|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
N8373
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 622 OF 2014 (CC3)
BETWEEN
STUART WILLIAM CONWAY
Plaintiff
AND
CHARLENE SUNITA SAMUEL
Defendant
Waigani: Makail, J
2020: 18th May & 17th June
CONTEMPT OF COURT – Sentence – Contempt of court orders arising from access right to children – Father of children refused access to children by wife – Mitigating factors and aggravating factors considered – First offender – Remorseful – Responsible for daily upkeep of children – Wilful intent to disobey order – Denial of access to children – National Court Rules – Order 14, rule 49
CONTEMPT OF COURT – Sentence – Multiple offences of contempt – Three offences of breach of court order – One offence of scandalising the Court – Sentencing discretion – Principles of sentencing – No prescribed maximum penalty for contempt – Term of imprisonment – Maximum penalty reserved for worst case – National Court Rules – Order 14, rule 49
CONTEMPT OF COURT – Sentence – Prescribed forms of punishment – Fine – Imprisonment – National Court Rules – Order 14, rule 49
CONTEMPT OF COURT – Sentence – Punishment for contempt – Fine of K500.00 imposed for each breach of court order – Term of imprisonment of one month imposed scandalising the Court – Term of imprisonment wholly suspended with conditions – National Court Rules – Order 14, rule 49
Cases Cited:
Papua New Guinea Cases
Stuart Conway v. Charlene Sunita Samuel (2020) N8299
Christine Gawi, CEO Modilon General Hospital v. Elizabeth Mandus Wukawa & The State (2016) SC1478
Sr Dianne Liriope v. Dr Jethro Usuruo (2009) N3931
Paul Gend v. Joe Mangre (2019) N8090
Bank of South Pacific Limited v. Anton Sekum (2011) N4588
Overseas cases
Vaysman v. Deckers Outdoor Corporation Inc. [2011] FCAFC 17; [2011] 276 ALR 596
Counsel:
Mr. S. Gor, for Plaintiff
Ms. C. Copland, for Defendant
SENTENCE FOR CONTEMPT
17th June, 2020
1. MAKAIL, J: Ms Charlene Sunita Samuel, you were found guilty of four counts of contempt of Court after a trial. The full reasons for judgment may be found in Stuart Conway v. Charlene Sunita Samuel (2020) N8299.
Offences – Contempt
2.1. Refusal of access to your husband to collect the children on Saturday 15th November 2014 contrary to the Court order of 4th November 2014.
2.2. Refusal of access to your husband to collect the children on Sunday 14th December 2014 contrary to the Court order of 17th November 2014.
2.3. Scandalising the Court by writing a letter to the Director of Child Welfare Services dated 21st November 2016 complaining about the judge being biased and favoured your husband because he was a former work colleague of your husband’s lawyer.
2.4. Failure to pay your husband’s half share of the proceeds of sale of the Malaysian property contrary to the consent order of 19th (20th) February 2015.
Allocutus
3. You were given an opportunity to express your views on the kind of sentence to be passed on you. You apologised and said that you did not intend to breach the orders of the Court. You realised that what you did was wrong and you are truly sorry for that.
Personal Details
4. You are 39 years old and a mother of two children aged 9 years and 8 years. You are separated from your husband and a major care-giver of the children. The children are home-schooled and rely on you entirely for their schooling. Your only means of income at present is K2,000.00 maintenance per fortnight provided by your husband.
5. Your lawyer refers to your affidavit filed on 15th May 2020 in support of your plea for leniency. In addition to your explanation as to why you breached the Court orders, you annexed a number of character references from your family members and close friends in PNG and Australia to support your plea for leniency. I make these observations.
6. Your mother and your children’s grandmother had provided a character reference for you. Giving her the benefit of doubt that she is not biased towards you, I read that you are a committed parent to your children and made sure that your children are loved even though their father is not with them.
7. You moved in with your parents in 2014 with your children after you and your husband separated. Your parents have supported you and your children up to the present and made sure that they were brought with Christian family values. You are loyal and faithful to those you love. You provided food donations and work placements to others. You put others first than yourself. You are also passionate about educating children in PNG.
8. Otherwise, much of what your mother had written is about her grandchildren and your ability to care and raise them up which is
secondary to the issue of your propensity to reoffend.
9. Your brother also provided a character reference for you. Again giving him the benefit of doubt that he is not biased towards
you, I read that he is close to your children. You are a very good mother to your children but tough and fair. They are fond of
you.
10. Otherwise, again your brother’s observation that the Court’s decision did not help mend the children’s strained relationship with their father and being unfair to them is irrelevant to the issue of your propensity to reoffend.
11. Your close friends Peter and Steph Caston of 14 Martyr Street Goulburn, 2580 NSW, Australia once lived and worked in Port Moresby and came to know you well as a friend. In Peter’s statement, I read that he always found you to be an honest and a pleasant person. You are devoted to your children and family. If they have a problem or needed assistance, you would help anytime and vice versa. That is your nature.
12. Other than this, his statement that he and his wife witnessed on one occasion at the Yacht Club the children’s reluctance to go with their father is irrelevant to your propensity to reoffend and is disregarded.
13. Benjamin Burgess of 1/5 Illawong Street, Chevron Island, Queensland, Australia also provided a character reference for you. He is a close friend of yours. He drops by on occasions for a chat when he is travelling to and from work at Kokoda Trail Hotel. At times, he stays for dinner. The children are fond of him.
14. I read that according to him, the children are fed very well and quite fond of your cooking. You have created a beautiful environment for the children with the support of your parents. Otherwise, his statement about the children’s display of reluctance to go with their father is irrelevant to your propensity to reoffend.
15. Sean Kirkpatrick of PNG Air and an airline pilot provided a character reference for you. I read that over the last three years, your children and his daughter go to the same school and through that, he came to know you. When you meet at school for your children’s activities, the discussions are all about the children and their wellbeing.
16. You are a very generous person. You like helping to pay for costs of activities when other parents have been invited with their
children. You are honest and open about what you think about a subject. There are no “hidden agenda”. You are a trustworthy
person.
17. There are others who provided character references to support your plea for leniency like your parent’s hausmeri, Mrs Solance
Danson and the Assistant Secretary of the Department for Community Development and Religion, Here Aihi. Like others, they too speak
highly of you as a loving and caring person and a committed mother to your children.
18. To sum up, I can see that all your family members and close friends speak highly of you but it is sad that what you did is not a reflection of the kind of person you are and has put you in this undesirable position.
Your lawyer’s Submissions
19. Your lawyer refers me to the Supreme Court case of Christine Gawi, CEO Modilon General Hospital v. Elizabeth Mandus Wukawa & The State (2016) SC1478 where the Court set out in general terms three classes of contempt:
19.1. Technical contempt – where the contempt is “casual, accidental or unintentional – penalties vary from accepting an apology to costs orders or fine.
19.2. Wilful contempt – deliberate conduct but without specific intent to defy judicial authority. A fine is generally all that is required to vindicate the authority of the Court.
19.3. Contumacious contempt – involves an obvious intention to defy and disobey the authority of the Court. Custodial sentences will frequently be imposed. It is associated with “criminal” as opposed to “civil” contempt.
20. I take note of them.
21. Your lawyer also makes reference to Order 14, rule 49 of the National Court Rules which sets out the different forms of punishment for contempt. They range from a fine to imprisonment. I take note of them.
22. Finally, learned counsel refers to the National Court cases of Sr Dianne Liriope v. Dr Jethro Usuruo (2009) N3931; Bank of South Pacific Limited v. Anton Sekum (2011) N4588 and Paul Gend v. Joe Mangre (2019) N8090 where the Court imposed a fine of various amounts on the contemnors and if they failed to pay the fine within 30 days, they will be imprisoned. I take note of them.
Forms of penalty and Sentencing Discretion
23. The offence of contempt is undefined as it is unwritten. In terms of penalty, Order 14, rule 49 of the National Court Rules prescribes, amongst others, two forms of penalties, one a monetary fine and two, imprisonment. As to the term of imprisonment, it is not prescribed in the National Court Rules. However, the general principle applied in sentencing discretion in criminal law is that, the maximum penalty is usually reserved for the worst case. It would appear that a sentencing judge in a contempt matter is also guided by this principle.
24. I will comment on these forms of penalties and sentencing principles in more detail later on in the judgment. For now, I turn to consider the sentence for each offence.
Refusal of access to your husband to collect the children on Saturday 15th November 2014 contrary to the Court order of 4th November 2014.
25. Your lawyer submits that your breach of the order is wilful but without specific intent to defy the Court order. As the breach was short, a fine of K500.00 is appropriate.
26. Your husband’s lawyer submits your husband supports a non-custodial sentence and that a custodial sentence is not appropriate. He says that your husband does not see a custodial sentence beneficial to both of you and your children but your husband wants you to know that the purpose for citing you for contempt is to get you to allow him to have access to the children of your marriage.
27. He submits that to date, you did not allow your husband access to the children, save for one or two occasion prior to the filing of the motion for contempt. Your husband seeks an outcome which will be for your rehabilitation rather than retribution.
28. In the decision on verdict, I found your defence that it was your children who refused to go with their father when he turned up to collect them unconvincing and rejected it. Consequently, you were found guilty of deliberately disobeying the order. For this reason your defence that you did not intend to disobey the order will be disregarded in your plea for leniency.
29. It follows that the reference in your affidavit to your refusal to allow access to your husband to the children because they refused to go with him will be disregarded. Similarly, the reference in your brother’s statement to the children’s refusal to go with their father will be disregarded.
30. This leaves only the finding that you deliberately refused to allow your husband access to the children. This means that the contempt is not casual, accidental or unintentional which would make the offence you committed fall within the first category of contempt cases identified in Christine Gawi case (supra). It follows that an apology or costs orders would not be an appropriate form of penalty or punishment.
31. In my view, the penalty or punishment for this offence will fall between category two and category three in Christine Gawi case (supra). It will be between a fine and imprisonment or both depending on the presence of mitigating and aggravating factors.
32. The mitigating factors are:
33. Against you are these aggravating factors:
34. I want to spend a bit of time to talk about the right of access to children. It is universally recognised that every parent has a right of access to their children. It is a right bestowed upon them the moment a child is born unless they choose otherwise. It is also a right that comes with responsibilities.
35. In your case, your husband did not shy away from that responsibility and was simply asking you to respect his right as the father of your children to have access to them. Equally, it is a testament of his commitment and contribution to the children’s growth and wellbeing and willingness to play a role in their upbringing.
36. However, you denied him that right. You did not give him the opportunity to spend time with the children, the time itself is very brief because it was just the weekend from Saturday to Sunday while you enjoyed and continue to enjoy more time with them by virtue of your custody right. This factor makes your case much more serious than someone who has accidently breached an order.
37. I now want to talk about the Court order and how and why the Court came to be involved in your case. You and your husband had decided to go your separate ways. Both of you will be respected for that decision. However, as you have children, a decision will have to be made either by agreement or by the Court to which one of you will have custody and which one of you will have access to the children. Both of you came to Court to sort out the custody and access rights for you.
38. As I said at [39] to [40] of the judgment on verdict:
“The Court became the “mediator” of [your] dispute and not one but three different orders were issued by the Court to assist and guide [you] to resolve the dispute over access and custody rights of [your] children”.
The orders were intended to bring a solution, if not, a lasting one for [you] and [your] children. It will come back to [you] to take ownership of the orders and make (sic) them happen. Nobody is going to do it for [you]”.
39. This is how and why the Court came to be involved in your case. It was the decision of the Court that you will have custody of the children while your husband will have access to them. This decision was the end product of a hearing by the Court.
40. The order is clear and unambiguous. You understood your obligation to observe the order. The obligation to obey the order is not dependent on how you feel or what you think is the best for your children. It is unconditional and must be complied with at all costs. But in this instance, you chose not to observe it citing in your defence that your children were sick which was rejected. Failure to comply with it will result in a breach and where there is a breach, it must be vindicated.
41. Your decision not to comply with the order on the given date and allow your husband access to the children show to me that the
order is not important and is a worthless piece of document. It will be held against you.
42. I accept that this is your first time for breaching a Court order and you are remorseful. I accept your apology. These matters
reduce the seriousness of the contempt. I further note your lawyer’s submission that I should impose a monetary fine because
the period of breach is short. I also note your husband’s lawyer’s submission that your disobedience is continuous and
wilful because you have not allowed your husband access to the children to date except on one or two occasions prior to the filing
of the motion for contempt.
43. I will accept your submission because it is not alleged in the charge that your breach of the order is continuous or persistence. Thus, you will be given the benefit of doubt that the period of breach is short. This factor operates in your favour.
44. However, in my view, your plea for leniency on the ground that you are responsible for the daily upkeep of the children and a custodial sentence would not be appropriate does not substantially reduce the seriousness of the contempt and the sentence to be imposed on you. For it is equally true that before committing the contempt, offenders like you must remember that such actions will impact on your children’s welfare and wellbeing as well as other family members who depend on you.
45. In many past cases, the Courts have rejected it as a mitigating factor. I do likewise. However, because you are a first-time offender with no prior convictions, remorseful and the period of breach is short, about two days, I consider a non-custodial sentence appropriate. You will, therefore, pay a fine. The amount is K500.00. You will pay it within one month of this order, failing which you will be imprisoned for one month at Bomana Correctional Institution.
Refusal of access to your husband to collect the children on Sunday 14th December 2014 contrary to the Court order of 17th November 2014.
46. Your lawyer makes the same submission as in the first case that your breach of the order is wilful but without specific intent to defy the Court order. As the breach is short, a fine of K500.00 is appropriate.
47. Your husband’s lawyer also makes the same submission that a custodial sentence is not appropriate. He says that your husband does not see a custodial sentence beneficial to both of you and your children but he wants you to know that the purpose for citing you for contempt is to get you to allow him to have access to the children of your marriage.
48. He submits that to date, you did not allow your husband access to the children, save for one or two occasion prior to the filing of the motion for contempt. Your husband seeks an outcome which will be for your rehabilitation rather than retribution.
49. As I observed earlier in the decision on verdict, I found your defence that it was your children who refused to go with their father when he turned up to collect them unconvincing and rejected it. Consequently, you were found guilty of deliberately disobeying the order. For this reason your defence that you did not intend to disobey the order will be disregarded in your plea for leniency.
50. It follows that the reference in your affidavit to your refusal to allow access to your husband to the children because they refused to go with him will be disregarded. Similarly, the reference in your brother’s statement to the children’s refusal to go with their father will be disregarded.
51. This leaves only the finding that you deliberately refused to allow your husband access to the children. This means that the contempt is not casual, accidental or unintentional which would make the offence you committed fall within the first category of contempt cases identified in Christine Gawi case (supra). It follows that an apology or costs orders would not be an appropriate form of penalty or punishment.
52. In my view, the penalty or punishment for this offence will fall between category two and category three in Christine Gawi case (supra). It will be between a fine and imprisonment or both depending on the presence of mitigating and aggravating factors.
53. The mitigating factors are:
54. Against you are these aggravating factors:
55. For the reasons I have expressed at [34] to [45] (supra), I am satisfied that a non-custodial sentence is appropriate. You will pay a fine. I fix a sum of K500.00 to be paid within one month of this order, failing which you will be imprisoned for one month at Bomana Correctional Institution.
Scandalising the Court by writing a letter to the Director of Child Welfare Services dated 21st November 2016 complaining about the judge being biased and favoured your husband because he was a former work colleague of your husband’s lawyer.
56. Your lawyer submits that your conviction for scandalising the Court is wilful contempt as you were the author of the letter dated 21st November 2016, however, without specific intent to defy the judicial authority.
57. However, a non-custodial sentence of a fine of K2,500.00 is an appropriate form of punishment. The increase in the fine should reflect the seriousness of the contempt.
58. Your husband’s lawyer makes the same submission supporting your submission for a non-custodial sentence in addition to the submission that the Court ordered both of you to undergo counselling by a counselling expert.
59. Your lawyer and your husband’s lawyer did not refer me to a past case on scandalising the Court either in this jurisdiction or other jurisdictions and the sentence imposed for this kind of contemptuous conduct. Thus, I am not certain if a non-custodial sentence is an appropriate form of punishment for a person who has been guilty of scandalising the Court.
60. However, one thing is clear, while other forms of contempt are said to be an attack on the authority of the Court, scandalising the Court is, in my view, the worst form of attack on the authority of the Court. This is because it is direct and personal. It arises from statements made by the contemnor towards the judge on how the judge dealt with a case and why he or she arrived at the decision outside the parameters of an appeal or review to a higher court, as the case maybe.
61. In your case, after the Court’s decision of 9th December 2015, amongst the other things, you made representation to the National Child and Family Welfare Services (Child Welfare)
and complained about the decision. As a result, a decree was issued and served on your husband stopping access to the children.
62. One of the letters you wrote to the Director of Child Welfare is dated 21st November 2016 which led to your conviction for contempt. It reads in part:
“Makail J was not swayed by the arguments and accordingly did not award the protection despite the evidence of harm to both children.
I felt the decision was rushed due to the holiday period and possibly because the Judge and my ex husband’s lawyer, Simon Nutley, have worked together”.
63. After numerous representations by letters from your husband’s lawyers to Director of Child Welfare including one additional meeting, the decree was eventually withdrawn.
64. A significant aggravating factor is your decision to complain to the Child Welfare about the decision of the Court and not appeal it. In so doing, you ended up not only accusing the Judge of rushing his decision but also accusing him of being biased because he and your husband’s lawyer were former work colleagues.
65. As I observed in the decision on verdict at [80], “If [you] had any issue with that [Judge and your husband’s lawyer being former work colleagues], it was open to [you] at the time to apply to the Judge to recuses (sic) himself.”
66. The content of the letter not only can be viewed as scandalous but also an attempt to undermine the authority of the Court by someone who is not willing to accept the decision of the Court. This is a very serious breach. I will return to comment on this in more detail later on.
67. For now, your contemptuous conduct reminds me of the contemnor in Christine Gawi case (supra). Except where it was not a case of scandalising the Court, the Supreme Court was asked to reduce a sentence of six weeks imprisonment imposed by the National Court to a fine of K5,000.00. By way of cross-appeal, Ms Wukawa sought an increase in the term of imprisonment to one year. The cross-appeal was dismissed.
68. The appellant, Ms Gawi a Chief Executive Officer (CEO) of a General Hospital was convicted for breaching a Court Order when she
failed to reinstate Ms Wukawa and pay outstanding entitlement by a certain date following a successful judicial review proceeding.
In mitigation, Ms Gawi argued that she relied on faulty legal advice from her lawyers. The advice was that she had filed an appeal
and sought an order to stay the Court order and it was not necessary to reinstate Ms Wukawa.
69. The Supreme Court acknowledged that while Ms Gawi held a senior position as a CEO in a public institution, intelligent and experienced
and should have complied with the Court order, it upheld the ground on her reliance on faulty legal advice and reduced the sentence
of six week imprisonment to a fine of K5,000.00.
70. In reducing the sentence, the Supreme Court expressed a view at [50] of the judgment that “there must be an intention or a deliberate act to disobey a Court order by the disobeying party for the contempt to be described as continuous”. Ms Gawi’s disobedience was not continuous because she acted on faulty legal advice and then quickly complied with the Court order after her appeal was dismissed.
71. The decision to impose a fine is also consistent with the generally accepted principle that each case of contempt must be considered on its own merits. Relevantly, in determining punishment, the Court must consider the entire circumstances of the matter and administer a punishment that is fair in the circumstances of the case taking into account the level of culpability and intention of the contemnor; see [36] of the judgment in Christine Gawi (supra).
72. The Supreme Court took heed of the caution sounded by the full Federal Court of Australia in Vaysman v. Deckers Outdoor Corporation Inc. [2011] FCAFC 17; [2011] 276 ALR 596:
“The starting point for the purpose of reasoning in sentencing is the gravity of the offence. In the case of the contempt of Court involving contravention of, a failure to comply with, Court orders, that meaning assessing the seriousness of the defiance of the Courts authority”.
73. Then later the Court said:
“Restraint is appropriate in imposing sentences of imprisonment contempt of court involving contravention of, a failure to comply with, orders of the Court. The authority of the court can be brought into dispute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity”.
74. At [39], the Supreme Court quoted the following statement by the full Federal Court:
“The vindication of judicial authority must necessarily reflect the nature of the challenge to that authority inflected by the conduct of contempt in questions”. “Imprisonment, as a disciplinary sanction for contempt, ought to be confined to the most serious of contempts.” “As Keane CJ, Dowsett and Reeves JJ recently observed in Jones v. Australia Competition and Consumer Commission [2010] FCAFC 136 at [36], there would be a serious question of the propriety of a sentence of imprisonment if the charges raised only a case of civil contempt; that is, a case where contumacious conduct was not contended for”.
75. I have cited statements by the Supreme Court in PNG and the full Federal Court of Australia to bring to your attention although the penalties for contempt are not prescribed in the National Court Rules, it would appear that a term of imprisonment is considered the maximum penalty and reserved for a worst case of contempt. As to how long a term of imprisonment is, it is not prescribed in the National Court Rules. It will vary and depend on the seriousness of the contempt in each case.
76. A worst case is defined as conduct that is intentional and contumacious lacking respect for authority. In some cases, a sentence of a term of imprisonment will not be imposed where contumacious conduct was not contended for. In others, the Court may impose it even if it was not contended for.
77. I come back to the point I made earlier that the breach is very serious. Your contempt is wilful and contumacious because it is exemplified by the following series of conduct and omissions:
78. These series of conduct and omissions show to me that you did not wish to submit to the authority of the Court. And it cannot be said that what you wrote in that letter was without specific intent to defy judicial authority. On the contrary, it was contumacious – it was a case of lack of respect of the Court. It undermined the authority of the Court.
79. While your husband supports your plea for a non-custodial sentence or that he did not contend for a custodial sentence, as I pointed out earlier, I am not bound by it and it is open to me to decide otherwise. For each case must be decided on its own merits and if the facts support a custodial sentence, it is open to the sentencing judge to impose.
80. While you are a first-time offender with no prior convictions, remorseful, the degree of culpability is grave because of the matters I have outlined at [77] above and places your contempt in the third category of contempt in Christine Gawi case (supra).
81. In the circumstances, a custodial sentence is appropriate to mark the Court’s disapproval of such conduct and bring contemnors like you to submit to the authority of the Court for the common good of others.
82. You will be imprisoned for a term of one month. In my discretion, I will wholly suspend it on condition that:
83. As to your husband’s submission that there be a condition of your suspended sentence for you and him to undergo counselling by a counselling expert, there is no evidence from either a counselling expert or Director of Child Welfare to enable me to make that decision. That does not mean that parties should not pursue this option, either voluntarily or by order of the Court on a later date. I will leave that to the parties to pursue.
Failing to pay the plaintiff’s half share of the proceeds of sale of the Malaysian property.
84. Your lawyer submits that your failure to pay your husband’s half share of the proceeds of sale of the Malaysian property is technical contempt because you were of the view that your husband had not made half of the financial contributions to the Malaysian property.
85. In any event, since your conviction, you have made efforts to distribute half of the proceeds of sale of the property to your husband.
86 In the circumstances, your lawyer submits an appropriate sentence is a fine of K500.00.
87. Your husband’s lawyer makes the same submission supporting a non-custodial sentence in the interest of both parties and importantly, the children. He also seeks an order for you and your husband to undergo counselling by a counselling expert. He submits that this is one option for both of you may pursue if an order is given.
88. The mitigating factors are:
89. Against you are these aggravating factors:
90. The order is clear and unambiguous. You clearly understood your obligation to observe it. Paragraph 16 of the consent order is expressed in these terms:
“In so far as the jointly owned Malaysian property is concerned, it be sold and parties share the net proceeds of sale in proportion to the financial contribution of that property”.
91. You were found guilty of not paying half of the proceeds of sale of the property in the sum of K57, 881.00 to your husband as his contribution to the purchase price of the property.
92. At [90] of the decision on verdict, it was held that it took more than one year since the release of the proceeds to your mother in September 2016 to date of filing the motion for contempt on 11th December 2017 for you to release your husband’s share to him.
93. Even after the filing of motion for contempt, you still did not release your husband’s share to him. There was no attempt to make part payment while you and your husband negotiate the balance, if your husband’s share was so contentious. You did not and continued to hold your husband to ransom. To my mind, you were defiant and want your husband to settle on your terms. It is an indication of your stubbornness and lack of respect for the authority of the Court.
94. I repeat what I said at [39] and [40] of the judgment on verdict. The Court became the “mediator” of you and your husband’s dispute. The orders issued by the Court were meant to bring a lasting solution to the dispute. In this case, a consent order was signed by the Court to facilitate the distribution of the proceeds of sale of the property.
95. Instead of you organising the transfer of payment to your husband, you did not. I was contemplating imposing a custodial sentence for this contempt because your conduct in not acting swiftly to release your husband’s share of the proceeds to him is indicative of wilful disobedience of the Court order.
96. However, I will relent and impose a non-custodial sentence. I so do on your assurance through the emails exchanged between your PNG lawyers and Malaysian lawyers for the release of the proceeds to your husband in your affidavit filed 15th May 2020. That is, you are now making arrangements to pay your husband’s share to him.
97. In addition, I note that your husband’s lawyers wrote to your PNG lawyers advising that your husband has decided that you may keep all the proceeds of the sale including his share. In return, you will offset the maintenance sum of K2,000.00 from his share and release him from his obligation to maintain you each fortnight. You are yet to respond to this proposal and for this reason, I will give you the opportunity to work it out and hopefully you will reach an outcome that will be mutual to both of you.
98. While your plea in mitigation that you are the major care-giver and provider for your children will be disregarded for the reasons I have given [44] above, I accept your plea that you are a first-time offender with no prior convictions and remorseful. Significantly, you are now making an effort to make good the wrong and will give you the opportunity to make it happen.
99. In all the circumstances, you will pay a monetary fine. The sum is K500.00. You will pay it within one month of this order, in default, you will serve a term of one month imprisonment at Bomana Corrective Institution.
Summary and Order
100. The sentence of the Court is as follows:
Fine of K500.00 to be paid within one month of this order.
In default, imprisonment for a term of one month at Bomana Correctional Institution.
Fine of K500.00 to be paid within one month of this order.
In default, imprisonment for a term of one month at Bomana Correctional Institution.
Imprisonment for a term of one month, wholly suspended, on condition that you:
3.1. Be of good behaviour and maintain peace during the period of suspension.
3.2. Allow your husband access to the children based on the arrangements set out in the Court orders of 4th, 17th November 2014 and 19th (20th) February 2015.
3.3. Report to the Registrar of the Court on the last Friday of June 2020 between the hours of 9:00 am and 3:30 pm.
3.4. In default of any of these conditions, you will serve the remainder of the term in prison at Bomana Correctional Institution.
Fine of K500.00 to be paid within one month of this order.
In default, imprisonment for a term of one month at Bomana Correctional Institution.
Sentenced accordingly.
________________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for Plaintiff
Simpson Lawyers: Lawyers for Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/143.html