sentence: 2nd October 2023

SENTENCING DECISION OF JUDGE ATOA-SAAGA

CHARGES

1. Ioane Emosi Brown, you appear for sentencing for crimes committed against your father in law for prohibiting you from seeing your wife and child. They live in New Zealand. You have been charged with (7) offences of:
   • (i) Actual Bodily Harm under Section 119(2) of the Crimes Act 2013 and carries a maximum penalty of 5 (five) years.
   • (ii) Assault pursuant to Section 123 of the Crimes Act 2013 carries a maximum penalty of one (1) year.
   • (iii) 2 Counts of Armed with a Dangerous Weapon pursuant to Section 25 of the Police Offences Ordinance 1961 which carries a maximum penalty of one (1) year imprisonment for each count.
   • (iv) Intentional Damage pursuant to Section 184(2)(a) of the Crimes Act 2013 which carries a maximum penalty of (7) seven years.
   • (v) One count of Threatening words pursuant to Section 4(g) of the Police Offences Ordinance 1961 which carries a maximum penalty of three (3) months imprisonment.
   • (vi) One count of Insulting words pursuant to Section 4(g) of the Police Offences Ordinance 1961 which carries a maximum penalty of three (3) months imprisonment.
2. You initially pleaded guilty to the charges of Intentional Damage, Assault and two counts of Armed with Dangerous Weapons and entered a Not Guilty plea to charges of Actual Bodily Harm, Threatening and Insulting words.
3. A hearing was conducted and you were found guilty of the charges that you entered a not guilty plea to.

THE ACCUSED:

4. You are 38 years old and you were married to the Victim’s daughter. Your wife lives in New Zealand with your son.

THE VICTIM

5. The Victim is 66 years of age. He is retired and was in Samoa at the time you committed the offences.

SUMMARY OF THE OFFENDING

6. On the 1^st of October 2022, you walked to the victim’s family home and enquired about the whereabouts of the victim.
7. You were armed with a sledgehammer.
8. You were informed that he was at the plantation.
9. You broke the lock of the gate to the plantation and walked up to the house.
10. The victim was inside the house when you arrived at the plantation.
11. You walked inside the house with the sledgehammer and questioned the Victim why he had directed his daughter to leave you. You also said to him, “O le aso legei ou ke fasiokia ai oe. (“You are going to die today”)
12. You used the sledgehammer to hit the floor of the house.
13. The victim tried to stop you by grabbing you but you struggled with him and pushed him. The Victim fell outside the house and landed on the ground. The house is built a fair distance above ground level and is held up by stilts.
14. You walked outside the house using the wooden step that has since been dismantled by the Victim.
15. You punched him continuously while he was on the ground.
16. The victim cried while watching you. A young nephew of the Victim was too afraid to intervene and was powerless to stop you.
17. You walked over to the Victim’s pickup parked next to the house and hit the windshield and windows of the pickup. You maintained that you had hit the said parts of the vehicle with your hands and not with the sledgehammer and as a result, the windshield and the windows were smashed and damaged. While it is difficult to ascertain how you could have done that with your bare hands, I have given you the benefit of the doubt and will accept that at the time, you had extraordinarily strong hands to shatter the windshield and windows into pieces consecutively.

AGGRAVATING FACTORS AS AN OFFENDER

18. The Victim is your father-in-law and the grandfather of your child. Your domestic relationship with the Victim is an aggravating factor that I must consider under Section 17(1) of the Family Safety Act 2013.
19. There was a breach of the respected customary boundary of “va tapuia”.
20. You were intoxicated at the time.
21. The victim sustained the following injuries:
    • (i) Laceration on the right side of his neck;
    • (ii) Abrasions on the right shoulder and left and right feet;
    • (iii) Extensive bruise on the right forearm.
22. There is an element of premeditation.
23. The Victim is an elderly person. He is frail and much smaller in build as compared to your muscular and well-built frame. You turned on a frail old man who could not defend himself. Your act was an act of a coward.
24. You purposely and menacingly carried a sledgehammer for the purpose of intimidating the victim and damaging the house that you claimed was built by you when you were living there.
25. Your sense of entitlement blinded you to the fact that he is the father of your wife and that he owns the property and the house. He also has every right to protect his daughter. In his victim impact report, the victim explained it was to protect his daughter from your excessive consumption of alcohol and abusive behaviour that led him to prohibit his daughter and grandchild from seeing you. Your actions have convincingly validated the concerns the victim had about you.
26. At the conclusion of the matter, you showed no remorse. The changes in your behaviour only became apparent when the Prosecution read out the Sentencing Memorandum citing an imprisonment term starting from 3 years.

THE MITIGATING FEATURES AS AN OFFENDER

27. You are a first offender.
28. Your mother has provided a testimonial in support of your pleas in mitigation. Your mother is 74 years old and she vouches that you are responsible for looking after her. You also have nine other siblings.
29. Reverend Salesa Faapio Falefatu has also provided a testimonial. In his testimonial, he speaks of you as a person who is a reliable member of his church. You are an active member of the church choir and the group of untitled men of the church.
30. The representative of your village also supports you by providing a confirmation that you have already paid a penalty of $3,000 and 3 fine mats. A traditional ifoga was also conducted between the matais of your family and the victim’s family.
31. In the Victim Impact Report, the victim raised a concern that only the matais from your village and family were present at the ifoga. The ifoga was also conducted at the matai’s place and he was not present. I have put that part of the victim impact report to you and I have accepted the reason for your absence. At the time, you were prohibited from seeing the victim as a bail condition.
32. You had also while awaiting sentencing completed 4 weeks program with Samoa Victim Group.
33. Recently, a letter was also tendered from the Victim asking for the leniency of the Court as you and your mother had visited him and apologized to him.

DISCUSSIONS

34. Prosecution seeks an imprisonment term.
35. After weighing the aggravating factors against the mitigating factors, I have decided that an imprisonment term is warranted.
36. The purpose of sentencing you today is to hold you accountable for the harm that you have done to the victim and the community for the offending. There is an increasing number of cases involving acts of violence on parents and elderly people. There must be a deterrence for this kind of behaviour and the Court cannot condone the commission of any acts of domestic violence on a parent who was only trying to protect his child. A parent’s right to protect their children does not end when the children are adults or when the parents are incapacitated by age and ailment. An attempt to intimidate any parent and force them to renege on a decision that they had made for the protection of their child is unacceptable and totally inappropriate.
37. Prosecution is seeking a starting point of three years and refers the Court to Police v Upuese [2019] WSSC 84, Police v Sefo [2015] WSSC 195 and Police v Uelese [2015] WSSC 113.
38. In the Police v Upuese, the Defendant was charged with aggravated burglary and robbery on two separate victims. The starting imprisonment term imposed by the Court for aggravated burglary was 3 years. I distinguish that case from the current case.
39. In Police v Sefo (supra) the female defendant and her female co-accused were charged with intentional damage and wilful trespass. They had entered the premises of the victim a Chinese National and assaulted the victim with a piece of timber and stones. They later returned with stones and threw the stones at the victim’s house breaking the windows. The Court imposed a starting point of 12 months and sentenced the Defendant to 9 months imprisonment for intentional damage.
40. In Police v Uelese (supra) the two Defendants were charged with intentional damage. The Court imposed a starting point of 12 months. The First Defendant was imprisoned for four months while the Second Defendant was given a supervision term of 150 hours of community work.
41. There was no domestic relationship between the Defendants and the victim in the latter cases.
42. For the lead charge of intentional damage, I will impose a starting point of 18 months. I will then deduct 6 months for the mitigating factors bringing the total number of months to 12 months. I will also deduct 3 months for you being a first offender and another 3 months for your guilty plea. Leaving a term of 6 months to be served.
43. In respect of the other charges, you are sentenced to 12 months of supervision following your imprisonment term.

JUDGE ATOA-SAAGA