DC180

PAPUA NEW GUINEA
[IN THE FAMILY COURT OF JUSTICE]

CASE NO 548 OF 8

Elsie Taru
Complainant

V

Ted Taru
First Defendant

Samar Willie
Second Defendant

Port Moresby: D. Wakikura, Magistrate
2003: March 25 April 08, 22

Adultery and Enticement Act - Breach of restraining orders - Sentencing principles in absence of penalty clause.

District Courts Act -Appropriate sentence whether a fine or imprisonment - Monetary fine under s.200 (2) is appropriate.

Statutes
District Courts Act Adultery and Enticement Act

Cases Cited 
No cases cited.

Kaluwin standing for D. Dademo appearing for the complainant. 
Koi appears for the defendant.

April 22nd 2003

REASONS FOR DECISION

D.Wakikura: I found the Second Defendant guilty on a complaint for breaching restraining orders issued on the 21st of July 1999 in the course of an adultery proceeding. The defendant was found to have breached restraining orders made by Mr. Mataio that the restraining orders remain in force until the marriage is formally resolved which was an extension of orders made by the late Mrs Mae.

The matter was adjourned after hearing submissions to today for a decision on sentence. The defendant is convicted and I will proceed on with sentencing and however the defendant is not physically present in court for allocutus to be administered. I take it that the defence counsel made submissions for leniency and mitigation and I will appropriately take that into account.

This court will basically determine what the appropriate sentence is in the case or what sentence or penalty is appropriate in the circumstances of this case where the defendant breached restraining orders.

As highlighted in my earlier judgement when finding the defendant guilty this case proceeded against the Second Defendant only as the complainant decided only to proceed with the case against the Second Defendant. It was found in that case that the First and Second Defendants have being seeing, accommodating or contacting each other during the duration of the restraining orders that prohibited them from doing so.

In this present case I have considered the submissions by both counsels in respect to sentence. Ms. Dademo for the complainant submitted that section 171 Of the District Courts Act is the relevant provision for the court to apply. The particular provision reads;

171. Warrant of commitment in other cases.

(1) Where-

(a) a conviction does not adjudge the payment of a fine, but that the defendant be imprisoned for his offence; or
(b) a Court orders the doing of an act other than the payment of a fine or sum of money or costs and directs that, in case of the defendant's neglect or refusal to do the act, he shall be imprisoned, and the defendant neglects or refuses to do the act, 

the Court or a Magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs.

(2) if, by a conviction or order referred to in Subsection (1), costs are also adjudged to be paid by the defendant to the complainant, and the defendant does not pay the costs in accordance with the terms of the conviction or order, a Magistrate, by warrant, may commit the defendant to a correctional institution or police lock-up, there to be kept according to the terms of the conviction or order, unless he sooner pays the costs.

This provision allows the court to consider imprisonment where the conviction does not adjudge the payment of a fine or in instances where a defendant fails or neglects to do an act as directed by a court. It can be invoked in cases where the defendant was already convicted in the earlier proceedings. This is a discretionary provision where a magistrate may issue a warrant of commitment for such time as the conviction directs.

Counsel for the complainant submitted the defendant failed to do the acts ordered by the court which is inclusive of the restraining orders. I was invited to consider an imprisonment of two (2) months for the defendant in an additional order of the 21st July 1999 by considering the above provision.

Mr. Koi, the counsel for the Second Defendant submitted that the legal basis for this enforcement proceeding is based on section 20 of the Adultery and Enticement Act. This provision allows for an order under the Adultery and Enticement Act to be enforced under the provisions of the District Courts Act. I quite agree with counsel as this matter was first imitated as an adultery case and these restraining orders were part of the orders under the orders for the adultery case.

Counsel suggested several sections of the District Courts Act including sections 22, 171, 200 and 277 highlighting their relevance in applying them to our case. Section 22 allows the court for the granting of either conditional or absolute relief or redress or remedy in any proceedings and section 171 is as discussed above in the complainant's submission. Section 277 is the contempt provision in the District Courts that allows for contempt within the view of the court only.

Mr. Koi went on emphatically to submit section 200 as the provision appropriate for application in this case and this provision reads:

200. Mitigation of payment by Court.

(1) Where imprisonment or a fine may be imposed by a Court under any law and there is prescribed by that law a requirement for the defendant to enter into his recognizance and to find securities for keeping the peace, or being of good behaviour, and observing some other condition, or to do any of those things, the Court may dispense with any such requirement wholly or in part.

(2) Subject to Subsection (3), where a Court, under any law, may impose a penalty for an offence punishable on summary conviction but has no power to impose a fine for that offence, it may impose a fine not exceeding K200.00, but not being such an amount as would subject the offender, in default of payment of the fine, to a term of imprisonment longer than that to which he is liable under the first-mentioned law, if it considers that the justice of the case would be met better by a fine than by imprisonment.

(3) Subsection (2) does not apply in the case of an offence for which a minimum sentence of imprisonment is prescribed.

In this particular provision the court is empowered to consider the imposition of a fine for offences punishable on summary conviction. This does not apply in a case where minimum sentence of imprisonment is prescribed by law.

Counsel for the defendant invited me to consider Sub-section (2) of the above provision when considering the appropriate sentence for the defendant. That the breach was committed in 1999 and the parties had gone about their own ways and imprisonment would agitate any further relationship and therefore a fine would be appropriate.

Having heard the submissions with the arguments from both counsels I am inclined to accept the argument that section 200 (2) is the appropriate law in this case. That to me is the law applicable in considering the suitable sentence in this matter. Without having to quote the provision again I will now proceed on with the reasoning.

In this matter the infringement is that of a restraining order imposed by a court and it is not for an offence prescribed for and punishable by a written law. In this case the nature of the case as it is more a contempt proceeding than for infringement of a written law. The type of contempt we know of in the District Court is one for acts committed in the view of the court and has a penalty prescribed. Our case is one for non-compliance of an order issued by the court with no penalty provision attached.

Besides there is no penalty clause in the retraining orders that were provided in the orders. As such I have opted to use section 200 (2) of the District Court Act, which is the basis of the sentence in this matter. I will exercise the discretion this provision to consider a monetary fine as opposed to imprisonment and the maximum fine is for a sum not exceeding K200.00.

I note in this proceeding that the Second Defendant is just one of the defendants apart from the First Defendant and both defendants were parties both to the adultery and this breach case as well. It took two people to commit adultery and it also took two people to commit the breach of which both were bound. Given this scenario it would be unfair in the circumstances to excessively punish one party while the other party is very much free.

I will now exercise some leniency in ordering that the defendant be fined a reduced monetary fine and the defendant is now convicted and fined K100.00 in default one (1) month imprisonment in light labour. The defendant is given seven (7) days from today to pay the fine.

Orders accordingly.

Public Solicitors: Complainant
Yapao and Peri Lawyers: Defendant