Elias Padura v Stephanie Valakvi (2012) N4894

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 November 2012
• Citation: (2012) N4894
• Docket Number: OS NO 256 of 2012
• Court: National Court
• Year: 2012
• Judgement Number: N4894

Full Title: OS NO 256 of 2012; Elias Padura v Stephanie Valakvi (2012) N4894

National Court: Cannings J

Judgment Delivered: 15 November 2012

N4894

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 256 OF 2012

ELIAS PADURA

Plaintiff

V

STEPHANIE VALAKVI

Defendant

Madang: Cannings J

2012: 23 October, 8, 15 November

CONTEMPT – disobedience of court order – punishment – individual contemnor – maximum penalty not prescribed by law – starting point –mitigating and aggravating factors – whether committal to prison or fine is appropriate – sentence of six months imprisonment imposed

The contemnor was found guilty after trial of contempt of court for disobeying an order of the National Court. She assaulted her former de facto partner, the plaintiff, and his girlfriend in a public place, contrary to a court order that required her and the plaintiff to amongst other things refrain from threatening, harassing or instigating violence against each other and to give each other respect. A hearing was held to determine the punishment. The contemnor argued that payment of a fine of no more than K500.00 was sufficient punishment. The plaintiff submitted that committal to prison for 12 months was the appropriate punishment.

Held:

(1) There being no maximum penalty for contempt of court, it is useful to set a notional maximum having regard to written laws providing for punishment for similar offences. An appropriate notional maximum is committal to prison for two years or a fine of K5,000.00 or both.

(2) A useful starting point for punishment purposes is the middle of the range: committal to prison for 12 months or a fine of K2,500.00 or both. The court should then consider punishment imposed in equivalent cases and the mitigating and aggravating factors to assess the form and extent of the appropriate punishment.

(3) Most cases of the disobedience form of contempt of court have resulted in prison sentences of ten weeks to 18 months.

(4) Mitigating factors are: the contemnor did not engage in any contumacious conduct other than disobeying the order; she was under emotional stress; it was a spontaneous incident; she has co-operated with the court; no prior convictions; she has two young children to care for.

(5) Aggravating factors are that the contemnor: was guilty of a crime of violence; and breached the court’s order in a way that had an immediate and deleterious effect on other persons.

(6) The seriousness of the matter warranted a six-month sentence.

(7) The welfare of the children is a significant factor in deciding whether to suspend the punishment but no reason was advanced for it being a compelling factor. However the Court was obliged to take into consideration that the Basic Rights of the children are not prejudiced and the contemnor and the plaintiff had Basic Social Obligations to the two children. Suspension of the punishment was appropriate with strict conditions.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Bishop Brothers v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Doreen Liprin v The State (2001) SC673

Elias Padura v Stephanie Valakvi (2012) N4830

Eric Vele v The State (2002) N2252

Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10

John Rumet Kaputin v The State [1979] PNGLR 559

Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923

Manu Kovi v The State (2005) SC789

Newsat Ltd v Telikom PNG Ltd (2007) N3673

Peter Luga v Richard Sikani and The State (2002) N2286

Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448

Re Contempt of Court Proceedings against Valentine Kambori (No 3) (2003) N2490

Richard Sikani v The State and Peter Luga (2003) SC807

Ross Bishop v Bishop Brothers [1988-89] PNGLR 533

Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572

Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49

The State v Dominic Kurai (2008) N3435

The State v James Yali (2005) N2989

The State v John Rumet Kaputin [1979] PNGLR 544

The State v Justin Ipa (2008) N3439

Thress Kumbamong v The State (2008) SC1017

Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for an individual found guilty of contempt of court.

Counsel

W A Windi, for the plaintiff

T M Ilaisa, for the defendant/contemnor

15 November, 2012

1. CANNINGS J: Stephanie Valakvi has been convicted after a trial of contempt of court and this is the court’s decision on punishment. She is referred to in this judgment as ‘the contemnor’.

2. She was found guilty of deliberately disobeying an order of the National Court dated 18 May 2012 that gave effect to a statutory declaration between her and the plaintiff, Elias Padura, who is her former de facto husband and business partner, which evidenced an agreement as to the division and operation of two businesses that they had been operating jointly in Madang. The order also required her and the plaintiff to amongst other things refrain from threatening, harassing or instigating violence against each other and to give each other respect and to operate each other’s businesses peacefully.

3. The contemnor committed the offence of contempt of court on 22 June 2012 at the Interoil Service Station, Madang town. She became angered when she saw the plaintiff’s girlfriend, a young woman called Irish, sitting on the grass at the front of the service station while the plaintiff was in a vehicle inside the service station. The contemnor regarded Irish as an under-aged concubine, walked up to her, said words to the effect of ‘Irish, I have finally met you, why don’t you go finish your grade 8 schooling and do your own business?’ and slapped her on the face, causing Irish to walk away, followed by the contemnor. There was a commotion and the attention of members of the public was drawn to it. The Court accepted the plaintiff’s evidence and found that he ran in to pacify the contemnor and Irish, at one point coming between them but that, despite his telling her not to commit another contempt of court, the contemnor assaulted him, pulled his hair and cut his arm with car keys, drawing blood. A large crowd gathered and the contemnor incited the bystanders to “Fight him. Kill him!’ before he explained to the bystanders that the contemnor was not his wife any more. He got into his car and left the scene quickly in fear of his life. The contemnor failed to comply with the order of 18 May 2012 in two respects:

· by the assault on the plaintiff’s girlfriend, in a public place and in the presence of the plaintiff, she was instigating violence against the plaintiff and not giving respect to the plaintiff; and

· by the assault on the plaintiff she was instigating violence against the plaintiff and not giving respect to him.

4. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Elias Padura v Stephanie Valakvi (2012) N4830.

ANTECEDENTS

5. The contemnor has no prior convictions.

ALLOCUTUS

6. The contemnor was given the opportunity to address the court on the question of punishment. She said:

I would like the Court to consider that I have two children under my care. One is a little girl aged 14 months and my little boy is seven years old. I am very concerned about their welfare and well being.

PERSONAL PARTICULARS

7. A pre-sentence report was obtained from the Community Correction and Rehabilitation Service. The contemnor is 32 years old. She recently separated from her de facto partner of 12 years, the plaintiff. She has two children in her care. She lives in Madang and her parents are also here. She lives in a permanent house with three bedrooms. She and her children share the house with three adults. She has four brothers and two sisters. Family relationships are strong and stable. She has a grade 12 education and graduated with a Diploma in Business Management in 2000 from the International Training Institute, Port Moresby. She is currently doing a Bachelor’s degree at Divine Word University. She is a self-employed businessperson. She owns and operates Summit Secretarial Services in Madang. Her financial position, though not buoyant, is sound. She is in good health. She accepts the blame for the incident (of 22 June 2012). She is willing to reconcile with the plaintiff and to cooperate with Probation officers. She is considered suitable for probation.

8. She is a member of the Anglican Church and her parish priest, Father Peter Hunter, Holy Trinity, Madang, has provided a written character reference, stating that she is of pleasant personality and is well liked in the community and is actively engaged in Church activities, describing her as a young woman with drive and energy and a determination to succeed. Her marriage breakdown has had a devastating effect on her as she feels abandoned with two small children and nowhere to go. Father Hunter is very concerned about the effect of her present predicament on her two children. Her...