DC2026

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

DCR 437-439/2011

BETWEEN

POLICE
Informant

AND

STEVEN MANDA, MAX NAKO & KEITH GEDABING
Defendant

Madang: J.Kaumi
2011: 28th April ,05th, 10th May,

SUMMARY-Offence of Making Noise-Madang Urban Local Level Government Public Nuisance Law, 1999-Section 13 (a)

PRACTICE AND PROCEDURE- Offence of Making Noise -Penalty- A fine not exceeding K100.00 or a term of imprisonment not exceeding 6 months. 

 PRACTICE AND PROCEDURE- The Environment Act 2000 specifically at section 39 (2) enables Provincial Governments to legislate its provincial policy relating to noise (subsection 1).

Three men pleaded guilty to having made noise at night and unduly disturbed the sleep of a normal person. 

 Held:
 (1). The Environment Act 2000 specifically at section 39 (2) enables Provincial Governments to legislate its provincial policy relating to noise (subsection 1).

(2). The MULLG Public Nuisance Law, 1999 was enacted by the Madang Provincial Government as a result

(3). The practice of the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing by other District Courts.

(4). People have a right to celebrate and be merry on occasion but must do so within reason, beyond this and celebration becomes nuisance, offensive and infringes on the constitutional rights (section 49) of others to enjoy peace and quiet in the privacy of their homes.

 (5). Section 49 of the Constitution is a qualified right and by its very nature has a double edged sword effect, cutting both ways, meaning it allows one to celebrate on one hand but on the same token allows another to lay a complaint if the former’s level of decibels reaches levels where it occasions undue distress, annoyance or irritation. 

(6). A repeat offender always attracts a stiffer sentence than a first time offender, the reason being retributive and punitive more than other sentencing reasons like deterrence, rehabilitation or restitution. State v Harisu [2006] N3168 (24/10/06), State v Sevese [2006] N3453 (23/1006), The State v Urika Iari (2006) N3238, State v Basil [2008] N3671 (5/09/08) 

Cases cited

State v Michael Kamban Mani (21/05/02) N2246 Kandakasi.J
The State v Raka Benson (2006) CR 447&450 Cannings.J
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
State v Harisu [2006] N3168 (24/10/06),Kandakasi.J
 State v Sevese [2006] N3453 (23/1006), Kandakasi.J
The State v Urika Iari (2006) N3238, Kandakasi.J 
State v Basil [2008] N3671 (5/09/08)Lay.J
Police v Benard Kwari DCR 1254/2009

Reference

Legislation

Constitution of PNG
Madang Urban Local Level Government Public Niusance Law, 1999

Abbreviations

The following abbreviations appear in the judgment
CHT		 Chapter
CR Criminal
DCR District Criminal
J		 Justice
K Kina
MULLG Madang Urban Local Level Government
N National
NC		 National Court
SECT		 Section
SUBS Subsection
SEN.CONST Senior Constable	
ST		 State
SUBS		 Subsection
V		 Versus

Counsel

Senior Constable Watakapura for the Police Prosecution.
Defendants in person.

INTRODUCTION

1. Kaumi. M. The defendants are charged with having made noise between the hours of 10pm and 7am of the 22nd April 2011, in the process of which, unduly disturbing the sleep of a normal person contrary to Section 13 Subsection (b) (i) of the Madang Urban Local Level Government Public Niusance Law, 1999 .I adopt the layout of judgment I used in Police v Benard Kwari DCR 1254/2009 in which I followed the outline of judgment of Cannings. J in The State v Raka Benson .
 
CONVICTION

2. The defendants pleaded guilty to those facts. I entered provisional pleas of guilty against them and after reading the Summary of Facts and confirming them with the defendants confirmed their pleas and convicted them as charged. 

3. They were convicted of unduly disturbing the sleep of a normal person by each and severally making noise between 10pm and 7am. 

FACTS

4. The relevant facts upon which I will proceed to sentence you are these: 

a.	That on the 22nd day of April 2011, at Marahon Cres, Newtown in Madang town, Madang Province, the complainant, Senior Sergeant Gage Dumok as a result of a boil over his right ear was feeling very sick and had gone to sleep around 8:00pm;

b.	 He was awoken between 10:00 – 10:30 pm by noise coming from over the hill about 20 metres away from his house;

c.	He knew the noise was from drunkards. He could clearly hear that it came from house where the defendants before the Court namely Steven Manda, Max Nako and Keith Gedabing were. They were the ones making noise from shouting, playing a car stereo and talking loudly;

d.	They had been drinking for a couple hours and disturbing and annoying people in the neighborhood. They were drunk after drinking SP bottle beer that appeared to be around four cartons. There were SP bottles everywhere on the lawn of their house;

e.	When they were approached and asked by Police why this beer party was on when it was time for Easter season, they could not give a genuine answer. They all admitted drinking all the beer and empty beer bottles were lying around and making noise, shouting putting on stereo music that annoyed many other neighbours;

f.	They were all arrested and charged under the Madang Urban Local Level Government Public Nuisance Laws, 1999. They are all on Police bail of K100.00 each. 

ANTECEDENTS

5. Your Antecedents provided to Court are as follows;-

a.	Steven Manda-You are 32 years of age, come from Sibisibi village, Angoram, East Sepik Province, married with one child and are unemployed and have no prior convictions;

b.	Max Nako-You are 37 years of age, come from Bhuala village, Bukawa, Morobe Province, are a single father with two children and are self employed with one prior conviction for being in possession of firearm in 2010 and was fined K150.00;

c.	Keith Gedabing-You are 32 years old, come from Bhula village, Bukawa, Morobe Province, are a single man, unemployed and have no prior convictions. 

ALLOCATUS

6. I administered the allocatus to the offenders where they were given the opportunity to address the Court on what matters the court should take into account when deciding on punishment A paraphrased summary of their response follows:

(a). Steven Manda- “ Mi tok sori long wanem samting em kamap mi brukim lo blo MULLG, mi marit na mi gat wanpela pikinini, 1st time long sanap long kot,mi rong na mi askim kot long marimari long mi. Mi nonap mekim dispel kain samting ken.

(b) Max Naku- “Mi sori long whole situation, na mipla kam long kot. Mi single na mi gat tupela pikinini na mi lukautim ol brada blo mi, I also assure the arresting officer that mipla ino exceedim level long limit long socialize, mi tok sori long kot.” 

(c) Keith Gedabing-“Mi tok sori long pasin we mipla mekim againsim lo. 1st time mipla mekim na lo I holim mi na mi reallisim mistake blo mi.”

SUBMISSION BY STATE

7. Sen.Const Watakapura made a verbal submission and a paraphrased summary of his response follows:-

(a.)	The offence for which the defendants have been charged is section 13(b) (1) of the MULLG Public Niusance Law, 1999 which enacted by the MULLG as a direct response to concerns raised by residents of Madang Town about the disturbance by the level of noise made mostly by drunkards;

(b.)	The facts of the charge are very reason why this law was enacted by MULLG; 

(c.)	And in the context of the neighborhood where the offence occurred it is clear that the defendants had absolutely no respect for people living in close proximity to them-this particular neighborhood has houses and churches all lumped together in one place and that is the reason why Police acted upon the complaint of the complainant and apprehended the defendants; 

(d.)	The court must impose a deterrent penalty to send out a message to the community that behavior like this was anti-social and not acceptable.

 OTHER MATTERS OF FACT

8. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State , (Jalina J; Mogish J Cannings.J )

ISSUE

9. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentences are in your case.

THE OFFENCE AND SENTENCING TREND

10. This issue can be decided by having regard to the sentence prescribed by the MULLG, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation. 

11 .The practice of the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing by other District Courts.

WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY MULLG?

12. The offender has been found guilty of an offence contrary to sect 11(a) of the Madang Urban Local Level Government Public Nuisance Law 1999. 

Section (13). OFFENCE TO MAKE A NOISE TO BE A NUISANCE

(a) It is an offence to make or permit to be made, any noise so as to be nuisance. 

Penalty: A fine not exceeding K100.00 or a term of imprisonment not exceeding 6 months. 

WHAT IS THE PROPER STARTING POINT?

13. Sentencing guidelines are handed down by District Courts whilst in the process of deliberating on matters before it for sentence. These guidelines are often coined as a starting point. Other District Courts then applies those starting point in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.

14. The immediate case before me is unique in the sense that the pertinent offence is a LLG one and therefore its jurisdiction is confined to the boundaries of the MULLG and corollary contraventions of its provisions can only be legally enforced by the Madang District Court and though enforcement and prosecution have occurred in this court in the past I have been unable to locate a suitable precedent to assist me so I will use the midpoint of 3 months or K50:00 as the starting point for the offence.

SENTENCING TRENDS

15. I have been unable to establish the sentencing trend for this type of offence due to the Madang District Court registry being unable to furnish me its records to examine for the said purpose.

SENTENCING GUIDELINES

16. I am therefore unable to ascertain what are the guidelines as to what are appropriate considerations to be taken on board in arriving at these sentences for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence.

17. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani  that:-

 (a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

 (b). Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

 (c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

 (d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

THE MITIGATING FACTORS

18. Before anything else, I take into account your respective personal backgrounds from your Antecedent Report.

 19. In addition to your respective family backgrounds, I also take into account in your mitigation first, your pleas of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victim of your offence to incur further costs and suffer inconveniences by coming into Court and testifying against you. 

20. Keith Gedabing you are a first offender in other words you have no prior convictions and I accept your expression of remorse as genuine and I accept Nako’s expression of remorse as genuine in light of his personal apology to the complainant and assurance that they would not in future exceed the noise level of socializing.

21. These are the only three factors that can be said in your favour

THE AGGRAVATING FACTORS

 22. The problem of noise pollution in overcrowded suburbia is one that sorely tests people’s tolerance levels and can create such waves of antipathetic outrage that often erupts into violence and that is why Parliament has legislated to address it, through the Environmental Contaminants Act 1978 and the Environment Act 2000.

 23. The Environment Act 2000 specifically at section 39 (2) enables Provincial Governments to legislate its provincial policy relating to noise (subsection 1).

 24. The MULLG Public Nuisance Law, 1999 was enacted by the Madang Provincial Government as a result and section 13 (b) defines ‘a noise as a nuisance for the purposes of this Law, if it occasions undue distress, annoyance or irritation to any person or persons without limiting the generality of the foregoing; a noise is a nuisance for purposes of this law, if (1) being made between 10pm and 7am, it unduly disturbs the sleep of a normal person.

 25. People living in crowded suburbia must learn to live and respect each other within the confines of the environment they find themselves in but obviously there are some who are not able to, hence these laws that have been made to cater for this obnoxious reveling minority.

 26. People have a right to celebrate and be merry on occasion but must do so within reason, beyond this and celebration becomes nuisance, offensive and infringes on the constitutional rights (section 49) of others to enjoy peace and quiet in the privacy of their homes. Section 49 of the Constitution is a qualified right and by its very nature has a double edged sword effect, cutting both ways, meaning it allows one to celebrate on one hand but on the same token allows another to lay a complaint if the former’s level of decibels reaches levels where it occasions undue distress, annoyance or irritation. 

 27. The behavior of the defendants’ falls into the minority category and this is an aggravating factor against them and their actions on the night of 22/04/11 were a classic, “dring olsem masta na spak olsem kanaka”.

 28. Secondly, the prevalence of this offence is an aggravating factor as well against them

 29. Thirdly with regard to the defendant Max Nako he has a prior conviction and this in itself is an aggravating factor against him personally as opposed to his two co-defendants. A repeat offender always attracts a stiffer sentence than a first time offender, the reason being retributive and punitive more than other sentencing reasons like deterrence, rehabilitation or restitution. State v Harisu , State v Sevese , The State v Urika Iari , State v Basil . 

SENTENCE

30. The defendant Keith Gedabing is fined K50:00 of which K50:00 is converted from his bail of K100:00 the balance being refundable. 

31. The defendant Max Nako is sentenced to 3 months imprisonment with hard labour which is wholly suspended upon he entering into a recognizance to be of good behavior for 12 months and his bail of K100:00 being refundable at the expiration of his period of recognizance. 

32. Upon application by Sen Const Watakapura the bail of defendant Steven Manda is forfeitured to the State and his matter struck out for his non appearance for his sentence today. 

33. No orders are made for compensation but the victim is quite at liberty to institute civil action to claim damages for the infringement of his rights as a result of the defendants’ unlawful actions.

Police Prosecutor: for the State 
Defendant in Person