State v Tutupsel [2009] PGDC 7; DC844 (25 May 2009)

DC844

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 148 of 2009

THE STATE

v.

RIMUX TUTUPSEL

Tabubil: P. Monouluk, SM
2009: 22, 25 May

SENTENCE

HIV/AIDS MANAGEMENT AND PREVENTION ACT – Sentence – Unlawful stigmatization of a person affected by HIV/AIDS – Sentence – Penalty under s. 27 of the Act – Remarks made in public – Remarks made in bad faith – Remarks unlawful – Remarks has potential for present and future consequences – Victim entitled to the full protection of the law – Guilty plea – Nil previous conviction – Parliament views unlawful stimatisation as serious abuse with far reaching consequences – Appropriate penalty – Deterrent penalty

PARTICULAR OFFENCE – Unlawful stigmatisation of a person affected by HIV/AIDS – Section10 (1) of the HIV/AIDS Management and Prevention Act 2003 – Defendant publicly called the victim AIDS positive – Remarks direct and explicit – Remarks made in bad faith as a result of ill-will – Remarks unlawful – Persons infected or affected by HIV/AIDS entitled to confidentiality and privacy under the law – Victim underwent HIV test procedure – Outcome of test not a matter for court to enquire into – Victim a person affected by HIV/AIDS therefore entitled to the full protection of the law – Parliament serious about protecting rights under the Act – Deterrence penalty takes priority over defendant as a first time offender.

References

1. Constitution, s. 49
2. HIV/AIDS Management and Prevention Act 2003, ss. 2,10(1)(2),18,19, 27(1)(e), 28.
3. Summary Offences Act Chp. 264, s.7
   

Counsel
Senior Constable Paul Irie for the State
Defendant in person

25th May, 2009.

1. P. Monouluk, SM: The defendant Rimux Tutupsel of Bak village, Oksapmin, West Sepik Province appeared before me on the 22nd May 2009 and pleaded guilty to a charge of having unlawfully stigmatised a female person affected by HIV/AIDS contrary to Section 10(1) of the HIV/AIDS Management and Prevention Act 2003. The matter was subsequently adjourned to today for a decision on the type of penalty deemed fit.

2. This is my first time to deal with an offence under this 2003 Act (supra). I am not sure about the experiences of my other colleague judges and magistrates judging from the absence of published judgments both in the higher and lower courts. The matter arose out of a three month extra marital affair that turned sour when the female victim (initial S.D for confidentiality reasons) decided to call it quits and left for another man. Disgusted at being dumped the defendant, who was a married man himself, began stalking the victim in and around Tabubil.

3. On the date of the offence in April 02nd 2009 the defendant confronted the victim immediately after she had left the Tabubil Hospital following a HIV/AIDS test procedure and publicly abused her, among others, saying: "Yu HIV positive, yu gat AIDS na yu no go long skul inap tripela wiks" (you are HIV positive that you have AIDS virus and therefore you did not attend school for almost three weeks). The matter was brought to the attention of the police which proceeded to have the defendant arrested and charged with unlawful stigmatisation. On Friday 22nd May 2009 the defendant appeared before me and pleaded guilty to one charge of unlawful stigmatisation.

4. The defendant, who reaffirmed the statement of facts presented by the State, submitted in mitigation that if the court pleases he be allowed to pay a court fine and also make restitution to the victim. The State, however, said that the court should impose a deterrent penalty because such behaviour has the tendency to make the public shun victims of such abuse. It added that it is not the first time remarks of such nature were made to others and therefore the court must impose a penalty that will deter the defendant from reoffending and at the same time warn other like-minded of the possible consequences that may befall them should they follow suit.

5. Before I can pass sentence may I first review the law under which the defendant had breached. Section 10(1) of the Act (supra) is in these terms:

"10. UNLAWFUL STIGMATISATION.

(1) Subject to Subsection (2), it is unlawful to stigmatise a person on the ground that the person is infected or affected by HIV/AIDS."

6. This provision makes it unlawful for anyone including corporate entities to stigmatise a person except where it is allowed by law as clearly marked out under s.10(2) where the remarks/report, etc is deemed fair; or privileged; or made in good faith. When remarks such as this are made outside the ambit of the law as seen today then it becomes unlawful and the offending party stands to face the penalties prescribed under s. 27(1)(e) of the Act (supra). The provision is in these terms:

"27. UNLAWFUL ACTS.

(1) An unlawful act under this Act –

(a) ...

(e) is an offence to which the penalty is –

(i) in the case of a corporation – a fine not exceeding K10,000.00; and

(ii) in the case of a natural person – a fine not exceeding K5,000.00 or

imprisonment for a term not exceeding three years, or both."

7. What can we make of this? It is clear that Parliament has realised the potential threat HIV/AIDS can pose to the country as a whole in terms of socio-economic consequences and the real likelihood of those being affected one way or the other being marginalised. With that in mind and having passed the National AIDS Council Act 1997 which established the PNG National AIDS Council as a vehicle to implement government policy in respect to HIV/AIDS, Parliament, five years later, went on to pass the 2003Act reaffirming its commitment this time in protecting the rights of people affected or infected with HIV/AIDS making it unlawful for any person who shows disrespect or contempt to those the subject of the Act (supra).

8. What does this mean? For the courts it means that when considering issues under the Act (supra) particularly in respect to unlawful acts, we must bear in mind the intention of the Parliament and the expectation it has in seeing that its policies in forms of laws such as those mentioned be given full effect with no room for ambiguity and uncertainty and those who stand condemned or interested may know and appreciate the consequences of not adhering to perceived legal expectations.

9. It is clear from the evidence that the victim was returning home after her HIV/AIDS test procedure at the local hospital. Whether or not she was found to be positive or negative is a matter entirely within the confidence of her and those at the hospital who deals with her and is not the business of the defendant, let alone this court to inquire into.

10. Indeed the victim was a person affected by HIV/AIDS. Let there be no question that the victim is not referred to as being infected as some may misunderstood, but rather as being affected within the meaning of a ‘person infected or affected ...’ as defined under s. 2 of the Act (supra) ‘as a person who has had a HIV test’ and nothing more. As I have said earlier, it is not my business to seek after the outcome of the test.

11. Unlike the defendant, the victim had done an honourable thing to have summoned courage to voluntarily submit herself to such a mind wrenching test for the good of her new partner, which I believe many should follow her example before engaging in sexual relationships. The victim, like anyone else, must feel free and secure to undergo a test with confidence that his/her identity and privacy will be respected and protected as guaranteed by s. 49 of the Constitution and ss. 18 and 19 of the Act (supra) and those who by virtue of employment or by default of some sorts have access to such confidential information are duty bound to keep the code of silence so to speak, failure of which can result in legal remedy of some sorts.

12. It is obvious that the defendant had information that the victim was returning from a HIV/AIDS test. It is not clear where he obtained such information from nor is there evidence he may have received such from the hospital staff, however it would seem that because he had been stalking the victim there is a possibility that he may have seen her visiting the designated clinic for him to reached such a conclusion and prompted by ill-will he went on to make his public outburst.

13. There is no doubt that the remarks made against the victim in that circumstance were unlawful. By publicly calling out to her as being AIDS positive clearly contravened s. 10(1) of the Act (supra). The remarks were direct and explicit and made within the town limit of the Tabubil shopping center between the hours of 11 am and 12midday where people usually move back and forth for shopping, etc. It is not denied by the defendant that the remarks were made to discredit the victim in the presence of her relative and the public.

14. The case may end today however the victim may be subjected to further abuses, ridicules and stigmatisation elsewhere because of this unwarranted publicity. The flow-on effect of those remarks and the amount of damage it may cause to the victim is anyone’s guess. It may not be that serious to a single person but may have a different result to a person who has an existing relationship or is contemplating one. It may even cause suspicion and rift in her new relation and there may well be more possible negative effects to her and those near her that may not be obvious at this stage.

15. The defendant, like many, appears to have little restraint with the use of his tongue especially when motivated by ill-will and evidence show that he is selfish and does not care about the consequences of his indiscretion. I say this because he was quick to use his tongue to bring about destruction and calamity to the victim; he was quick to ask for leniency but was slow, if not showed no contrition or remorse to the person who needs it most. While he had offered restitution to the victim, I must say that restitution without contrition and remorse is meaningless and only goes to bring to fore the real attitude and feeling behind the defendant towards the victim’s predicament.

16. It is clear that the Parliament recognises the consequences unlawful stigmatisation and even discrimination may have on individuals, their families and those around them. It is mindful of the pain, the hurt, the suffering and the irreparable damage victims may have to endure as a result of this socially unacceptable behaviours that is why it stressed in various provisions of the Act (supra) the importance of confidentiality and privacy and when they are deliberately breached then those who stand guilty will surely face up to the severe penalties as stated above and/or the victim may further sue for relief under s. 28 of the Act (supra).

17. I am reminded that the defendant had sought leniency from the court offering to pay a court fine and to make restitution to the victim. The State, on the other hand, had sought a deterrent penalty of K300.00. I am mindful of the defendant’s antecedent report that he is married with no children at this stage. He is unemployed and lives in a nearby settlement with his wife. He has no previous conviction on record; nevertheless the victim had indicated in court that she left him because he was an abusive person. He also pleaded guilty to the charge which is a credit to him for making it easier for all of us.

18. I understand that sentences in criminal proceeding such as this has about fourfold effects namely retribution – to punish the offender for his bad behaviour; and deterrence – to discourage the defendant from reoffending and those others from doing the same; and restraint – to take away dangerous offenders away from the community; and rehabilitation – to give appropriate training to offenders so that they may return a better person.

19. I must admit that given the circumstances the State rightly asked for a deterrent penalty to be imposed. This is one such case where I believe the notion of deterrence must take priority over the defendant as a first time offender to clearly indicate the disapproval the law has over such behaviour with the desire to see less of such offences coming through; however I am not happy with the State’s suggestion of K300.00 as fine which I will explain later.

20. Like the State, I am inclining to impose a penalty with deterrence in mind. I say this because the amount of penalty fine for corporate entities at K10,000.00 and K5,000.00 for individuals and/or imprisonment up to three years indicates the seriousness Parliament places on such offences and that is why it made sure the courts are given wider discretions as seen in those levels in penalties.

21. Furthermore, the consequences of such indiscretion, as seen above, are far reaching; the victim may continue to be shunned or ridiculed, her family and friends may also face the same treatment and even in death her surviving relatives may continue to suffer therefore it would be correct to say that the Parliament may want to see the imposition of penalty or ranges of such to be strong and loud enough to send an unequivocal message to the defendant and the community at large that any repetition of such behaviour, whether by the defendant or those of his type will be met with indecisive firmness from the courts.

22. Given these possible consequences I must reject the State’s idea of a deterrent penalty of K300.00 as I believe it’s submission lack foresight and is ignorant of the ideals behind the Parliament passing such a law. Had this been seen as an ordinary offence of abuse then Parliament would not have had it specifically covered under the Act (supra) but would have left it to be dealt with as a minor abuse under s. 7 of the Summary Offences Act Chp. 264. This is not the case. The Parliament sees it otherwise therefore such seriousness must be reflected in the way courts are to deal with in instances of breach.

23. Based on these assessments, I had initially made up my mind to imprison the defendant, however he must consider himself lucky as I am reminded of his past clean record and his admission of the offence thus I have opted instead for a monetary penalty for now and bearing in mind what I have said concerning the seriousness of the offence and its consequences I now penalise the defendant in this manner:

(a) that he pays a fine of K2,000.00 within 07 days; and

(b) that he calls a meeting within 14 days between his relatives and those of the victim and does the following:

(i) that he apologises to the victim in their presence; and

(ii) as offered by himself, that he pays K1,500.00 to the victim; and

(c) that he not harassed the victim in any form or manner and to maintain peace at all times for the next twelve months ending 25th May 2010.

Orders accordingly.