State v Atmeyok [2009] PGDC 1; DC693 (5 January 2009)

DC693

PAPUA NEW GUINEA
[THE DISTRICT COURT OF JUSTICE]

DCCr NO. 363 - 364 OF 2008

THE STATE

V

JOHN ATMEYOK & IAN ATMEYOK

Tabubil: P. Monouluk, SM
2008: 08 September; 03, 12 November;
2009: 05 January

SENTENCE

SUMMARY OFFENCES – Unlawful assault – Section 6(3) Summary Offences Act Chp. 264 – Victim related to the defendants – Victim kicked and punched – Victim suffered black eye and bruised body – Defendants remorseful and paid compensation – Victim accepted compensation and apology and forgives the defendants – Extenuating circumstances – Victim involved in polygamous relationship with defendants’ brother and father respectively – Victim’s presence in the family home cause for discomfort – Family suffered as a result of the victim’s presence – Provocation but not in the legal sense – Defendants minds and feelings prior to offence important considerations – Public policy consideration – Guilty plea – Nil previous conviction – Family consideration appropriate – Appropriate penalty – Evening detention.

Cases:

1. The State v. Esi Thomas Malaki, CR No. 958 of 2008
2. Thress Kubamong v. The State (2008) SCR 29 of 2007

Reference:

1. Summary Offences Act Chp. 264, s.6

Counsel:

F/Constable Paul Irie for the State
Defendants in person

05 January 2009.

1. P. Monouluk, SM: This matter is adjourned to today for the court to decide on the type of penalty that is deemed appropriate for the two defendants John Atmeyok and his nephew Ian Atmeyok for having pleaded guilty to a charged of unlawful assault contrary to s. 6(3) Summary Offences Act Chp. 264.

2. The defendants are from Kumgit village about 6km outside Tabubil, Western Province towards the PNG/Indonesian border. They are related to the female victim Ellyn Atmeyok who is from the Southern Highlands Province and is the second wife to John’s elder brother Daniel Atmeyok, a local leader and a local company director. Ian is Daniel’s eldest son from the first wife who is a local woman. Simply put Ellyn is John’s sister-in-law and Ian’s step-mother.

3. There is however, something more to John and Ian. John is a local Ward Councilor for his Kumgit village and is the Deputy President of the Star Mountains Local-Level Government Council (SMLLGC). He is also the Deputy Chairman of the Mineral Resources Star Mountains Limited, a subsidiary company of the Mineral Resources Development Corporation. Ian, at the time of the offence, was an 18 year old Grade 10 student at the Tabubil High School and interestingly is married which we shall see why.

4. On the 08th September 2008 the defendants appeared before this court and pleaded guilty to the charge of having jointly assaulted Ellyn. The court heard that at about 7 o’clock on the morning of Thursday 21st August 2008 Ellyn was with her adopted child having their morning bath at home in Kumgit when approached by Ian who apparently was upset over some family issues and began to assault her by punching at her head causing her to fall on to the ground half naked. As she attempted to regain her feet she was continuously kicked on her hip and buttocks and punched on her shoulders. At this point John came on to assist Ian and punched Ellyn on her eye causing her to fall onto her knees in pain. She said that she was blinded by the blow and all she can remember was kicks and punches that came relentlessly at her body. As a result of that Ellyn sustained a black eye and bruises all over her body. There was no medical report to confirm that however the defendants were able to reaffirm this when the statement of facts containing the assessment was presented by the State.

5. For assaults of this nature the law is clear in these terms:

"6 Assault

(1) ...

(3) A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years."

6. A person convicted under this provision of the law faces a maximum court fine of up to K500.00 or goes to prison for up to two years. Whether a convict gets a fine or imprisonment depends very much on the nature or the circumstances of the case beforehand. Other external matters may also be of relevance for the sentencing court to consider when deciding on an appropriate penalty and may often result in the court invoking its sentencing discretion under various provisions of the District Courts Act Chp.40.

7. Bearing in mind the first instance penalties and the availability of other penalty options, the court now must ask itself what is the appropriate penalty(s) for this particular case taking into account the circumstances leading up to the assault which I will review before deciding on the penalty.

8. It is not disputed that the defendants had joined force to assault Ellyn who we know is a wife, a mother and, of course, a weaker sex. At the time of the incident she was with her young female child and was preparing to have her bath. This explained why she was half naked when assaulted and not to mention the real likelihood that her child may have been terrified seeing her mother being beaten up in front of her.

9. We once more see violence against women by any measure continues to go unabated in our community despite increasing publicity in the media with the hope that the perpetrators would rescind such behavior and other liked-minded would be discouraged from thinking about committing such offensive behavior – let alone dream about it. On the other hand, victims have been called upon to speak out or seek help and those who are mandated to address these issues such as the police and the courts must in turn rise up to properly address this growing issue with unwavering firmness and sternness. In the end and with much optimism such consorted effort may hopefully curtail this social evil that is slowly affecting our women folk and families everywhere.

10. While that may be the focus, the courts as arbitrators of facts must not ignore presented facts that often indicate that many a times women or victims tend to put themselves at the receiving end. In other words you cannot jump into a fire and not get burnt - surely our acts and omissions may have repercussions of some sorts somewhere down the line.

11. In the past courts have been reluctant to enquire further as to why offenders acted the way they did. All too often we see the courts too quick to impose whatever penalties that are stipulated under the law and not being able to review the events the defendants had to endure to appreciate the minds, the feelings and the attitude of offenders leading up to them committing the offence before holding them entirely responsible. I am happy to say that the approach has now been changed as will be seen later.

12. This case is one such example where the defendants, in explaining their actions, revealed that since the day Ellyn was brought home to Kumgit village by Ian’s father as his second wife in a polygamous relationship chaos, disharmony and hatred also came home to replace peace, love and joy that once were in abundance in the household of the Atmeyok family. The family began to suffer; Ian’s mother naturally was at logger-heads with Ian’s father over Ellyn’s presence in her matrimonial home and consequently neglected most of her household choirs. Furthermore Ian’s younger siblings were not eating and sleeping well, two of them began to miss classes at the Tabubil Primary School to the point that they were forced to withdraw from school. Ian who was a Grade 10 student at the Tabubil High School was forced to look for a wife at a young age and while being a 10th Grader just so his wife can look after his siblings and also manage the Atmeyok household in the absence of his mother while he attended school.

13. I must say that this is a big sacrifice young Ian had to make for his siblings and his family while still his father’s child and attending high school. He had to forego his youth and take on the responsibility of an adult just so that the effect of his father’s action and inaction may not prove too costly for his family. Ian’s sacrifice and wisdom must be commended by this court.

14. Meanwhile John had no choice but had to step in to assist his elder brother’s household. Being an uncle to Ian and his siblings and also being the local Ward Councilor John had on many occasions had to step in to assist with food, cash and often call upon to mediate dispute settlements between his elder brother Daniel and Ellyn and her relatives. All too often they were made to pay compensation to Ellyn and her relatives. At times when the family runs out of money they often call upon the innocent Kumgit community and the people outside of the family to contribute money to appease Ellyn and her people. All these, John said, were frustrating which culminated in the attack on Ellyn on the 21st August 2008 and as usual they were made to pay compensation once more.

15. It is now obvious that the defendants have given an explanation of frustrations that led to their actions of the 21st August 2008. To me that seemed favorable to their case and is acceptable in that form and manner by the court and if the State has any difficulty with that then it has the option to seek a trial to adduce contrary evidence to show that the defendants were acting under some other reasons and as such should not be accorded these explanations to justify their conduct as provocation.

16. In a recent National Court matter of The State v. Esi Thomas Malaki, CR No. 958 of 2008 Justice Ambeng Kandakasi in following what an important earlier Supreme Court decision of the same year had recognized in the case of Thress Kubamong v. The State (2008) SCR 29 of 2007, which he was a member of, said that the defence of provocation is also applicable to a situation whereby the defendant spouse kills his/her spouse’s sexual partner. In making this finding the Supreme Court pointed out that a sentencing court must be able to look further into why offenders tend to act the way they do; to appreciate the nature of the offender as a human person with the capacity to hold on to his past, his feelings or his grudges against another for a longer period and thereafter may respond accordingly.

17. In essence both the Supreme and the National Courts, in imposing suspended sentences against the two women offenders, are saying that the time limits as perceived by various defences such as accident, extraordinary emergency, provocation and self-defence whether it be under the Criminal Code Act Chp. 262 or the Summary Offences Act (supra) have over the years ignored the basic truth that offenders are human persons and are susceptible to holding onto past feelings and hurts, some for a shorter period while others over longer period. In the end their responds may prove fatal, as we have seen in these two cases and many more in the past. The Supreme Court said and was reaffirmed by the National Court and also by me that:

" ... all humans who are ... identified with their thoughts ... are inclined to act in defence of their ... self, their children, relatives and friends, their property and their lives and their means of survival. Most people call this pure animal instinct,..."

18. If that is the case then can we hold the defendants entirely responsible for their human instinct or emotions which make them what they are? I think not. The Higher Courts realized this difficulty and the unrealistic expectations placed upon offenders by the requirements of the various defences mentioned above in cases where victims have over time by certain actions and inactions tormented the offenders either physically or emotionally to the point where the offenders no longer can control their emotions. When that happens then the courts after convicting the offenders still retain the discretion to impose penalties other than what is prescribed for under the offending provision of the law.

19. This is true in the present case. The court cannot easily brush aside the defendants’ explanation that their actions of the 21st August 2008 was a result of the frustrations caused by Ellyn’s arrival at the family home coupled with the subsequent suffering faced by the family due to a non-attendance to responsibilities by Ian’s father as he was spending more time and money on Ellyn. They have a good excuse although not entirely justifiable under law but is reasonable enough in the circumstances to be given some consideration.

20. This explanation brings to fore the hurts and pains bore by the defendants upon seeing that Ellyn’s presence have threatened their family’s livelihood and its survival. This went on for sometime to the detriment of the innocent family. There is nothing put forth by the State to show that the defendants’ conducts, one way other, had facilitate the arrival of Ellyn or may have been provoked by something else. In the absence of that the defendants are entitled to rely on their reasons without much difficulty.

21. May I say that this type of situation is not an isolated case. It is all too often seen and played out in various mine villages in and around Tabubil in recent times. It is not a new issue and should be a concern for all stake holders in Tabubil as it is one primary cause of social disharmony in many families in the mine villages. We have seen in court younger women from a certain region of Papua New Guinea flocking into Tabubil and seducing older male local landowners and company directors most of whom are married and have accessibility to royalty payments in the thousands of Kina from the mine and its spin off activities. As a result we have seen numerous cases of abuse, assault, adultery, family maintenance and custody proceedings and marriage dissolution applications involving our local women and children in unprecedented numbers in Tabubil lately.

22. This is one direct consequence of opening the Tabubil Township to the rest of PNG and the end result is that many homes and families in the mine villages are being threatened simply because many of their husbands and fathers who usually have lots of money on the one hand often have very little restraint on the other, and that is where many of our social problems begin. Furthermore, this unplanned influx of people, to some extent, may have contributed to the increase in the spread of HIV/AIDS in this small district town of Tabubil because of this freedom of movement guaranteed under the Constitution.

23. I must say that this freedom has been abused well and true to the point where it is now facilitating law and order issues as well as social around the country and is helping in a big way the spread of HIV/AIDS. People who are suppose to be at home suddenly finds themselves in towns and cities apparently for no good reasons, and most often resort to crime for their survival. And those who have contracted the HIV/AIDS virus are still free to travel any where and infected others more, all in the name of the freedom of movement.

24. Having said that may I make clear that this does not mean that I do condone what has been done to Ellyn. Violence against our women folk continues to torment families and communities and will persist if nothing is genuinely done to address it by all stakeholders. As I have said earlier every responsible authority and stakeholder will have to take ownership of the issue and genuinely address it and this means women and victims must play their part by acting responsibly and doing what is required of them as a wives, as mothers and generally as respectful members of our communities and not act as marriage wreckers or facilitators of family and ethnic violence.

25. My experiences have shown that more women have been taken to court as being responsible in seducing married men in adultery cases and that is why women folk will really need to review their conduct as women. It is not good to point fingers at the men folk and not being able to first clean their own backyard. However as a court I am obligated to look the circumstances of the case in totality and make an assessment of the facts which must be deemed just and at the same time consider the views of all parties concern including those who stand condemned.

26. In the present case it would seem that the defendants’ action toward Ellyn was a direct consequence of a culmination of pain, suffering and frustration that were endured by the defendants and their relatives over time which, I believe, was brought about partly by Ellyn as a result of her relationship with Ian’s father whom the family despised. Ellyn and Daniel however continued on their relationship oblivious to the fact that the Atmeyok family was in dire strait. It appears that Ian’s father was blinded to the fact that his household was not in order and the children in particular were suffering. Consequently we saw the reaction by the family in the manner that once more will see them suffer further all because they were fighting to protect their family whose existence was threatened. Ironically their father whom they trust to ensure their safety and soundness is too selfish to consider their plight.

27. Having said all these I now have decided to penalize the defendants according to what is expressly stated under s. 6 Summary Offences Act (supra), however one may ask why not a suspended sentence as was seen in the cases of Thress Kubamong (supra) and the that of Essi Thomas Malaki (supra). This would have been an ideal sentence had it been Ian’s mother as the defendant fighting for her husband’s intimacy and the rights of her children to their father and their welfare. The relationship between the defendants to Ellyn and Daniel is different; it is not polygamous or adulterous in nature as were seen in the above cases. The defendants in this matter, as seen above, are related to Ellyn as an in-law and as a step-son respectively and are married, however have combined to assault a lone female. It was an act of violence perpetrated by the victim; nevertheless such behaviour must be stamped out even though the reason behind the violence may appear to be excused to some extent.

28. Bearing in mind my intention on the type of penalty, I am reminded that John and Ian have pleaded guilty and have no prior conviction. I do note also that they were remorseful for their indiscretion and have paid compensation and accepted well by the victim. Against these is the public policy aspect that I must not ignore. Community continues to suffer and in particular our women folk because of violence, at times provoked by themselves. This is very prevalent and we must put a stop to these kinds of behavior that are exhausting many of us in terms of resources and energy. Parties must not resort to violence to address family issues or any other issues for that matter but must make use of the existing community and government provided facilities to resolve their issues.

29. I do note further that between the two, John has a bigger responsibility in the community as a Ward Councilor and the Deputy President of the SMLLGC and also a board member of various companies. These responsibilities should make him become wiser and not helped in assaulting Ellyn. In fact he would have been the best person to help resolve the issue instead he helped to make the situation get worse but I do note that he had paid compensation and was remorseful to Ellyn. As a member of the Tabubil community I find John is a very respectful person and peace loving except on that one occasion where he had let slipped his guard. As for Ian, I do understand the pain he had to endure as a result of his father’s desire for another woman whom I must say is equally responsible for this trouble that had befallen Ian and the family.

30. Ian is entitled to rely on family consideration in this case unlike other earlier situations whereby various Higher Courts have said family consideration is not an excuse to escape punishment. In those cases it seemed that families were not wronged by the actions of the victims and the offences were premeditated, whereas the case at hand is different. I say this because in the present case Ellyn’s polygamous relationship with Ian’s father had caused the same family to suffer which Ian now pleas to the court to consider. To me Ellyn has had a hand in the situation Ian and the family is now in. Had it not been for such a relationship Ian and the entire Atmeyok family unit would not have been adversely affected in this manner.

31. On the whole I do note that the defendants, and especially Ian, have reacted out of provocation not necessarily out of the legal sense but out of their human instinct or pure animal instinct (as the Thress Kubamong case likes to put it) in showing their disapproval of Ellyn’s relationship with Ian’s father and her intrusion into their family life which has been the major cause of a lot of hardship faced by the Atmeyok family and consequently Ian had to marry early whilst being a Grade 10 student at Tabubil High School and two of his siblings had to withdraw prematurely from Tabubil Primary School. The same is true for John who continues to step in as their Ward Councilor and as an uncle to Ian and his siblings in the absence of their father’s love and care.

32. There is nothing from the State to say that the defendants’ hardships were far too remote from Ellyn’s relationship with Ian’s father as presented in their submissions and the points I have highlighted. It seems to me that the actions by the defendants were in fact reactions based on the extenuating circumstances as highlighted above. Despite that I reiterate still that violence is no excuse to right a wrong nor is it an excuse to escape punishment in this case. For me to impose a court fine will not take into consideration the nature of the case and the public policy aspect of such misdemeanor which is very prevalent in our society, neither will such a sentence take into account the various positions held by John; in fact John’s various positions as such, particularly that of a Ward Councilor, warrant an imposition of a far greater sentence than what I am about to impose.

33. On the other hand, for me to impose a typical/straight forward imprisonment term will be harsh and ignorant of the extenuating circumstances leading up to the assault. Therefore in balancing these views and in answering the question I first posed I hereby consider sentencing John and Ian to a six-to-six imprisonment term or to an evening detention that will run for 05 nights commencing Wednesday 07th January 2009 at 6 o’clock in the evening. The defendants are to report for detention at Tabubil Police Station every 6 o’clock evening and be released every 6 o’clock morning until Monday 12th January 2009 at 6am. Furthermore, defendant John is to immediately apologize publicly to his voters.

Orders accordingly.