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Police v Deklin [2022] PGDC 54; DC8057 (6 April 2022)

DC8057

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION


SUM: 96 of 2022


BETWEEN


POLICE
(Informant)


AND


PETER DEKLIN
(Defendant)


Vanimo: B. Fehi


2022: 06th April


CRIMINAL SUMMARY: Guilty Plea on 1 count of Domestic Violence pursuant to Section 6 (1) of the Family Protection Act – Sentencing principles – Purpose of sentencing – the Principle of Proportionality – Sentencing guidelines – midpoint – sentencing trends – Aggravating and Mitigating factors – Community views – categorization of types of domestic violence and the sentencing approaches it attracts – long probation period with specific conditions appropriate – issuing of Family Protection Orders appropriate – listing and identification of the type of abuse victim suffered – conditions of probation should ensure victim is protected from future such abuses.


Cases Cited:


Legislation:


Representation:


Decision on Sentence


6th April 2022


  1. FEHI. B DCM: The defendant was charged with 1 count of Domestic Violence pursuant to Section 6 (1) of the Family Protection Act. Guilty plea entered and this is now my decision on sentence.

RECORD OF PROCEEDINGS


  1. The defendant appeared before me on a police bail of K200 for his first mention and arraignment on 23rd of March 2022. During arraignment defendant admitted to the charge and the police had the brief facts read to him. Defendant upon hearing the brief facts raised no objections, thereafter I perused through the contents and satisfied myself that it was safe to confirm the guilty plea of the defendant and entered on record same. Prosecution tendered defendant’s antecedent report and I confirm him to be a first time offender, he is unemployed and resides at Lido Village with his wife and 2 children. In his allocutus defendant asked for mercy and showed remorse for his actions. Thereafter the matter was adjourned to 08th April 2022 for sentencing with his bail converted to court bail and extended. Direction was also issued for Ms. Binjari of Community Based Corrections Office Vanimo to prepare and file before me a Pre-sentence Report (PSR) of the Offender no later than 01st April 2022. Prior to sentencing I have had the benefit of reading through the PSR and thank Ms. Binjari for her efforts. Contents of the PSR were considered and included where relevant in my decision.

POLICE SUMMARY OF FACTS


  1. It was admitted that on Tuesday 15th of March 2022, between the hours of 5:30pm and 6pm the offender was at Lido Village Vanimo West-Coast. The victim namely Elizabeth Deklin was his biological elder sister and was staying at their uncle’s house when she was approached by the offender and attacked. He attacked her by punching her with his right hand, he then grabbed hold of her neck causing her to lose consciousness. While lying on the floor unconscious she was further assaulted by being kicked on the head and backside of her body. As a result of the attack she sustained several injuries to her body. She received medical treatment thereafter and had a medical report prepared as a testament to her injuries. Matter was reported to Vanimo Police Station and the defendant was brought in for interrogation, during which, he confirmed the assault. Thereafter he was processed and released on a Police bail of K200, from which he now appears before me.

THE LAW AND MAXIMUM PENALTY


  1. Defendant was charged pursuant to Section 6 (1) of the Family Protection Act (FPA). The provision reads as follows:

6. DOMESTIC VIOLENCE OFFENCES


(1) 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.

(2) It is not a defence to an offence under Subsection (1) that the defendant has paid an amount of money or given other valuable consideration, in accordance with his or her custom, to the complainant.
  1. The maximum penalty is a fine of up to K5, 000.00 or in the alternative an imprisonment term of up to 2 years. It is trite law that the maximum penalty should be reserved for the worst category of cases under each offences. See the Supreme Court judgment in the Matter of Re Maximum Penalty [1984] PNGLR 418.
  2. I note that I have not had the benefit of seeing the recent amendments to legislations increasing the sentences beyond the accustomed 2 years limit at the time of my writing of the judgment in the matter of Police v. Kenneth Howigo [2021] DC5081 and others, I now accept as correct the position that District Courts’ Magistrates have the power to impose imprisonment term of more than two (2) years inline with the respective enabling legislation, like the recent amendment to the Dangerous Drug Act. However, most offences carry the maximum of two years imprisonment term, notably those prescribed under the Summary offences Act and other legislations including the Family Protection Act.
  3. I have also find much difficulty in coming up with a simplified explanation of the ‘modus operandi’ in sentencing as was apparent in my other earlier judgments in the likes of Police v. Kenneth Howigo (Supra), Police v. Kennedy [2021] DC5086 and subsequent others that followed. My take on sentencing was more rhetoric rather than having meaningful content. I now wish to narrow the narrative to one that is not only simple but meaningful with content.

SENTENCING PRINCIPLES


  1. I must say at the outset (as alluded to above) that sentencing is not an easy task, there is present a lot of considerations on several fronts. It is therefore important to clearly identify the purpose one needs to achieve before embarking on this exercise. Case precedents have met this challenge overtime, out of the many I adopt and apply as relevant Her Honor T. Ganaii’s remarks (as borrowed from earlier case precedents) in The State v. Paya (No.2) [2021] N9363 at paragraph 35:

“The purpose for sentencing are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender and to recognize the harm done to the victim, the community and the State....”

  1. To achieve a particular purpose the sentence impose must fit the crime. There must be a balance between the corrective measure and the seriousness of the criminal conduct. Courts’ commonly referred to it as the principle of proportionality. This is an important consideration within the sentencing exercise as was emphasized by His Honor, Narokobi J in State v. Kaboanga [2020] N8634, paragraph 15:

“Ultimately, what is important is described as the principle of proportionality. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient (State v. Kiaro (2020) N8610)”


  1. To achieve proportionality in sentencing, it is fundamental to identify and outline factors within the whole circumstances of the case that either aggravate or mitigate the criminal conduct. Generally, this factors will be taken into account (together with others) when determining the appropriate sentence, but as to what weight is given to these factors is in the discretion of the courts. I adopt and apply as relevant the views and cases relied on by my brother Magistrate Ore in his judgment in Police v. Lasu [2022] DC8030 at paragraphs 17 and 18:

“Sentencing is a discretionary matter for the Court. There are numerous case laws that dwell into this discretionary power that is vested in Courts. Some of these cases include Vagi Gau v Ken Kone Eava [1976] PNGLR 485; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.“


“In the exercise of its discretion in deciding an appropriate penalty, the Court must be objective and treat each case according to its own back ground. The background of each case will defer and includes the facts of each case, the mitigating factors and also the aggravating factors. These along with similar recorded cases all play a crucial part in assisting the Court to determine an appropriate penalty”

  1. His Worship Ore, in my view was correct to emphasis the importance of identifying a mid-point as the proper starting point, the approach he formulated in Police v. Lasu (supra) conforms with the practices of the our District Courts. I agree with the following, his observations at paragraph 26:

“In many National Court and District Court cases, the proper starting points for any given offences where an offender had pleaded guilty is the midpoint of the penalty. Some of these cases include State v Mavung [2012] PGNC 255; N4898; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.”

  1. The courts’ discretion is used to either impose a sentence higher or lower than the midpoint. How then does the court go about doing this? I have had the benefit of reading the judgment of brother Magistrate S. Tanei who in his Judgment in Police v. Laiko [2021] DC5076, affirmed what was earlier adopted by his Worship Komia in Police v. David [2021] DC5056, observed as proper the use of steps as checklist to pick out relevant factors within the whole case spectrum as a guide to reach an appropriate penalty proportionate to the crime.
  2. I adopt this approach with slight adjustment and outline the following as my checklist:
    1. What is the mid-point of the prescribe penalties;
    2. What are the factors in aggravation and mitigation;
    1. What are some other consideration and their weight either for or against the offender;
    1. What are the relevant guidelines to follow in reaching an appropriate sentence for the offender and the sentencing trend;
    2. What is the head sentence for each respective offence;
    3. Should the sentence be concurrent or cumulative; and
    4. Should there be any deductions or suspension.
  3. In summary I have only the task of dealing with one issue and that is to decide on what is an appropriate sentence to impose on the offender. I am also reminded of the notion that there is no mathematical formula in sentencing. It is very much dependent on the present factors and relevant considerations all taken into account to reach an appropriate sentence. Prominent of all, are the aggravating and mitigating factors and circumstances of the particular offence. See His Honor Numapo J’s observation at paragraph 6 and 7 in the matter of State v. Eliuda [2022] N9326.

ISSUES AND DISCUSSIONS


  1. As per the above, the only issue for my determination is as follows:
    1. What is the appropriate penalty to impose on the offender as per the circumstances surrounding the commission of the offences?
  2. I will now proceed to deal with the issue by answering the above respective checklist questions which are as follows:
  3. What is the mid-point of the prescribed penalties?

The mid-point is the mid-range of the minimum and maximum penalty of a particular offence. For the offence of domestic violence, as per FPA S. 6 (1), a court fine of K2, 500.00 and an imprisonment term of 1 year.


  1. What are the factors in Aggravation and Mitigation?
  2. What are some other consideration and their weight for or against the offender?

As was alluded to, a PSR was requested and prepared by Ms. Binjari of Community Based Corrections Vanimo Office. I have perused the contents and encountered mixed views made towards the offender. In summary the following points were made for and against the offender:


  1. The Ward Member Hon. Louis Huti mentioned that the offender is not a violent person to others in the village community, however, he on one occasion last year assaulted his sister (the victim) and his mother;
  2. The Victim stated that the offender had a history of violence towards she and their mother, because of this she fears for their safety and does not feel safe in their village when offender has such tendencies;
  1. Mrs. Bridget Deklin stated that she is the mother of the victim and the offender. She is a pensioner, receiving monthly payments from her late husband’s former employer. The defendant depends on her pension. The victim also from time to time receives support from her. She feels sorry for the offender but says he is becoming very violent when under the influence of liquor and this has led to her leaving their family home to reside with her cousin brother. She wants this court to issue some orders for him to stop consuming alcohol; and
  1. The author in her view considers the offender to be a suitable person for probation with orders that he stops consuming alcohol and to attend church regularly. She suggest the offender be supervised by his local Catholic Parish Priest and his Ward Member.

I have also been given a copy of the Medical Report dated 16th March 2022 with a one page document containing two (2) photographs of the frontal facial section of the victim with visible injuries. Both these documents were showed to the offender and tendered before me without any objections. For this purpose I hereby marked the medical report as Exhibit “A” and the photograph document as Exhibit “B”. In my view the contents of both Exhibits are consistent with the description of the assault occasioned on the victim. The assaults is for this purpose labelled as serious weighing against the offender.


Further, this court is required by law and best practice to consider and appropriately apply the policy provisions of the FPA, in particular FPA S. 3 and S. 4 which outlines the objective and purpose that all the subsequent provisions seek to promote. In summary the objective is to promote safe, stable and strong families by preventing or deterring domestic violence at all levels of society because domestic violence of all kinds is not an accepted behavior. It is my duty to ensure that persons’ rights to be free from any form of violence are to be protected by discouraging any violent behavior, getting parties to understand that violence in marriages or families is a public concern and its prevention only strengthens and promote these relationships. Further to emphasis that stopping domestic violence is every persons’ responsibility and to do so is beneficial to the whole society.


  1. What are the relevant guidelines to follow in reaching an appropriate sentence for the offender and the sentencing trend?

Sentencing guidelines within the District Courts’ jurisdiction has not really been given much emphasis unlike the National Courts. I share the views as portrayed by His Worship Kaumi (as he then was) in Police v. Marley [2011] DC2029 per paragraph 21. His Worship correctly stated in his observations that there is a need as well for cases to be published so the sentences and guidelines can be reviewed by the courts. With that he proceeded to lay out a guideline which I noted with approval as relevant for my adaptation. As per His Worship’s wisdom, I will review his guidelines and formulate one that is suitable for the matter before me. The following is what I considered to be the guidelines:


Category A: Mild Cases – those at the lower scale where no weapons involved, no alcohol involved, no destruction of properties, one off assault with no history of violence, minor assault with no injuries or mild injuries to the victim and presents of strong de facto provocation.


Penalty focus on rehabilitation through a non-custodial penalty regime aiming at getting the offender to realize his criminal behavior, be accountable for his actions and providing to him an incentive to change. Cases under this category will attract terms of probation with specific orders for marriage or anger management counselling. Minimal court fines or compensation payments may be appropriate in some instances where the circumstances of the cases warrants.


Category B: Serious Cases – those at the midscale where weapons are involved, alcohol involved, destruction of properties, repeated assaults on the victim, offender with history of violence, serious assault with one or multiple injuries to the victim and no de facto provocation.


Penalty focus on rehabilitation, deterrence, denouncement of the offender’s conduct and getting the offender to realize the harm done to the victim, the family, the community and the state. Cases under this category usually attracts a penalty regime of custodial and non-custodial sentences. This attracts an increased amount of court fine and substantial amount of compensation with a default period of up to 6 months imprisonment term. Long term probation period with strict conditions to attend counselling, no alcohol consumption, imposing of work orders, and participation in faith based activities. Issuing of Family Protection Orders to ensure offender is restrained from future offending.


Category C: Very Serious Cases – those at the upper scale where weapons are involved, alcohol involved, destruction of properties, repeated assault subjecting the victim to what can be considered as a cycle of violence, infliction of serious or permanent injuries to the person of the victim, offence committed in breach of existing Family Protection Orders or any other orders issued as per Category A & B and offence committed after serving jail time for a similar criminal conduct.


Penalty focus on deterrence in order to prevent such crime in the communities, to protect and guarantee the safety and wellbeing of the victim, the family and the community in general. Cases under this category shall attract a jail term of up to the maximum of 2 years in the first instance. Should the circumstances warrants, a court fine of up to the maximum of K5, 000.00 and compensation of an amount not exceeding the limits set by law.


Having outlined the above, it is only just to consider what type of effects offender’s action may have on the victim. Listed hereunder are some relevant points to consider:


  1. Has the victim suffered physical abuse?

Yes, it is clear from the evidence presented before me that the victim was subjected to physical abuse by the offender.


  1. Has the victim suffered verbal abuse?

Yes, it is clear from the evidence before me that the victim was subjected to verbal abuse by the offender.


  1. Has the victim suffered sexual abuse?

No, there are no evidence indicative of such from the offender on the victim. The fact that offender is the biological younger brother of the victim corroborates this.


  1. Has the victim suffered emotional abuse?

No, there are no evidence indicative of such from the offender on the victim.

  1. Has the victim suffered social abuse?

No, there are no evidence indicative of such from the offender on the victim.

  1. Has the victim suffered financial abuse?

No, there are no evidence indicative of such from the offender on the victim.


  1. Has the victim suffered technological abuse?

No, there are no evidence indicative of such from the offender on the victim.

Those answered in the affirmative will frame the type of penalty required to be imposed on the offender so as to specifically deal with the situations presently faced by the victim as a direct result of the offender’s actions. Having satisfied myself of the above it is now appropriate that I focus on what the sentencing trend might be.

I will now proceed to identify and list published cases of offenders charged with similar offences to figure out the trend of sentences over the years. The following identified cases are of relevance:

  1. Police v. Rufus [2021] DC6081, per His Worship Tanei – The offender pleaded guilty to repeatedly assaulting his wife. He pushed her to the floor and attempted to strangle her twice. He used his foot to step down hard on the victim’s neck while she was lying on the floor causing injuries to her body with heavy bleeding. He had prior criminal records of similar conducts. He was sentenced to an imprisonment term of 18 months in hard labor with deductions;
  2. Police v. Kaboanga [2021] DC5077, per His Worship Tanei – The offender pleaded guilty to assaulting his wife by punching her once on her right eyebrows with his fists after the victim approached him at his work place over some outstanding arguments they had some time ago. He was court fined K300 with a protection order issued in favor of the victim for a period of 12 months.
  1. Police v. Kaivi [2018] DC3068, per His Worship Tasikul – The offender pleaded guilty to assaulting his wife repeatedly throughout the course of two days. He used a bush knife to threaten the victim. He was court fined K200 with a default jail term of 6 months. Protection orders were also issued for the protection of his wife for a period of 12 months.

I am satisfied that the trend is more towards the use of non-custodial sentences, most preferably court fines and issuing of Family Protection Orders. Custodial sentences are reserved for repeat offenders. I note in approval this trend as relevant for my consideration.

  1. What is the head sentence for each respective offence?

I consider a head sentence of 6 months jail term to be proper, however, this will unlikely be impose as the punishment of first choice for the offender.


  1. Should the sentence be concurrent or cumulative?

Not relevant for my application.


  1. Should there be any deductions or suspension?

Yes, as I consider a non-custodial sentence appropriate for the offender.


RULING ON WHAT IS CONSIDERED TO BE AN APPROPRIATE SENTENCE


  1. As per the above, it is clear that the factors in aggravation outweigh those in mitigation. The factors in aggravation are further corroborated by the views of the victim and their mother as per the PSR. Also the medical report with the photographs weigh more towards this end. Offender’s assault on the victim is classified under Category B, that is, he assaulted the victim repeatedly by punching her on the face with his folded fist than grabbing hold of her neck and kicking her while she was lying on the floor unconscious. The victim suffered injuries to her body and it is clear from the PSR that this was not the only time he had done that to her.
  2. Given so, I am inclined to impose a court fine or compensation, to do so, it would in my view give a negative impression to the offender, making him think that he can buy his way out, thus encouraging future offending. I would lean more towards imposing a long term probation for the offender with strict conditions and issue in favor of the victim a Family Protection Order. By doing that, would get the offender to understand that domestic violence is not an accepted behavior in our communities and it is upon him to decide whether to change his ways or continue down the same path and be treated more harshly should this violent behavior persist. I am also mindful of the fact that victim suffered both physical and verbal abuse from the offender, in my view a long term probation period with conditions that the offender attend anger management counselling with his local parish priest, that he move out of the residence where his sister and mother permanently resides and issuing of Family Protection Orders would ensure victim encounter no such future abuse from the offender. Having opted not to impose court fines or issue compensation orders, working out a midpoint won’t be necessary at this stage, however, in the event of breach, one might be consider, but that is something for the future as and when such occurs.
  3. I am satisfied the above approach is in line with the sentencing trend as discussed earlier. I will therefore impose a two years’ probation period and also issue a Family Protection Order in favor of the victim against the offender for a period of two years. The FPO will commence at the end of the offenders probation period because within that period conditions present therein will protect the victim. It is only after that the victim might be exposed therefore the FPO will further protect her and reinforce to the offender what has been learnt throughout his probation period.
  4. I hereby issue the following orders to conclude this matter:

COURT ORDER:


  1. The defendant is found guilty as charged for one count of domestic violence pursuant to Section 6 (1) of the Family Protection Act;
  2. Conviction not entered with defendant placed on 2 years’ probation period to be supervised by Ms. Binjari of Community Based Corrections Office Vanimo with assistance from Hon. Louis Huti, Ward Member Lido Village and the local Catholic Parish Priest of Lido Village;
  1. The offender is required to strictly observe the following conditions during the probation period:
    1. To attend anger management counselling to be facilitated by the Parish Priest of Lido Village Catholic Church for a period of 6 weeks;
    2. Not to obtain, have in his possession his mother namely Bridget Deklin’s bank card and use that to withdraw money from her account or in any way force himself to benefit from his late father’s pension;
    3. Not to cause upon the body of the victim or directed to her person any physical assaults, threatening behavior, abusive behavior, verbal abuse including insulting and offensive words;
    4. Not to consume alcohol of all sorts within the first 6 months period of his probation. Thereafter offender is free to take alcohol but is restrained from being on the premises where victim and their mother resides or approach them anywhere whilst being intoxicated;
    5. To ensure he moves out of the residence where his mother and the victim permanently resides within 6 months from today’s date, Ward Member of Lido Village to ensure this is complied with;
    6. To attend church services regularly at Lido Village Catholic Parish; and
    7. To sign every last Friday of each month at the Community Based Corrections Office Vanimo in the presence of Ms. Binjari.
  1. Family Protection Order for a period of 2 years is issued in favor of the victim, to commence at the end of the probation period;
  2. Where it is directed for supervision, concerned supervisors are to report the outcome to Ms. Binjari in writing at the end of the respective mentioned periods;
  3. Breach proceedings to follow upon non-compliance and a prison term of no more than 6months to be considered should the breach be established; and
  4. Bail refunded.

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