Police v Kaboanga [2021] PGDC 21; DC5077 (26 April 2021)

DC5077

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 548 of 2021
BETWEEN

THE POLICE
Informant

AND

IAN KABOANGA
Defendant

Boroko: S Tanei

2021: 26^th of April
      

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

PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Domestic Violence - Mitigating Factors considered – Fine of K 300.00 – Protection Order Issued.

Cases Cited

State –v- Dua [2013] PNGNC 8; N4957
National Fisheries Authority –v- Pais Taihu [2020] DC4075
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

References

Legislation

District Courts Act 1963
Family Protection Act 2013

Counsel

Constable Tarrabie Agu, for the Informant

The Defendant in Person

RULING ON SENTENCE

26^th April 2021

S Tanei: The Offender, Ian Kaboanga pleaded guilty to one count of Domestic Violence on 12^th April 2021.

2. This is my ruling on sentence.

FACTS:

3. The Offender, Ian Kaboanga was charged with one count of Domestic Violence under section 6 (1) of the Family Protection Act 2013.

4. Ian Kaboanga pleaded guilty to the following facts;

5. On 17^th March 2021 at about mid-day, Ian Kaboanga, the Offender, was at his work place at Holiday Inn, Waigani, National Capital District where his wife, the Complainant and their daughter approached him. They had argued earlier in the week. The facts say that the Offender had left their family home and gone to Gerehu with his relatives. He stayed there for a week. The Complainant then went to the Offender’s work place to enquire as to why he had left her and their children alone for the week.

6. When the Offender saw the Complainant, they argued and the Offender punched the Complainant on her right eye causing it to bleed just above the right eye brow. Their daughter was frightened when she saw them fight so she ran out into the main road. The Offender followed her into the road. Just then a Police vehicle drove by and saw them and stopped the fight.

7. The parties were brought to Hohola Police Station where the victim formally reported the matter to the Family and Sexual Violence Unit. The offender was questioned about the matter to which he admitted.

8. The Offender was later was cautioned, told of his Constitutional rights and formally arrested and later detained at Boroko Cell.

ANTECEDENT REPORT

9. The Offender is 39 years old and hails from Baliyau Village in Manam Island, Madang Province. He is married with two (2) children and resides at Gerehu Stage 4 with his family. He is employed as a driver with Holiday Inn Hotel and has no prior convictions.

ALLOCOTUS:

10. During Allocotus, the Offender said the following;

“As a first time offender, I would like to apologise to the Court and to my wife. I have my reasons. She burnt my original educational certificates. However, I am sorry and I ask for the Court’s mercy”

ISSUES:

11. The Court is faced with the issue of what sentence it should impose on the Offender.

THE LAW

12. 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
13. In deciding on the appropriate sentence the Court must be guided by sentencing principles.

14. I adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and His Worship Mr. Samuel Lavutul in the case of National Fisheries Authority –v- Pais Taihu [2020] DC4075. The following decision making process was used in those cases:

• 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?

15. The maximum penalty provided for this offence under the Act is a fine of K 5, 000.00 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?

16. In the cases provided above, the Courts held that the proper starting point would be the mid-point since the Prisoner pleaded guilty.

17. In our case, the mid-point would be an amount of K 2, 500.00 fine or 1 year imprisonment or both.

18. Despite the cases starting their sentences at the mid-point, it is my view that it depends on the sentencing trends in each offence and the circumstances in each case when deciding on a starting point.

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

19. It is important to look at the sentencing trends in similar cases when handing down the sentence. The following are some reported cases where the Court dealt with sentences in relation to Domestic Violence under section 6(1) of the Family Protection Act 2013.

20. In the case of Robert Nogos –v- Korin Kaivi [2018] DC 3068, the offender pleaded guilty to one count of domestic violence under section 6 (1) of the Family Protection Act 2013 where he physically assaulted his wife over a number of days. He was fined K 200.00 and ordered to pay a Compensation of K 200 to the victim. The victim in this case was given a Protection Order for 12 months.

22. In the case of Esther Balas –v- Mathew Magara [2018] DC3069, the Court found the Defendant guilty of Domestic Violence under section 6 (1) of the Family Protection Act 2013where he punched his wife on her head several times. The Court placed him on six (6) months Good Behaviour Bond with K 200 surety.

23. In the case of Police –v- Simon Akuani B. 360-361 of 2021, 11.03.2021, Unreported, the Offender pleaded guilty to two (2) counts of Domestic Violence against his wife and child under section 6 (1) of the Family Protection Act 2013. He was fined K 600.

24. In those cases, the Court held that those did not fall under the worst case scenarios.

Step 4: What is the head sentence?

25. Because the Offender pleaded guilty, he will be given the benefit of the doubt on mitigating factors. I will consider both the mitigating and aggravating factors.

26. In our case, the mitigating factors are;

1. The offender pleaded guilty to the offence right after he was arraigned.
2. The offender is a first time offender with no prior convictions.

100. He showed genuine remorse.

4. He cooperated with Police
   

27. The aggravating factors are;

1. The victim suffered injury to her right eye brow from the punch.
   

28. In submissions on sentence, Constable Tarrabie Agu of Police Prosecutions submitted that this offence is prevalent and the Court must impose a deterrent sentence so as to deter people from committing them.

29. The Prosecutor asked the Court to impose a sentence of 18 months imprisonment on the Offender with a fine of K 1, 000.00.

30. In response, the Offender told the Court that he hit the victim because the victim wanted to remove him from employment as a driver with Holiday Inn Hotel at that time. He also said the victim had burnt all his educational certificates and as such he was so angry. However, he submitted that he is the only bread winner in his family and his wife is unemployed. A custodial sentence would not be in the best interest of his family. In his submissions in response he said he was so sorry for his actions and asked for the Court’s mercy.

31. While the Defendant may have his reasons to act the way he did, the law does not allow it.

32. The offence of Domestic Violence is prevalent in this Country and the Court must do its best to deter people from committing it. The intent of the Family Protection Act under which the offence in this proceeding is found is to ensure that members of a family are safe and protected from each other. One member of the family must not use violence or intimidation against another or other members of the family whatever his or her reasons may be. This is reflected in the severity of the Penalty provision in section 6 (1) of the Act.

33. People must know that there are better ways of resolving disputes than resorting to violence. This is not a case where the Offender acted in the spur of the moment. He had time to cool down and walk away. His reason for his action does not amount to a defence in law and will not form any mitigating circumstance. This matter would have been avoided if the Offender walked away from the victim. Also, beating the victim will not bring the Offender’s certificates back. There is no place for domestic violence in law.

34. While I do not condone the act of domestic violence in this case, I also note that sometimes the victim’s actions attract the violence on them. In this case the victim attended at the Offender’s work place to argue. Any normal human being would be ashamed and reacted if put in such a situation. Family disputes and domestic arguments are better resolved at home between the parties themselves and their families and if the need be the rightful authorities such as welfare and counselling services and not brought out to the public. Attending at the Offender’s workplace will not resolve the issue the family is having at home. It only makes the situation worse.

35. Domestic Violence is a serious offence and that it is prevalent in our communities. However, it is my view that all cases must be dealt with on their own merits and circumstances when it comes to sentencing.

36. I have carefully weighed out the aggravating factors and the mitigating factors and I note that the mitigating factors outweigh the aggravating factors.

37. I take into account the mitigating factors in this matter. Firstly, the Offender pleaded guilty right after he was arraigned and maintained his guilty plea. This saved the court and the prosecution time if it were to proceed through a trial. Secondly, I note that the Defendant expressed genuine remorse. He took responsibility of his actions and asked the Court for mercy. Thirdly, he is a first time offender with no previous convictions and he co-operated with Police.

38. I find that these factors work in favour of the Offender.

39. I also find that this case does not fall under the worst case scenario.

40. Considering the mitigating factors and the sentencing trend, I find that the appropriate penalty would be a fine of K 300.

41. I do not find imprisonment or a custodial sentence appropriate in this circumstance given the fact that the Offender is the sole bread winner in the family and his wife the victim is unemployed. His children wholly depend on him for maintenance. Imprisonment will remove him from his family’s source of income and will inflict more suffering on them.

42. However, to ensure that the Offender changes his ways I will issue a Protection Order invoking the powers vested in me under Section 22 of the Family Protection Act 2013.

43. It is my view that the Protection Order will ensure that the Offender reflects on his actions and change for the better. It will also give the opportunity to the Offender and his family to make amends resolve their differences.

CONCLUSION

44. The Offender having pleaded guilty and being convicted of the offence of Domestic Violence under section 6 (1) of the Family Protection Act is fined K 300.

45. I also impose a Protection Order against the Defendant in the terms listed below.

SENTENCE

46. The following are the formal orders of the Court;

1. Ian Kaboanga, having pleaded guilty and being convicted of one count of the offence of Domestic Violence under section 6 (1) of the Family Protection Act is to pay a fine of K 300.00
   
2. The Offender’s Bail of K 300.00 is forfeited and converted to Court Fine.
   
3. 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, Yoko Konerus 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 complainant, Yoko Konerus in NCD or anywhere else in PNG
      
   100. The Offender is restrained and prohibited from harassing, intimidating and or using abusive and offensive words, behaviours and gestures on the complainant, Yoko Konerus and their children.
        
   4. 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.
      
   5. 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