Manau v Mambol [2009] PGDC 25; DC917 (17 April 2009)

DC917

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CIR NO: 50 of 2009

BETWEEN

ANDREW MANAU
Informant

AND

KONI MAMBOL
Defendant

Aitape: M Samala
2009: 17 April

Criminal Law - Use of grossly abusive and obscene insults against married couple, Aggravating factor, No provocation, defendant a drug user and has bad character, Dangerous to public, Sentence, Custodial sentence with additional restriction of movement orders, Be returned to his village upon release from prison.

Cases Cited:
None

Legislation References:

1. Section 205 (3) of the District Court Act
2. The Preamble of the Constitution – Basic Rights

Counsel:

For the Prosecution – Constable John Bidau, Aitape Police Statione
For the Defendant – In Person

17 April 2009

M Samala: The Defendant pleaded guilty to one (1) count for having used grossly offending abusive insult on a couple contravening section 7 (b) of the Summary Offences Act, Chapter 264. The penalty provision of section 7 carries a fine of K300.00 or imprisonment term not exceeding one (1) year.

2. FACTS

On the date of the offences 8 April 2009 defendant was at Kumu market and upon seeing the couple namely Mr. Namile and wife Mrs. Namile in the market crowd, for no apparent reason he approached the two (2) and in plain pidgin language told the husband, “Yu kaikai kan blong meri bilong yu” and turned to Mrs. Namile telling her, “Yu kaikai kok blong man bilong yu” and walked away making offensive gestures and remarks, “what will you people do with me?”. Police also alleged defendant was under influence of drug and alcohol at the time and deliberately did this with no apparent cause or reasons, no provocation from the crowd or the couple and on several occasions before did the same to other innocent members of the public.

3. The Defendant is from Kumnate Village, Lumi District resides with parents at Kumu market area in Aitape Town and has been alleged heavily involved with drug and did that to people but the community is too scared to report him for fear of retaliation.

4. LEGAL CONSIDERATION

The use of obscene language is degrading and demeaning to respected citizens, more so, to married persons and it really needs moral leadership in communities and families to restore public manners with respect for dignities of others. In Papua New Guinea the cultural implication of such rotten and bad language on married couple is so serious, raising the issue of decency of the couple insulted, undermines their dignity and integrity in marriage and too shameful, too blunt with uncertain meaning attached to it depending on what social and customary back ground you from.

5. Legally, the preamble of the Constitution embraces PNG is a Christian nation and wants all Papua New Guineans to guard and pass noble tradition and moral values upholding respect and sense of human dignity towards others in diversified cultural communities we live as positive strength towards ethnic diversity we have.

6. However, bad language culture with use of dirty sex language expressions as in this case is very common here that suppresses the spirit of the Constitution directly challenging the freedom of conscience and expression citizens have with bad reflection on the moral decay certain communities in this country are going through which without intervention will defeat the spirit of the Constitution promoting and embracing Christianity, unity and respect for others. As such, the Court in considering sentence should strongly take remedial approach to stop such evil immoral behaviours and influences threatening peace, freedom of conscience and free expression.

7. Aitape is a small beautiful town, people generally know themselves but use of bad swears and insulting languages against innocent community, women and girls is so prevalent here resulted in several protest marches by churches and community women Advocate groups calling for police and District Administration to do something as swearing is becoming a real law and order matter in town badly affecting moral value and lives of families.

8. Though, I am unable to find any case authority to weight the degree of indecency in this rotten and bad insult, I am of the view the approach is a common sense one, it vary from custom to custom and place to place. Clearly Aitape people treat this insult as very shameful, so blunt and rude in strongest customary sense of the word when young people without respect use such abusive insults against respected citizens and elders. In fact, insult and behaviour of this sort according to my opinion has no place in the society, has no exceptions in law prohibited by section 7 of Summary Offences Act and is incomparably worse than physical assault.

9. It is small number of men doing this capitalizing on public ignorance, none police performance on ground, as well as, situation where the penalty provision of this particular offence also is too light not sending right signals in punishment out to persons like defendant and so they feel they can continue on with such dirty behaviour and disrespectful attitudes and nothing serious will ever happen.

10. SENTENCE

Having read the summary of facts, I accepted defendant’s guilty plea as plea properly pleaded and administered taking into account his statement in Allocutus that he was drunk, did it without a cause and this satisfies the elements of the offence.

11. In considering the sentence, I take into account Police pre-Sentence submission that defendant has the habit of insulting innocent unsuspected members of the public with use of such grossly obscene abusive insults as this. Although his guilty plea be taken in his favour to mitigate on sentence, Court considers his anti-social attitude and behaviour outweighs leniency that can be considered as the offence is committed against innocent members of the public threatening peace and so, is grave and serious when promoting violence and evil immoral behaviour and influences and had to be appropriately dealt with knowing as well that defendant also lives on drugs.

12. This offence carries a minimum fine of K300.00 or an imprisonment term not exceeding one (1) year. I am of the view that imprisonment term of one (1) year is adequate punishment to be imposed, but, not adequate enough as deterrence for persons of this character since this offence is very prevalent and consider additional remedial approach in punishment to deter the defendant by imposing restriction of movement orders pursuant to section 205 B (3) of the District Court Act to give community adequate protection they need and for public interest communities here to know that insults, obscene languages with disrespectful attitudes of this nature is not encouraged in town communities and can carry serious legal consequences.

13. I consider compensation under Criminal Law (Compensation) Act as additional punishment but decided against it since defendant is unemployed and don’t have ability to pay so will burden the family if family had to pay which will not help the defendant at all.

14. And so, for the sentence, I shall impose a twelve (12) month gaol term with additional orders under section 205 B (3) of the District Courts Act that upon completion of gaol term Defendant immediately returns to his home village Kumnate in Lumi District and not to return to Aitape for a period of five (5) years.

15. Accordingly, I ordered that defendant be sentenced to twelve (12) months in hard labour at Vanimo Correction Service. Orders pursuant to section 205 B (3) of the District Courts Act, I further ordered that defendant to return to his father and mother’s Kumnate Village in Lumi upon his release from Vanimo Correction Service and not to come near and within Aitape Town and its district boundary for a period of five (5) years. And that this Restriction of Movement order to expire by 17 April 2014.

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