Stuart William Conway v Charlene Sunita Samuel (2020) N8373

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 17 June 2020
• Court: National Court
• Citation: (2020) N8373
• Docket Number: OS No 622 of 2014 (CC3)
• Year: 2020
• Judgement Number: N8373

Full Title: OS No 622 of 2014 (CC3); Stuart William Conway v Charlene Sunita Samuel (2020) N8373

National Court: Makail, J

Judgment Delivered: 17 June 2020

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] 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. The offences you were convicted of were:

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...