Police v Angai [2021] PGDC 80; DC6037 (5 July 2021)

DC 6037

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 469-470 of 2021

CB No. 725 of 2021

BETWEEN

THE POLICE
Informant

AND

TERENCE ANGAI
Defendant

Boroko: S Tanei

2021: 5^th of July
      

SUMMARY OFFENCE – Domestic Violence – s 6(1) – Family Protection Act 2013, Damaging Property – s 47(1) – Summary Offences Act 1977.

PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Domestic Violence – Mitigating Factors considered - Damage to Property- Information Defective – Struck out - Fine of K 500.00 – Protection Order Issued.

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.733 of 2021, 03.06.2021, Unreported

References

Legislation

Constitution of the Independent State of Papua New Guinea
District Courts Act 1963
Family Protection Act 2013

Counsel

Sergeant Wilson Golina, for the Informant

The Defendant in Person

RULING ON SENTENCE

5^th July 2021

S Tanei: The Offender, Terence Angai pleaded guilty to one count of Domestic Violence and one count of Damaging Property on 17^th June 2021.

2. This is my ruling on sentence.

FACTS:

3. The Offender, Terence Angai was charged with one count of Domestic Violence under section 6 (1) of the Family Protection Act 2013 and one count of Damaging Property under section 47 (1) of the Summary Offences Act 1977.

4. Terence Angai pleaded guilty to the following facts;

5. On 3^rd March 2021 at about 8 am, the Offender, was at home at Cherry Club, Gordons, National District. At that time he and his wife argued as to why his wife was at the back of the club looking for his cousin brother.

6. He used a pinch bar to break the glass window of their house. He then got a hammer and threw it at his wife but missed. He picked up their baby’s milk bottle and threw it at his wife and kicked and punched her several times.

7. When the wife escaped into the room, he followed her and broke the door of the room down with a brick. He then used the pinch bar to hit his wife. The wife blocked the pinch bar and screamed. Just then his cousin came in and saw them and stopped them.

8. A formal complaint was laid at the Family and Sexual Violence Unit at Boroko and the Offender was apprehended at his home and taken to the station where he as questioned. He admitted to committing the offence.

ANTECEDENT REPORT

9. The Offender is 32 years old and hails from Fima Village in Lufa, Eastern Highlands Province. He is married with 1 child and resides at Cherry Club, Gordons, NCD. He is Self Employed and manages the Cherry Club at Gordons.

ALLOCOTUS:

10. During Allocotus, the Offender said the following;

“This is my first time to appear before a Court. I ask the Court to restrain my wife Rhonda Ariko not to come to my work place and disturb my workers”

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.

13. Section 47 (1) of the Summary Offences Act 1977 provides that;

(1) In this section, “property” includes any personal property, house or other building, garden, crop, tree, fence, road, bridge, animal, reptile, bird or fish.

PRELIMINARY ISSUE

14. Before handing down the sentence, there is a preliminary issue that needs to be considered and dealt with by this Court.

15. The Court notes that one of the charges against the Offender is defective. This is the charge on Damaging Property.

16. I note that section 47 (1) of the Summary Offences Act does not create any offence. It merely describes the word “property”. The correct provision would have been section 47 (2) of the Summary Offences Act 1977 and not the one used.

17. The Prosecution has, at no stage in this proceeding, made any application to amend the Information containing the charge under section 47 (1) of the Summary Offences Act 1977. They are given this right to make amendments under section 32 of the District Courts Act 1963.

18. Section 37 of the Constitution of Papua New Guinea affords every citizen the full protection of the law.

19. Section 37 (2) of the Constitution provides that;

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

20. Thus, it will be a breach of this particular provision of the Constitution if the Offender is convicted and sentenced under section 47 (1) of the Summary Offences Act as Section 47 (1) does not create any offence.

21. It is therefore only proper that this particular charge is struck out.

SENTENCE

22. I am now left with only the charge of Domestic Violence under section 6 (1) of the Family Protection Act to decide on sentence.

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

24. I will adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 where the following decision making process was used:

• 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?

25. The maximum penalty provided for this offence under the Act is a fine of K 5, 000.00 or a term not exceeding two years or both. This is reserved for the worst case scenario.

Step 2: what is a proper starting point?

26. In many cases where the Offender pleaded guilty, the Courts held that the proper starting point would be the mid-point.

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

28. It is my view that the proper starting point also depends on the sentencing trends and the circumstances of each case.

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

29. It is important to look at the sentencing trends when handing down the sentence.

30. 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.

31. The Court took into consideration sentencing guidelines and principles established by the National Court.

32. 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.

33. 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.

34. 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.

35. 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.

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

Step 4: What is the head sentence?

37. When working out the sentence, the Court must look at mitigating and aggravating circumstances.

38. 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 cooperated with Police
     

39. The aggravating factors are;

1. The victim suffered injury to her body.
2. The offender used a weapon to attack the victim.
   

40. In submissions on sentence, Sergeant Wilson Golina of Police Prosecutions submitted that a non-custodial sentence is appropriate in that the Complainant is partly the cause of the problem in this matter.

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

42. Domestic Violence is a serious offence and it is prevalent in our communities. However, all cases must be dealt with on their own merits.

43. In dealing with this matter, I take into account the mitigating factors in this matter. Firstly, the Offender pleaded guilty right after he was arraigned. This saved the Court time. Secondly he has no prior convictions. He also cooperated with the Police.

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

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

46. While I do not condone the act of domestic violence, it is my view that sometimes the complainant or the victim pushes the offender to the point that the offender reacts in a violent manner. As husband and wife, it is the duty of both parties to respect each other and their value and place in society. Respect goes both ways. The husband will respect the wife if the wife respects him, vice versa.

47. Whatever the reasons, the law does not allow a person to assault another person without his or her consent. Domestic Violence must not be tolerated at all levels and the family unit must be protected at all costs. While the mitigating factors outweigh the aggravating factors, the Court notes that the Offender used a hard object namely a pinch bar to assault the victim. This aggravating factor has a lot of weight.

48. I also note that the Offender is a self-employed person whose business looks after his family. A custodial sentence would negatively affect his family.

49. After due consideration of all the factors, I find that the most appropriate sentence would be a fine of K500.

CONCLUSION

50. In conclusion, the Court finds the following.

51. Firstly, the Information bearing the charge of Damaging Property under section 47 (1) of the Summary Offences Act is defective as it creates no offence under the law.

52. Considering the mitigating factors and the sentencing trend, the appropriate penalty would be a fine of K 500.00.

53. 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

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

1. The charge of Damaging Property under section 47 (1) of the Summary Offences Act 1977, against the Defendant, is struck out for being defective.
   
2. Terence Angai, having pleaded guilty and being convicted of the offence of Domestic Violence under section 6 (1) of the Family Protection Act is to pay a fine of K 500.00
   
3. The Offender’s Bail of K 300.00 is forfeited and converted to pay part of the Court Fine.
   
4. The Offender shall pay the remaining K 200 within the next seven (7) days. If he fails to do so, he shall spend 2 months imprisonment in hard labour at Bomana Corrections Institution.
   
5. 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, Ronda Arigo and their child.
      
   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, Ronda Arigo 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 victim, Ronda Arigo 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.
6. The matter shall return to Court on 13^th June 2021 at 9.30 am to check on compliance with item 4 of these Orders.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person