DC5081

PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 49, 50 & 22 of 2021

BETWEEN

POLICE
(Informant)

AND

KENNETH HOWIGO
(Defendant)

Vanimo: B. Fehi
         2021: 17th March

CRIMINAL SUMMARY: Threatening Words pursuant to Section 7 (b) Summary Offences Act – Destroying Property pursuant to Section 47 (2) Summary Offence Act – Domestic Violence pursuant to Section 6 of the Family Protection Act – Plea of guilty of multiple charges – Appropriate Penalties/Sentences – Concurrent/Cumulative sentences – Totality Principle – Custodial or Non-custodial forms of sentences

CRIMINAL PRACTICE AND PROCEDURE: Sentencing approach - Whether Pre-Sentenced Report or Victim Impact Statement Court Documents – Weight of consideration towards First Time Offender Status – Weight of Consideration towards Offenders family concerns.

Cases cited:

•	Police v. Meut [2009] DC934;
•	The State v. Vincent Fong [2016] N6418;
•	State v. Kamban Mawi (2002) N2246;
•	State v. Kaivi [2007] DC 557;
•	Police v. Lapasuma [2003] DC313;
•	State v. Korin Kaivi [2018] DC 3068;
•	Belas v. Magara [2018] DC 3069;
•	Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205;
•	Public Prosecutor v. Kema & Others [1985] PNGLR 85;
•	State v. Sagasog [2011] N4471; and
•	The State v. Kangai [1987] PNGLR 320. 

Legislation:

•	Criminal Code Act;
•	Summary Offences (Amended Penalty Provisions) Act 2018;
•	Summary Offences Act; and 
•	Family Protection Act

DECISION ON SENTENCE

17th March 2021

1.	FEHI. B DCM: Defendant stands charged before me for one count of Threatening Words pursuant to Section 7 (b) of the Summary Offences Act, one count of Damaging Property pursuant to Section 47 (2) of the Summary Offences Act and one count of Domestic Violence pursuant to Section 6 (1) of the Family Protection Act. He pleaded guilty to all charges and Guilty Pleas entered respectively. This matter is now before me for sentencing.

RECORD OF PROCEEDINGS

2.	Sgt. Musai for the prosecution presented 3 Police Information before me bearing Summary File Numbers: 49/21, 50/21 and 51/21 on 05th February 2021. Offender was arraigned based on these Informations and admitted to all the charges contained therein. Brief facts covering all charges read to offender by Sgt. Musai and having heard all the relevant facts raised no objections to the contents.

3.	Sgt. Musai proceeded to tender the offender’s antecedent report and I note, he is a first time offender, he is married to the victim with two (2) children, he is 34 years old and is employed as a Correctional Institutional Services (thereinafter referred to as CIS) personal.

4.	Offender given an opportunity to speak through allocutus in which a request for Pre-Sentence Report (thereinafter referred to as PSR) became relevant and I consider it necessary to issue directions for its compilation and filing. I also gave directions for Victim Impact Statement (thereinafter referred to as the VIS) to be prepared and file supplementary to the PSR. 

5.	The Community Based Corrections (thereinafter referred to as CBC) Office in Vanimo furnished as requested PSR and VIS. I have had the benefit of reading both documents and commend Ms. Binjari for the well documented reports. 

6.	As per the foregoing, matter was set down for sentencing and adjourned to 17th March 2021. This is now my full decision on sentence.

POLICE SUMMARY OF FACTS 

7.	On Sunday 24th January 2021 at about 3:30pm the offender was at his family residence at Transmitter Settlement, Vanimo Urban, West Sepik Province. He had with him a piece of log, while waiting for the victim to return home. Upon victim’s arrival, she saw offender sitting under their house, and in seeing her the offender issued the following threats, “nau bai het blong yu buruk na sos yu ranawe go long wok bai mi kam na paitim yu long hap na brukim het blon yu antap long masin”. In fear, victim fled to and sought refuge at the CIS Provincial Commander’s House.

8.	Upon her return the next morning, she discovered that her bilum and notebook were missing only to find both burnt to ashes by the offender. Thereafter she attended to the Police Station in Vanimo Town, reported the matter and proceeded on to CIS Headquarters at Vanimo Point. Offender saw her heading to their Administration Office and approached her saying, “yu klia na go, yu painim wanem sumtin kam lon hia”.  Victim proceeded to and sat on the verandah of the Administration Office, without her knowing, the offender approached and started assaulting her.

9.	He kicked her on the face with his safety boots, he again kicked her on her ribs which caused her to fall on the floor. Offender’s bosses intervened and stopped him from further assaulting the victim. He resisted and pulled victim’s ‘meri blouse’ and broke it, insisting by saying, “em pesenel problem blong mi long haus, ino sumtin blong kisim kam lon hia”. Thereafter Provincial Police Commander was called and both were taken to the Police Station for offender to be dealt with.

THE LAW AND SENTENCING APPROACH

10. 	The offender pleaded guilty to the following offences:

a)	Provoking a breach of the Peace by using threatening words towards the victim, a charge pursuant to Section 7 (b) of the Summary Offences Act (Amended Penalty Provision Section 6), which states:

7. Provoking A Breach of the Peace.

	A person who – 
	
	(a)	uses threatening, abusive or insulting behavior; or
	
	(b)	uses threatening, abusive or insulting words; or………….(extension not 			relevant)

6. Provoking a Breach of the Peace (Amendment of Section 7)

	Section 7 of the Principle Act is amended by repealing the penalty provision and 	replacing it with the following:

	“Penalty	:	A fine not exceeding K3, 000.00 or imprisonment for a 					term not exceeding two years.”

(b)	Damaging properties of the victim pursuant to Section 47 (2) of the Summary Offences Act (Amended penalty provision Section 46), which states:

	47. Damaging Property.

		(2)	A person who, without reasonable excuse, destroys, damages or injures 			any property belonging to another person is guilty of an offence.

	46. Damaging Property (Amendment of Section 47)

		Section 47 of the Principal Act is amended by repealing the penalty provision and 	replacing it with the following:

		“Penalty	:	A fine not exceeding K4, 000.00 or imprisonment for a 					term not exceeding two (2) years.”

(c)	Offender physically assaulted his wife the victim, constituting an act of Domestic Violence, an offence pursuant to Section 6 (1) of the Family Protection Act, which states:

	6. Domestic Violence Offence.

		(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.

11.		For offences charged pursuant to the Summary Offences Act, I note on record that I will rely on and apply the Amended Penalty Provisions as per the Summary Offences (Amendment) Act 2018.

12.	The National Court in the exercise of its discretion under Section 19 of the Criminal Code Act has over the years suggested and used sentencing guidelines. The higher Courts through this method layout factors a sentencing judge should take into account when deciding on an appropriate sentence. It is a commonly accepted view that sentencing is not a matter of mathematics or precise science but logic and common sense and what is considered fair and reasonable in a given set of circumstances. Using the guidelines, the sentencing authority identify a penalty range, from this an appropriate sentence is reached. The District Court, however, is a creature of legislation and is confined to the precincts of the District Courts Act and other enabling legislation. In the exercise of my summary criminal jurisdiction, Summary Offences Act is the creator of my power and I must operate within its provisions. In this matter I am also required to comply with provisions of the Family Protection Act.

13.	I agree ‘ad idem’ with the higher courts position on sentencing but will not strictly apply their guidelines, the reason being theirs is most relevant to the wider discretion they exercised to determine an appropriate sentence from a huge gap between the maximum and minimum prescribe penalties. In the District Court, the intention of the legislature can be clearly inferred from the penalty provisions of each respective offence. For instance, it is mandatory for the District Court to impose a jail term of no more than two (2) years, there is no discretion to extend beyond this range.

14.	Even with this limitation, I must as a matter of best practice, employ the higher courts approach applying it in a way compatible with practices widely applied before the District Courts. This in my view is important to maintain consistency in sentencing on par with my Sister and Brother Magistrates. I borrow from and apply the position taken by His Worship Kaumi M. (as he the than was) in the case of Police v. Meut [2009] DC934, to emphasis this point. Paragraphs 23 and 24 are of relevance:

•	Paragraph 23	:	“With the due respect, none of the published judgments up to 					now in our jurisdiction provide a guideline as to what are 					appropriate considerations to be taken on board in arriving at a 					sentence for this type of offence and there is need for 						guidelines for purposes of uniformity and consistency of 					sentence.”
•	Paragraph 24	:	“I am therefore inclined to go higher for guidance and 						analogy(emphasis mine) and in doing so adopt as a matter of 					practice, His Honor Kandakasi. J’s guidelines on sentencing in St 				v Michael Kamban Mani (5) that:-
				
				a. The maximum prescribed penalty should not be imposed but 				should be reserved for the worst type of offence under 						consideration.

				b. Guilty pleas and the offender being a first time offender and 				the existence of “such good” factors operate in the offender’s 					mitigation and sentence lower than the prescribed maximum 					may be imposed.

				c. The prevalence or otherwise of the offence which could be 					reflective of the ability of the previous sentence to either deter 					or not to deter would be offenders.

				d. The kind of sentences that one being imposed in similar but 					less serious offences should be considered to ensure that 					sentences in a higher or serious offense is not lower than these 				imposed for the less serious offences.”(emphasis mine)

15.	As such, it is appropriate to note in general the style and form of all penalty provisions under the respective legislations enforceable before the District Courts. I must say, this task is simplified through the clear limitations outlined by the respective wordings. Categorically speaking, two forms of available penalties are prescribed, one being non-custodial and the other custodial. In my opinion the following make up the respective forms:

•	Non- Custodial Penalties.

i)	Imposition of Court Fines;
ii)	Placing of offender on Good Behavior Bond;
iii)	Placing of offender on Probation with specific or general conditions; and 
iv)	Cautioning and Discharge of offenders.

•	Custodial Penalties

i)	Imposing of Mandatory Jail Terms of no more than 2 years; and 
ii)	Imposing of Discretionary Jail Terms (jail terms upon defaults or were the 	circumstances of a particular case warrants as oppose to non-custodial penalties) of no 	more than 2 years.

16.	Therefore, it is my humble view that in the process of sentencing I must firstly consider the purpose I intend to achieve by imposing such a penalty on the offender through handing down his sentence, for instance, Retribution, Deterrence, Restraint, or Rehabilitation. Secondly, I must apply to the offender’s case the position highlighted above per Kaumi M. and identify which components of the whole circumstances of the case fall in favor of either a non-custodial or custodial penalty form. Thirdly but not the least, I must consult prior decisions of my Colleagues Magistrate on their sentences of offenders whom were charged with same offences under similar circumstances, in order to be on par with the current trend. By applying this approach I hope to achieve consistency in sentencing you and avoid delivering one that is too remote and out of context with the majority’s intention.

ANTECEDENT        

17.	Sgt. Musai tendered before me the offender’s brief background information. Accordingly, the offender Kenneth Howigo is 34 years old, he originates from Wautogik village, Wewak District, East Sepik Province. He is married with two (2) children and is employed as a CIS Personnel. Ms. Binjari expounded on that through the PSR dated 11th February 2021. I note that, the victim is the offender’s wife and goes by her full name Sharon Matura Howigo. Their first born son is 13 years old and is currently doing Grade 6 at Damili Primary School. Their second child is 4 years old. The offender earns a fortnightly salary of K1000, with K500 as disposable income.

18.	The prosecution submitted that offender has no prior conviction, however, Ms. Binjari stated otherwise. As per her findings the offender was convicted for assaulting his wife in 2013 and was placed on probation with orders to do community work. He was also convicted just recently for acting in a threatening manner towards a fellow CIS colleague and was ordered to pay compensation.

19. Given this predicament, which information should I place emphasis on, as both in my view, originated from genuine sources? I resort to case law for direction and my search brings me to concur with His Honor Anis J’s observation in the case of The State v. Vincent Fong [2016] N6418. This was what His Honor stated:

•	Paragraph 12:	“The Court must be careful not to fall into the trap of considering and applying facts or findings of a pre-sentence report to either increase or decrease a sentence, or use that as a basis or reason to impose or call for a deterrent sentence as if the pre-sentence report itself consists of evidence of facts before the Court. Pursuant to Section 13 (2) of the Probation Act, a pre-sentence report is only meant to assist the Court determine the most suitable method of dealing with a person convicted of an offence. It is not a public record or document like normal Court document (Section 25 (1) of the Probation Act). The information derived therein is not similar like real evidence……….. (extension not relevant)…..” (emphasis mine)

20.	As such, I will note on record and accept as part of the antecedent that offender is a first time offender with no prior records of previous conviction. The PSR is purposely to assist me determine the most suitable method to effectively deal with the offender and serves no other purpose other than that. On the other hand, the Police Information and the Brief Facts are Court documents, contents of which adducible as evidence. In your case, the evidence provided by the police confirms to me that you have no prior convictions. 

ALLOCUTUS   

21.	The offender has made no attempts to give reasons before me stating why I should consider a lenient sentence in his favor. It is rather odd to think of it, a person like you, in your nature of work and being a disciplined officer, you fail to understand the importance of this opportunity and at lease communicate your thoughts on what you intend to do going forward to be a changed person. This I must emphasis to you starts with showing of remorse and I hope you understand this.

DEFENCE SUBMISSION 

22.	No address on sentence by the offender.

PROSECUTION SUBMISSION  

23.	No address on sentence by the Sgt Musai.

ISSUES

A.	What is the appropriate sentence for the offender for each respective charge?

B.	Should the sentences be served cumulatively or concurrently and what is the appropriate final sentence after applying the totality Principle?

C.	Which form of sentence is appropriate under the circumstances, custodial or non-custodial? 

24.	I will now proceed to deal with the respective issues, bearing in mind, the provisions of the relevant legislations and the sentencing approach, as discussed.

A.	WHAT IS THE APPROPRIATE SENTENCE FOR THE OFFENDER FOR EACH RESPECTIVE CHARGE?

25.	At this juncture, I will lay out the respective factors in mitigation and aggravation for the offender. The following make up those in Mitigation:

•	Early guilty pleas on all three (3) charges;
•	Offender has no prior records of conviction;
•	Value of the properties destroyed of no substantial amount;
•	Apart from his other siblings, he is the only one (1) employed, currently looking after his mother and sick father, also provides for his extended family;
•	No weapons used in his assault on the victim; and
•	Victim suffered no serious injuries (No medical report provided); and
•	Offender willing to compensate victim.

26.	The position on factors relating to concerns about your family’s possible hardship in the event of your incarceration is well settled in our jurisdiction. It is not a factor to be considered in your favor towards a lenient sentence. I must caution myself of the apparent dangers associated with accepting on face value information provided by the prosecution on your status as a first time offender. I agree with and apply the position taken by His Honor Kandakasi J (as he then was), in the case of State v. Kamban Mawi (2002) N2246. His Honor stated:

      “In situations like your cases, I have had little or no regards to a plea of being first 		time offenders. An example of that is my judgment in the State v. Kenny Irowen 	(Unreported judgement delivered on 24/05/02) N2239. There the prisoner, did not 	have any prior convictions but did have history of beating up his wife. I therefore had 	no or little regard to him being a first time offender (emphasis mine). I note other 	judges have done likewise, an example of which is my brother Justice Jalina’s judgment 	in the State v. Amos Kiap N2452.” 

27.	This position is not foreign to sentencing before the District Courts, Kaumi M. (as he then was) applied this in refusing to accept the nil prior conviction status of the offender in the case of Police v. Karoiwe DC945 at paragraph 34 of his judgment. Accordingly, I will not give any wait to your status as a first time offender, having observed your demeanor in court and the fact that you gave no serious thought to speaking on your own behalf through allocutus is enough to convince me. The only reason your status appears as it is, may be the result of oversight or that any previous incidents were not reported by the victim to the police. As such, it is also not a factor to be considered in your favor towards a lenient sentence.

27.	In the offender’s aggravation, the following factors fall within this category:
   
•	Offence committed within a domestic setting;
•	Offence of threatening behavior and damaging property committed without any reasons whatsoever;
•	Offence of this nature prevalent in Vanimo and through the country;
•	Offender employed as a CIS Personnel and regarded as a disciplined officer but displaced conduct contrary to and will bring disrepute to his profession;
•	No remorse shown by the offender;
•	Offender assaulted victim multiple times all over her body;
•	Assault committed within the vicinity of a prison facility at his place of employment;
•	No respect shown to higher ranking officers direction;

28.	I must now weigh the above factors, to do this, it is necessary for me to make comparisons with similar factors present in prior dealt with cases before the District Courts and how my colleague Magistrates conduct this exercise in determining an appropriate sentence. I wish to achieve this through the introduction of sub-issues of which the following suits the present circumstances:

i.	What is the sentencing trend for offences of threatening behavior, committed in similar circumstances as that of the offender?

•	Police v. Meut [2009] DC934 (Kaumi M. (as he then was)).

The offender at all material times leading up to the commission of the offence was intoxicated and in the company of others. In that state he approached his brother in-law and started accusing him with allegations concerning his wife’s suspected illicit conducts. The victim his wife, tried to intervene only to be showered with threatening words. The offender threatened to kill victim and her brother and burn her brother’s house down. 

The offender has prior convictions for offences committed on his wife the victim where he was given a non-custodial sentencing term. He pleaded guilty and asked for a lenient sentence for this offence. Taking into consideration all the factors, His Worship sentenced defended to 6 months respectively for the two (2) offences and ordered him to serve his sentences cumulative of each other, that is, a total of 12months in hard labor. 

•	State v. Kaivi [2007] DC 557 (His Worship J. Singomat).

The offender at all material times of committing the offence used abusive, insulting and threatening words and behavior towards the victim who was at the time of the offence, his brother’s wife. He was armed with a bush knife and caused the victims to run off in different direction into bush in the cover of darkness. 

His Worship took into consideration the fact that offender pleaded guilty to the charge, he was a first time offender and the existence of outstanding grievances between him and his brother the victim’s husband of which the victim’s husband was the provoker. Offender was sentenced to 5 months imprisonment term. The whole term was suspended and he was ordered to pay court fine. Also he was placed on and required to observe conditions to keep the peace and be of Good Behavior Bond.

The above two (2) are the only ones I was able to locate which bear some resemblance to your case and I will use them to identify a starting point necessary to work out your final sentence. I consider factors in your aggravation slightly outweigh those in your mitigation. You threatened your wife the victim without any form of provocation. Unlike Police v. Meut (supra), you were not intoxicated and you did not threaten to kill your wife and you were not armed with a sharp object as was the case in State v. Kaivi (supra). Therefore, I consider a starting point of 3 months imprisonment term to be appropriate for you, alternatively, a Court Fine of no more than K200.

 ii)	What is the sentencing trend for offences of destroying properties, committed in similar circumstances as that of the offender? 

•	Police v. Lapasuma [2003] DC313 (Appa - PM)

The offenders at all material times, failed to comply with an existing preventive order issued under the Land Dispute Settlement Act in relation to a pending land dispute of which they are parties to. They damaged a newly built house the property of the victim. They all pleaded guilty to the offence of destroying property and were sentenced respectively to 3 months imprisonment term. All suspended and offenders placed on 3 months Good Behavior Bond. They were also ordered to pay K200 each as compensation to the victim.

This is the only case I am able to locate, although not similar in circumstances to your case but bear some similarities relevant for my consideration. I consider factors in your aggravation slightly outweigh those in your mitigation. Unlike Police v. Lapasuma (supra), there were no reasons for your actions towards the victim at the material time and date. Therefore, I consider a starting point of 3 months imprisonment term to be appropriate for you, alternately a court fine of no more than K100. Compensation in my view is not necessary under the circumstances.

iii)	What is the sentencing trend for offences of domestic violence, committed in similar circumstances as that of the offender?

•	State v. Korin Kaivi [2018] DC 3068 (B. Tasikul).

The offender at all material times was the husband of the victim, she was his 02nd wife. There was a huge age difference between the victim and the offender. He committed the assault on the victim after he was told and became suspicious of the victim talking to another man on her return from the store. He continued to assault the victim through to the next day and upon her escape to their neighbors he pursued after her and threatened to cut her with a bush knife. Taking into consideration the time offender spent in custody and his early guilty plea, he was ordered to pay K200 court fine with a default jail term of 6 months. Also he was ordered to pay K200 as compensation to the victim with a default jail term of 6 months. Further, Protection Orders was also issued to protect the victim from future actions of the offender.

•	Belas v. Magara [2018] DC 3069 (B. Tasikul).

The offender assaulted his wife several times by punching her on her head with his folded fists several times. He committed the offence after he found out about his wife’s adulterous relationship with another man. He was angry because his children were also aware of their mother’s promiscuity and reacted by assaulting the victim. His worship placed the offender on 6 months Good Behavior Bond with a surety of K200. 

The above two (2) are the only ones I was able to locate which bear some resemblance to your case and I will use them to identify a starting point necessary to work out your final sentence. I consider factors in your aggravation slightly outweigh those in your mitigation. You assaulted your wife in front of your superiors and in the vicinity of a jail facility. Also you repeatedly assaulted your wife even after attempts were made by your bosses to restrain you. However, you did not continue with the assault through to the next day, you had no weapons on you and you did go after the victim with intention to assault her, it was unfortunate for her to be there at your place of work that to some extent placed her in a situation that provoked your actions. I consider a starting point of 6 months imprisonment term to be appropriate under the circumstances. 

29.	I must say, it is really a difficult task to identify sentencing trend for respective offences before the District Courts. We at the District Courts are constantly faced with difficult situations limiting our attempts to ensure consistencies in our decisions.  As such, I am limited to the above case laws for guidance in identifying the above appropriate sentences for you in so far as the respective charges demand. 

B.	SHOULD THE SENTENCES BE SERVED CUMULATIVELY OR CONCURRENTLY AND WHAT IS THE APPROPRATE FINAL SENTENCE AFTER APPLYING THE TOTALITY PRINCIPLE?

30.	Your multiple guilty pleas impose upon me an obligation by law to decide on the best way for you to serve your respective sentences as alluded to beforehand. That is, either you serve all the sentences at the same time as each other or one after the other, referred to in practice as concurrent and cumulative (consecutive) sentences. Concurrent sentence is applicable were two or more offences are committed in the course of a single transaction. Cumulative sentence is applicable where the offences are so different in character, or in relation to different victims. Reference is made to the following case authorities; Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 and Public Prosecutor v. Kema & Others [1985] PNGLR 85. 

31.	The above process is not complete without considering and giving effect to the totality principle. This means, I must seek to ensure that the total sentence reflects all the relevant offending behavior and should therefore be just and proportionate. His Honor Cannings J. gave the following explanation on how this process works in the State v. Sagasog [2011] N4471, where he stated in paragraph 19 of his judgment: 

19. “Under the totality principle the court looks at the total sentence that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behavior involved. The court needs to guard against imposing crushing sentences, those that are over the tip or manifestly excessive (emphasis mine)…… (extension not relevant)” 

32.	In your case, you committed the offences of threatening words and destroying of properties in the course of a single transaction. Despite no clear description provided through the Police Brief, (facts regarding your action towards this effect) it is reasonable under the circumstances to infer both actions took place within the same transaction. Therefore, concurrent sentence is most relevant. 

33.	You committed the offence of domestic violence on the next day 25th January 2021, therefore, sentence for this offence will be served cumulative to the concurrent sentences of your two other offences. Since I consider your starting points to be 3 months imprisonment term each for the offences of threatening words and destroying properties, your concurrent sentence would be a term of three (3) months imprisonment. This will be served cumulative to the 6 months imprisonment term (considered as a starting point and now confirmed) for the offence of domestic violence, giving you a total imprisonment term of nine (9) months.

34. A term of nine (9) months in my view, conforms with and met the requirements impose through the totality principle. It is a reasonable term reflective of the totality of the criminal behavior involved, it is, just and proportionate. I must say it was because of your actions on the 24th January 2021, your wife took refuge at your commander’s house. It follows from that, that your children will also be affected by your actions (a reasonable inference). Also you acted contrary to your status as a CIS Personnel. All this justified the sentence of nine (9) months.

C.	WHICH FORM OF SENTENCE IS APPROPRIATE UNDER THE CIRCUMSTANCES, CUSTODIAL OR NON 	CUSTODIAL?       

35.	I must now decide on whether to impose a custodial sentence, that is, imprisonment term of nine (9) months or Non-custodial through suspension and imposing court fines, Good Behavior Bond or Probation. The following sub issues are relevant for my final determination:

(a)	What does the Pre-Sentence Report say about the offender’s character?

	Both interviewees gave a mixed view of the offender. Generally they agree that offender is a good person with an accepted personality. However, both said he has a problem with his behavior when he is under the influence of alcohol. The interviewer, reported the offender to be a person who has no respect to authorities. She gave in support details of offender’s negative behavior displayed in her presents at their residence when she was there to interview the victim. She concluded that the offender has not shown remorse and he is not a person suitable for probation as she puts it, the offender blames the victim for his actions because she reported him to his Commanding Officer.

(b)	What does the Victim Impact Statement say about victim’s view of the offender?

	The interviewee (victim) confirms offender to be a violent person responsible for inflicting both physical and emotional harm on her. She has no medical report of her injuries because the hospital is located on the way to offender’s place of employment and she is always afraid of going there. She suffered from psychological harm due to offender’s failures of meeting his responsibilities as a father, his habit of alcohol abuse and promiscuous behaviors. She feels vulnerable and fears for her life when offender becomes intoxicated because all her families are in Madang with not network of support here in Vanimo. 
(c)	What other relevant considerations should I pay attention to apart from the PSR and VIS?

	The objectives of the Family Protection Act and its underlying principles bear relevance to this case and it is just for me to give effect to these statements. In no way am I downplaying the status of the other two (2) offences per Summary Offences Act, it is only to avoid imposing a sentence peculiar to circumstances of the case. Section 3 of the Family Protection Act impose upon me the duty inter alia to promote safe, stable and strong families and ensure that there is effective legal protection for the victims of domestic violence. Section 4 of the Family Protection Act requires me to be guided by and observed the underlying principles that violence is often a learned behavior which can be unlearned, that violence in marriage is not a private matter but a social problem of public concern and that stopping violence will strengthen marriages and improve family life. 

36.	In view of the above and taking into consideration the different purposes of sentencing, Rehabilitation stands out to best suit the circumstances of your case. Where a suspension would promote personal deterrence or rehabilitation is not an exercise in leniency but an order made in the community interest, in your case, your family’s interest. Reference is made to The State v. Kangai [1987] PNGLR 320. 

37.	With respect I will not give effect to the recommendations of Ms. Binjari. It is undeniable that the offender has quite a number of character flaws, however, this should not be the basis upon which a jail term automatically apply. To do so will not do justice under the circumstances. What the offender needs is not a jail term rather help in controlling his anger management issues, his alcohol abuse and marriage shortcomings. These are what I view negative behavioral traits that needed addressing. A jail term would in my view provoke negative reaction and does nothing to promote his family’s interest, more so to protect the victim from future such incidence. I note and in no way ignore the sufferings victim had to endure prior to this case coming before me, however, I must not emotionally discharged my function rather rely on standard practice requirements and lawful assessment criterion. As such, a non-custodial sentence is considered appropriate for your cases.   

38.	Therefore, the 3 months imprisonment term will be suspended and replaced with a one off court fine of K200 (concurrent) for both offences of threatening words and destroying properties, in default 3 months imprisonment. The 6 months imprisonment term for the offence of domestic violence will be suspended, in its place, 1 year Probation Period imposed and you will be required to attend counseling with conditions. Also, Protection Order for a period of 2 years is issued to your wife the victim.

RULING ON SENTENCE

39.	In reaching this juncture, I note and apply to some extent the National Court approach to sentencing, one that is compatible with the general practice across the District Courts. I accept the status that District Courts are creatures of Legislation and our jurisdiction is confined to the precincts of respective legislations. In this matter I rely on the Summary Offences Act and the Family Protection Act. I accept generally that sentences can be imposed in two forms, that is, custodial and non-custodial sentences.

40.	I accept that you have no prior convictions, however, I gave your status no weight in reaching the final appropriate sentence. I note also, that you have shown no remorse through allocutus and your demeanor in court confirms that you have an attitude problem.

41.	I considered all the factors in your mitigation and aggravation, and found your aggravation slightly outweigh your mitigation. That is, you threatened the victim and destroyed her properties without provocation.  Also, your actions cause the victim to sought refuge outside of your family home directly affecting your children. Further, you assaulted the victim at your work place in front of your superiors. 

42.	I must say, there is not much case law reported on similar offences. I was limited through this but managed to identify a couple which in my humble view gave broad sentences of which I’ve identified respective sentencing trend appropriate for your case. I consider appropriate for you a sentence of 3 months imprisonment term respectively for the offence of threatening words and destroying properties. As for the offence of domestic violence I consider for you a sentence of 6 months imprisonment. I made the sentences of 3 months each concurrent to each other and cumulative to the sentence of 6 months leaving you with a total of 9 months imprisonment term.

43.	I gave prominence to domestic factors in your case, that is, I placed more emphasis in aspect of your case predominately centered on your domestic marital interaction with your wife. As such, I did not place emphasis on the recommendations put forth through the PSR. I also noted and factored into my decision the prior sufferings the victim had to endure at your hands. I considered it necessary to do so, to ensure I give effect to the objectives and the underlying principle of the Family Protection Act. This in no way lessens the status of the other two offences you’ve pleaded guilty to. 

44.	I find you to be a person with character flaws, you have issues with your anger management, alcohol abuse, promiscuity and understanding your responsibilities as the head of your family. To do justice under the circumstances, I must focus my sentencing powers to ensure you change these negative behaviors for yours, your wife, children, siblings and your parents good. I must avoid using my powers on emotional charged basis but rather in view of standard practice requirements and lawful assessment criterion. As such, it is appropriate in your case for your to undergo counseling giving you an opportunity to change for the better and protective orders for your wife to deter your from future assaulting your wife. 

44.	I must warn you, issuing of Protection Orders Under the Family Protection Act carries with it strong penalties, should you breach this orders, it is most likely that you will be sentenced to a jail term of 6 months. That in itself will be enough to get you dismissed from your employment.

45.	I will not enter conviction in this matter, bearing in mind the effect it would have on your future with CIS through invoking the available Disciplinary Processes. I encourage you to participate meaningfully and ensure full compliance to my orders, as it will only promote a positive standing within your family, community and work environment.   

45.	Therefore, you are hereby sentenced to a total of 9 months imprisonment term, wholly suspended and I order you to pay Court Fine of K200 within two (2) weeks from today’s date in default 3 months imprisonment. Also you are placed on 6 months’ Probation, with condition that you attend 3 weeks of anger management and alcohol abuse counseling, further 4 weeks of marriage counseling of which the first two (2) weeks you will attend alone and the remaining two weeks together with your wife. Protection Order is hereby issued pursuant to Section 16 (1) (a) & (b) of the Family Protection Act and extends for a period of 1 year. As per the Protection Order, you are ordered not to physically assault the victim, issue verbal threat or insult towards her. Further, Ms. Binjari is requested to assist organize for the counseling sessions so offender could attend. Offender is required to sign once every week on a date to be agreed. Breach proceedings to commence upon failure to comply with the aforesaid conditions and orders. District Court Clerk Vanimo is to issue Protection Order in the relevant form to the victim for her record and to the offender for his compliance. Bail on own recognizance is now discharged.  

46.	This concludes this matter.