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Police v Korua [2021] PGDC 122; DC6077 (30 August 2021)

DC6077

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1151 of 2021

CB No. 2026 of 2021
BETWEEN

THE POLICE
Informant


AND

KAY KORUA
Defendant


Boroko: Seth Tanei


2021: 30th of August
      


SUMMARY OFFENCE – Domestic Violence (Assault) – s 6(1) – Family Protection Act 2013


PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Domestic Violence (Assault) – Mitigating Factors considered - Fine of K 500.00 – Protection Order Issued.


Cases Cited


State –v- Dua [2013] PGNC 8; N4957
Robert Nogos –v- Korin Kaivi (2018) DC3068
Esther Belas –v- Mathew Magara (2018) DC3069
Police –v- Simon Akuani B. 360-361 of 2021, 11.03.2021, Unreported
Police –v- Ian Kaboanga [2021] PGDC 21; DC5077
Police –v-Vagi Rei B.733 of 2021, 03.06.2021, Unreported
Police –v- Terence Angai [2021] PGDC 80; DC6037


References


Legislation


Family Protection Act 2013


Counsel

Constable Tarabbie Agu, for the Informant

The Defendant in Person

RULING ON SENTENCE

30th August 2021


S Tanei: Kay Korua pleaded guilty to the charge of Domestic Violence (Assault) under section 6 (1) of the Family Protection Act 2013.


  1. Submissions on sentence were made on 17th August 2021.
  2. The following is my ruling on sentence

FACTS:


  1. The following are the facts to which the Offender pleaded guilty;
  2. On 16th July 2021 at around 7.30 am at Garden Hills, NCD, the Offender demanded his wife to dig holes in the ground with an iron rod so they could build a pig hut. However, his wife was tired and refused to follow his command.
  3. When the wife refused to follow his orders, the Offender started swearing at her. He then hit her with a light bulb and hit her on her mouth. Her face swelled and her lips broke as a result of the assault and she had blood running from her lips. She then ran to the Family and Sexual Violence Unit at Boroko and laid a complaint.
  4. The Offender was called in to the station where he was questioned to which he freely admitted to committing the offence. He was then formally arrested, charged and detained at Boroko Police Cells.
  5. The facts also say that he has a history of assaulting his wife.

ANTECEDENT REPORT


  1. The Offender is 50 years old and hails from Beha Village in Lufa, Eastern Highlands Province. He is married with 6 children and resides at Garden Hills, NCD. He is unemployed and has no prior convictions.

ALLOCOTUS:


  1. During Allocotus, the Offender said the following;

“Wanem samting me mekim em me rong. Me nonap mekim ken” . It means what I did was wrong. I will not do it again.


ISSUES:


  1. The Court is faced with the issue of what penalty it should give to the Offender for this offence.

THE LAW


  1. Section 6 (1) of the Family Protection Act 2013 provides that;

6. DOMESTIC VIOLENCE OFFENCE.


(l) A person who commits an act of domestic violence is guilty of an offence.


Penalty: A fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years or both.


SENTENCE


  1. I will use the following decision making process.

Step 1: what is the maximum penalty?

Step 2: what is a proper starting point?

Step 3: what sentences have been imposed for equivalent offences?

Step 4: what is the head sentence?


Step 1: what is the maximum penalty?


  1. This offence carries a maximum penalty of K 5, 000.00 fine or imprisonment for a term not exceeding two years or both. This is reserved for the worst case scenario.

Step 2: what is a proper starting point?


  1. The Offender pleaded guilty in this case so we will start at the midpoint.
  2. In our case, the mid-point would be an amount of K 2, 500.00 fine or 1 year imprisonment or both.

Step 3: what sentences have been imposed for equivalent offences?


  1. It is important to look at the sentencing trends and similar cases when handing down the sentence. The following are some cases that dealt with the offence of Domestic Violence (assault).
  2. In the case of Robert Nogos –v- Korin Kaivi, the offender pleaded guilty to one count of domestic violence under the Family Protection Act 2013. He was fined K 200.00 and ordered to pay a Compensation of K 200 to the victim.
  3. In the case of Balas –v- Magara, the Court found the Defendant guilty of Domestic Violence and imposed a sentence of six (6) months Good Behaviour Bond with K 200 surety on the Defendant.
  4. In the case of Police –v- Simon Akuani, the Offender pleaded guilty to 2 counts of the Offence of Domestic Violence. He was fined K 600.
  5. In the case of Police –v- Ian Kamboanga, the Offender pleaded guilty to the Offence of Domestic Violence. He was fined K 300 and a Family Protection Order was issued against him.
  6. In the case of Police –v- Vagi Rei, the Offender pleaded guilty to the Offence of Domestic Violence. He was fined K 300, ordered to pay compensation of K 500 under section 21 of the Family Protection Act 2013 and a Family Protection Order was issued against him.
  7. In the case of Police –v Terence Angai, the Offender pleaded guilty to one count of Domestic Violence. He was fined K 500 and a Family Protection Order was issued against him.
  8. In those cases, the Court held that those did not fall under the worst case scenarios.

Step 4: What is the head sentence?


  1. It is important that I consider the mitigating and aggravating factors before I come up with a head sentence.
  2. In our case, the mitigating factors are;
    1. Early Guilty Plea
    2. First Offender
    1. No weapon was used
    1. He cooperated with the Police
  3. The aggravating factors are;
    1. The victim suffered injury to her body.
    2. Violence was used
  4. Constable Tarabbie Agu of Police Prosecutions submitted that this issue has been ongoing in the Offender’s family. He also submitted that it is the victim’s wish that the Offender be given a non-custodial sentence.
  5. I also take note that this particular offence has become prevalent in our society.
  6. In this case, the victim suffered bodily injury from the assault by the Offender. This is a very serious offence. No one is allowed to assault and injure another person. This is an Offence under the Family Protection Act 2013. This particular legislation is intended to protect members of a family from any form of assault by another family member. Members of a family must at all times respect each other.
  7. While I find that this particular case does not fall under the worst case scenario, I note that the victim suffered bodily injury through the Offenders action. However, there are more mitigating factors than aggravating factors in this case. The Offender pleaded guilty early, he has no prior convictions, he cooperated with the Police and there was no weapon used.
  8. The offender’s mitigating factors work in his favour in this case.
  9. After considering all the factors, I find that the most appropriate penalty would be a fine of K 500.

CONCLUSION


  1. After considering the mitigating factors and the sentencing trend, I find that the appropriate penalty against the Offender would be a fine of K 500.00.
  2. Taking into account the Offender’s history of violence and in its endeavour to protect the victim, the Court imposes a Protection Order against the Offender pursuant to section 22 of the Family Protection Act 2013 the details of which are covered in the Orders below.

COURT ORDERS


  1. The following are the formal orders of the Court;
  2. Kay Korua, having pleaded guilty and being convicted of the offence of Domestic Violence - Assault under section 6 (1) of the Family Protection Act 2013 is to pay a fine of K 500.00
  3. The Offender shall be remanded in custody at Bomana Corrections Institution pending the payment of the fine. He shall be released as soon as he pays the fine.
  4. The Court also imposes a Protection Order against the Offender in the following terms;
    1. The Offender must be of good behavior and must maintain peace at all times towards the complainant, Lisa Kay and their children.
    2. The Offender must not commit any act of domestic violence including any physical violence or any threat of violence directly or indirectly on the victim, Lisa Kay in NCD or anywhere else in PNG
    1. The Offender is restrained and prohibited from harassing, intimidating and or using abusive and offensive words, behaviours and gestures on the victim, Lisa Kay and their children.
    1. In the event the Offender breaches this order and the conditions attached hereto, he shall be arrested, charged, brought to court and be dealt with according to law and the Provisions of the Family Protection Act 2013.
    2. This protection Order shall be in force for twelve (12) months commencing this instant.

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person

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