Police v Rufus [2021] PGDC 126; DC6081 (2 September 2021)

DC6081

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1135 of 2021

CB No. 2014 of 2021
BETWEEN

THE POLICE
Informant

AND

BART RUFUS
Defendant

Boroko: Seth Tanei

2021: 2^nd of September
      

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 and Aggravating Factors considered – Imprisonment for 18 Months

Cases Cited

State –v- Dua [2013] PNGNC 8; N4957
Robert Nogos –v- Korin Kaivi [2018] DC 3068
Esther Belas –v- Mathew Magara [2018] DC 3069
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.No.733 of 2021, 03.06.2021, Unreported
Police –v- Terence Angai [2021] PGDC 80; DC6037
Police –v- Kay Korua B. No 1151 of 2021;30.08.2021, Unreported

References

Legislation

Family Protection Act 2013

Counsel

Sergeant Wilson Golina, for the Informant

The Defendant in Person

RULING ON SENTENCE

2^nd September 2021

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

2. Submissions on sentence were made on 25^th August 2021.
   
3. The following is my ruling on sentence
   

FACTS:

4. These are the facts to which the Offender confirmed his guilt;
   
5. On 16^th February 2021 at about 8.00 am at Nigibata Road ,Gerehu Stage 2, NCD, the Offender argued with his wife, the Complainant, at their home. He then assaulted her by pushing her to the floor and had her face down on the floor. While his wife was on the floor, he tried to tie a rope around her neck but the Complainant struggled with him and removed the rope. He then grabbed an electric cord to tie around the Complainant’s neck but the Complainant struggled and removed the cord. He then placed his foot on the Complainant’s neck and kept her down on the floor and used his right foot to kick the Complainant’s head against the floor of their house several times with great force. The Complainant suffered a cut on the right side of her forehead and lost a lot of blood as a result. She was in a pool of blood.
   
6. When the Complainant’s sister saw this she sought help from security guards who broke open the door and chased out the Offender. They then brought the Complainant to Gerehu Hospital for treatment.
   
7. A complaint was laid at the Family and Sexual Violence Unit at Boroko and the Complainant made attempts to get the Offender in for questioning but the Offender evaded the Police.
   
8. On 19^th July 2021, the Offender was at home at Nigibata street, Gerehu Stage 2 when the Complainant alerted the Police and they apprehended him and detained him at Gerehu Police Station Cell.
   
9. On 20^th July 2021, the Offender was brought to the Family and Sexual Violence Unit at Boroko where he was questioned. He admitted that he did assault the Complainant. He was then formally arrested and charged for Domestic Violence –assault under section 6 (1) of the Family Protection Act 2013 and detained at Boroko Police Cells.
   

ANTECEDENT REPORT

10. The Offender is 35 years old and hails from Busuma Village, Salamaua, Morobe Province. He is married with 3 children and resides at Nigibata Road, Gerehu Stage 2, NCD. He is unemployed. He has prior convictions for Unlawful Assault, Possession of Offensive Weapon, Damaging Property, Threatening Behaviour and Domestic Violence.
    

EXHIBITS:

11. The following exhibits were tendered during submissions on sentence. The Offender had no objections.
    
    1. Exhibit P1 – Recognisance without Surety signed by the Offender on 1^st November 2017
    2. Exhibit P2 – Court Order of 5^th August 2020 finding the Offender guilty of Domestic Violence.
    100. Exhibit P3 – Certificate of Conviction of 5^th August 2020 confirming the Offender’s Conviction in 2020.
    4. Exhibit P4 – Pictures of the items used by the Offender to attack the Complainant and of the Complainant’s injuries.
    5. Exhibit P5 – Medical report of the Complainant dated 18^th February 2021.
       

ALLOCOTUS:

12. During Allocotus, the Offender said the following;
    

“Me tok sorry lo kot na me askim lo marimari blo Court”. It means I apologise to the Court and I ask for the Court’s mercy.

ISSUES:

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

THE LAW

14. 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

15. I will use the decision making process used in the cases of 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; DC 6037 and Police –v- Kay Korua [2021].
    

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 5: Should the time in custody be deducted?

Step 6: Should all or part of the sentence be suspended?

Step 1: what is the maximum penalty?

16. The maximum penalty for the offence of Domestic Violence under this Act is a fine of K 5000 or imprisonment for 2 years or both.
    
17. Many courts have held that the maximum is reserved for the worst case scenario. I adopt that view.
    

Step 2: what is a proper starting point?

18. I have held in many cases where the Offender pleaded guilty that the proper sentencing starting point is the midpoint.
    
19. In our case, the mid-point would be an amount of K 2, 500.00 fine or 1 year imprisonment or both.
    
20. The Court will start at the mid-point and make its way up or down depending on the mitigating and aggravating factors.
    

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

21. The following are some cases where the Court dealt with the offence of Domestic Violence (assault) and imposed sentences on the Offenders.
    
22. 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.
    
23. 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.
    
24. 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.
    
25. 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.
    
26. 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.
    
27. 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.
    
28. In the case of Police v Kay Korua, the Offender pleaded guilty to the charge of Domestic Violence – assault. He was fined K 500 and had a Protection Order issued against him.
    
29. In those cases, the Court held that they did not fall under the worst case scenarios.
    

Step 4: What is the head sentence?

30. In order to come up with the most appropriate penalty, the Court will consider the mitigating as well as the aggravating factors.
    
31. In our case, the mitigating factors are;
    1. Early Guilty Plea
       
32. The aggravating factors are;
    
    1. The victim suffered injury to her body.
    2. Violence was used
    100. Objects were used in the commission of the offence
    4. The Offender has a number of prior convictions
    5. He did not cooperate with Police
       
33. Sergeant Wilson Golina of Police Prosecutions submitted that this case falls under the worst case scenario as the Offender violently attacked the Complainant. He also used objects such as a rope and a power cord to try to tie the Complainant’s neck when he assaulted her. He submitted that this particular offence is so prevalent in this country.
    
34. I agree that this particular offence has become prevalent in our society and something must be done to deter people from committing this particular offence.
    
35. In this case, the victim suffered bodily injury from the assault by the Offender as stated by the Medical Report Tendered as exhibit P5. The Offender did not stop when he saw the victim being hurt; he was stopped by security guards. He is lucky he was not charged with an indictable offence. The Offender also has prior convictions, one of which was for the offence of domestic violence in 2020.
    
36. The circumstances surrounding this case put it under the worst case category. The aggravating factors overly outnumber the mitigating factors. The presence of the aggravating factors shows that this is one of the worst cases of domestic violence.
    
37. I now turn to the purposes of sentences. They are for deterrence, retribution, separation and rehabilitation.
    
38. In this matter, I am of the view that the sentence that I impose must deter the Offender and other people from committing the offence again. It must also rehabilitate him. It must also separate him from his wife so that he does not assault her. The Offender is unemployed and will not be able to pay a fine. Also, he has a number of prior convictions and I am reluctant to impose a non-custodial sentence as there is no guarantee that the Offender will not recommit this particular offence.
    
39. I am of the view that only a custodial sentence would achieve those purposes of sentencing.
    
40. After considering all the factors, I find that the most appropriate penalty would be imprisonment for a term of 18 months.
    

CONCLUSION

41. I therefore impose a sentence of 18 months imprisonment against the Offender.
    

COURT ORDERS

42. The following are the formal orders of the Court;
    
    1. Bart Rufus, having pleaded guilty and being convicted of the offence of Domestic Violence - Assault under section 6 (1) of the Family Protection Act 2013 is sentenced to 18 months imprisonment in hard Labour at Bomana Corrections Institution.
       
    2. Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986, the Offender’s period in custody of 1 month 12 days shall be deducted from his total sentence.
       
    3. The Offender shall serve a total of sentence of 16 months 18 days in custody at Bomana Corrections Institution.
       
    4. A Warrant of Commitment is issued forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person