Restriction of movement is Papua New Guinea’s own sentencing device, designed for a country where the trouble a person causes is often tied to the town he has drifted to rather than the village he came from. The District Court must think about it every time it sentences.
The provision
(1) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a District Court may, in addition to any other punishment, also impose restriction of movement in accordance with this section.
(2) When a District Court is considering the punishment to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.
(3) Where a person is convicted of an offence, the Court may, in addition to or instead of any other punishment, order him (a) not to come or be within such part of the country as the Court specifies; or (b) to be returned to his home, during such period, not exceeding five years, as is specified.
(4) An order may be subject to exceptions and conditions, including a condition requiring the person to report at regular intervals to a District Officer, Probation Officer or member of the Police Force.
(5) A return-home order does not prevent the person from leaving the country.
Two kinds of order
| Exclusion (s 205B(3)(a)) | Return home (s 205B(3)(b)) | |
|---|---|---|
| Effect | Must not come or be within the specified part of the country | Must go to and remain at his home as specified |
| Typical use | Keeping an offender out of a town, a market, a settlement or a specific area near the victim | Sending an offender with no ties to a town back to his village and family |
| Overseas travel | Not addressed | Expressly not prevented (s 205B(5)) |
| Maximum period | Five years | |
What “home” means
Section 205B(8) defines home widely, so that the Court has a choice: the place where the person has lived continuously for the five years before the offence; an area of customary land on which he may by custom build or garden, in his own right or through his spouse or another relation; customary land of a linguistic or cultural group with which he or his spouse has usage rights; land leased for at least 12 months or held in freehold by him or his spouse; or, where none of those applies, any other place with which he or his spouse has connections such that it should reasonably be regarded as his home. The Manual describes this as giving the magistrate considerable discretion, and the order should name the place precisely.
Breach
A person who, without reasonable excuse (proof of which is on him), contravenes or fails to comply with an order is guilty of an offence. Penalty: imprisonment for a term not exceeding six months. A person convicted of that offence is liable to be again removed from, or returned to, the specified place, or a new order may be made.
The burden of proving a reasonable excuse, such as attending a funeral or a court hearing, is on the defendant, consistent with section 64. The breach offence is a simple offence tried in the District Court in the ordinary way.
The constitutional limit
The Constitution guarantees every citizen the right to freedom of movement, to move freely throughout the country and to reside anywhere, subject to laws that, among other things, deal with persons convicted of offences. Section 205B is such a law. The Manual’s caution is that any order not strictly authorised by the section will be unconstitutional: an order for longer than five years, an order excluding a person from “all towns” without specifying the part of the country, or an order made without a conviction, is beyond power. The order must also be proportionate to the offence; it is a punishment, and section 205B(2) requires it to be an appropriate one.
The Court must consider it in every case
Section 205B(2) is unusual in requiring the Court to turn its mind to a particular punishment whether or not anyone asks. The Manual advises magistrates to note in the file that they considered it. The consequence for a defendant is that restriction of movement can be imposed even where the prosecutor did not seek it, and a defendant with strong reasons for staying where he is, such as employment, schooling of children or medical treatment, should say so at sentence. A defendant who welcomes a return-home order as an alternative to custody should say that too.
Related orders
Restriction of movement is a sentence and needs a conviction. Where the aim is to keep a person away from a particular individual rather than a place, a family protection order under the Family Protection Act 2013 can prohibit a family member from approaching or communicating with the complainant or being near specified premises, without any conviction. A surety to keep the peace under Part X is the older equivalent for non-family threats. Neither carries the five-year exclusion from an area that section 205B allows.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.