N4188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 582 OF 2010

IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

DAVID TIGAVU
Contemnor

Madang: Cannings J
2010: 17, 20 December

PUNISHMENT

CONTEMPT – contempt committed outside courtroom, within precincts of court – threatening and inciting violence against parties – threatening and abusing lawyers – threatening and abusing witnesses – punishment – three contempt offences – sentencing principles for multiple offences – whether committal to prison or fine is appropriate – sentence of 12 months imprisonment imposed.

The contemnor was found guilty of three counts of contempt of court for instigating an incident outside a courtroom, within the precincts of the National Court: (1) threatening and inciting violence against and between parties to ongoing court proceedings, (2) threatening and abusing lawyers involved in those court proceedings, (3) threatening and abusing persons who may be witnesses in those proceedings. A hearing was held to address the question of 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 of the present case to assess the form and extent of the appropriate punishment for each offence.

(3)	As the contemnor had been convicted of multiple offences, normal criminal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle should be applied.

(4)	Mitigating factors are that the contemnor was under pressure from the members of his organisation at the time of the incident; did not carry out the threat of violence against the person; did not prolong the threats once instructed by courthouse security to stop; apologised soon after the incident; expressed genuine remorse; co-operated with the court; has no prior convictions; has a serious medical condition.

(5)	Aggravating factors are that the contemnor was guilty of instigating an incident that could have erupted into a riot; severely interrupted the peace, order and sanctity of the court; showed gross disrespect and disregard of the Court, its authority and processes.

(6)	The seriousness of the matter warranted committal to custody for a period of 12 months on each count.

(7)	As the direct, physical victim in counts 1 and 3 was the same person, the punishment for those counts should be served concurrently, but as the direct, physical victims in count 2 were different, the punishment for count 2 should be served cumulatively to counts 1 and 3. The total potential punishment was 2 years imprisonment.

(8)	Under the totality principle, taking into account, again, the strength of the apologies and the contemnor's medical condition, the total punishment was reduced to 12 months imprisonment.

(9)	Suspension of the punishment was not appropriate as it would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment.

(10)	Accordingly the contemnor was committed to custody for a period of 12 months.

Cases cited

The following cases are cited in the judgment:

Augerea v Tigavu (2010) N4185
Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
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
Mase v The State [1991] PNGLR 88
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
Public Prosecutor v Kerua [1985] PNGLR 85
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 OS No 765 of 2007, 15.07.09
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
Yap v Tan [1987] PNGLR 227

PUNISHMENT

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

Counsel

N Goodenough, for the plaintiff
B W Meten, for the contemnor

20 December, 2010

1. CANNINGS J: The contemnor, David Tigavu, has been convicted of three counts of contempt of court and this is the court's decision on punishment.

2. The offences were committed in the course of an incident outside the courtroom of the National Court at Madang on Thursday 23 September 2010. Soon after the court adjourned at about 12 noon and those involved in the court proceedings, lawyers and members of the public left the courtroom, there was a commotion outside, which the contemnor instigated. He (1) threatened and incited physical violence against and between parties to ongoing court proceedings, WS No 202 of 2010; (2) threatened and abused lawyers who were involved in those court proceedings and (3) threatened and abused a person who was a witness in those court proceedings.

3. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Augerea v Tigavu (2010) N4185.

ANTECEDENTS

4. The contemnor has no prior convictions.

ALLOCUTUS

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

I apologised for this incident soon after it happened, both at the courthouse gate and in my letters to the lawyers and to the court. I again apologise to the court and to your Honour, to the courthouse staff, to the lawyers and to everyone who may have been offended by my conduct. It is my first time to be before the court for anything like this. A lot of us have been put under tremendous pressure by the court proceedings on the DSTP (deep-sea tailings placement system), especially the people of Kurumbukari, who I represent. This incident was not planned. There were a lot of people at the courthouse and the atmosphere was tense. I was provoked by [the lawyer for one of the parties] Tiffany Nonggorr taking photos of me and my group, and that is how the argument started; and the lawyers also argued with me.

PERSONAL PARTICULARS

6. David Tigavu is 48 years old, and is married with 13 children. He is the sole breadwinner of the family. He has been chairman of the Kurumbukari Landowners Association, a group of customary landowners in the Bundi area of Madang Province (the site of the Ramu Nickel mine) who have not been happy about the delay to commencement of the mining project, which they believe has been caused by the court proceedings, WS No 202 of 2010.

7. He has a serious medical condition. He has a 12-year history of type II diabetes complicated by bilateral retinopathy. He suffers from hypertension and chronic anaemia and renal failure.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the same sort of decision-making process that I set out in Sr Dianne Liriope v Dr Jethro Usurup OS No 765 of 2007, 15.07.09, a case in which a contemnor, the CEO of a general hospital, was sentenced to six months imprisonment for contempt of court for disobeying a court order not to take disciplinary action against a nurse without the leave of the court. Further steps in the process are added here to accommodate the fact that the contemnor is being punished for multiple offences and, in that regard, normal criminal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle will be applied. Nine steps are involved –

•	step 1: what is the maximum punishment?
•	step 2: what is a proper starting point?
•	step 3: what punishment has been imposed in equivalent cases?
•	step 4: what are the mitigating and aggravating factors?
•	step 5: what is the appropriate form of punishment?
•	step 6: what should the extent of the punishment be for each count?
•	step 7: should the punishment be served concurrently or cumulatively?
•	step 8: what is the effect of the totality principle?
•	step 9: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

9. The law under which this matter has been prosecuted – the National Court Rules – does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) simply states:

Where the contemnor is not a corporation the Court may punish contempt by committal to prison or fine or both.

10. The court therefore has a very wide discretion as to punishment. In deciding how it should be exercised it is useful as I suggested in Newsat Ltd v Telikom PNG Ltd (2008) N3673 to set a notional maximum. Courts, generally, look first at the maximum penalty when deciding on a sentence for a criminal offence, then say that the maximum should be reserved for the worst category of cases and then assess how the case of the offender being sentenced compares with the worst case category (Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49).

11. How do you set a notional maximum for contempt by an individual? A useful approach is to look at other laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies. Some of these laws are shown in the table below.

TABLE 1: LAWS PROVIDING FOR PUNISHMENT FOR CONTEMPT

No	Institution 	Law	Punishment 	
1	Ombudsman Commission	Organic Law on the Ombudsman Commission, Section 32; Organic Law on the Duties and Responsibilities of Leadership, Section 33	3 months imprisonment or 
K500.00 fine	
2	Leadership Tribunal	Organic Law on the Duties & Responsibilities of Leadership, Section 33	3 months imprisonment or 
K500.00 fine	
3	Salaries and Remuneration Commission	Salaries and Remuneration Commission Act, Section 18	3 months imprisonment or 
K500.00 fine	
4	National Parliament	Parliamentary Powers and Privileges Act, Section 7	6 months imprisonment or 
K400.00 fine	
5	Any court or any person authorised by law to make a lawful order	Criminal Code, Section 206 (note: the offence is 'disobeying a lawful order')	1 year imprisonment	
6	Commission of Inquiry	Commissions of Inquiry Act, Section 11	2 years imprisonment or 
K5,000.00 fine or both	

12. Contempt of court is a very serious matter. It amounts to an interference in the administration of justice and a subjugation of the Rule of Law (Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448). The Constitution recognises the significance of contempt of court as an offence in various provisions. Section 37(2) states generally that nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law – but creates an exception in the case of contempt of court. Sections 160(2) and 163(2) provide that the Supreme Court and the National Court are superior courts of record, each one having "the power to punish the offence against itself commonly known as contempt of court".

13. Contempt of the National Court must in my view be treated with at least as much seriousness as the most serious of the statutory contempt offences, which is the offence created by the Commissions of Inquiry Act. Therefore the appropriate notional maximum penalty in the case of an individual contemnor is two years imprisonment or a fine of K5,000.00 or both.

14. This is a notional maximum. There might be a case in which the nature and extent of the contempt warrant sterner punishment.

STEP 2: WHAT IS A PROPER STARTING POINT?

15. Judges often refer to a starting point when they are determining a sentence, ie a reference point against which the case before them can be assessed. The judge assesses whether the case is more, or less, serious than the starting point. If it is, to what extent is it more serious or less serious?

16. The Supreme Court often sets starting points when giving sentencing guidelines in the course of deciding criminal appeals. For example, the Court gave detailed guidelines for the homicide offences of manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789. Sentencing starting points have not been provided for in all criminal offences, however, and in such cases, the National Court is inclined to set its own (The State v James Yali (2005) N2989).

17. In the case of contempt of court no punishment guidelines have been given by the Supreme Court and no starting points have been set by the National Court. I propose to do what I have done when faced with a similar scenario when sentencing for other offences: set a starting point in the middle of the available range (The State v Justin Ipa (2008) N3439, The State v Dominic Kurai (2008) N3435).

18. The starting point I use is thus one year imprisonment or a fine of K2,500.00 or both.

19. With that starting point in mind, I will now consider the form and extent of punishment that has been imposed in previous cases and the mitigating and aggravating factors of the present case.

STEP 3: WHAT PUNISHMENT HAS BEEN IMPOSED IN EQUIVALENT CASES?

20. In selecting equivalent cases to consider, it is important to take into account the nature of the contempt committed by the contemnor. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court can be constituted by a number of different sorts of conduct, the main ones being:

1	Improper behaviour in a court room during a hearing; the "contempt in the face of the court" situation;

2	Endeavouring improperly to influence participants in proceedings;

3	Contempt by publication, notably publishing allegations that tend to undermine public confidence in the administration of justice; and publishing material which tend to prejudice the fair trial of a case; and

4	Failure to comply with an order of the court or undertaking given to a court – the "disobedience contempt"; and

5	Other forms of interference with the administration of justice, including failing to carry out one's duties as a court officer and taking reprisals on witnesses and court officials on account of what they have said or done in court.

21. The present case falls within category No 5: the contemnor has been found guilty of three counts of a 'reprisal' contempt. The difficulty this presents is that there are no readily available PNG precedents. The most common form of contempt is category 4, a disobedience contempt, and I consider that the cases set out in table 2 provide the most appropriate yardstick.

TABLE 2: PUNISHMENT FOR DISOBEDIENCE CONTEMPT 
BY INDIVIDUALS

No	Case	Details	Punishment	
1	The State v John Rumet Kaputin [1979] PNGLR 544,
Greville-Smith J	Contemnor, a Member of Parliament, failed to comply with National Court order directing him as company secretary to lodge annual return within 3 months. (Appeal against conviction and punishment dismissed: John Rumet Kaputin v The State [1979] PNGLR 559.)	10 weeks imprisonment
	
2	Yap v Tan [1987] PNGLR 227, Hinchliffe J	Contemnor, a businessman, wilfully disobeyed orders of the Supreme Court requiring him to cooperate with the receiver of a company – convicted on three counts.	K5,000.00 x 3 = K15,000.00, in default 12 months imprisonment	
3	Bishop Brothers v Ross Bishop (1989) N690, Bredmeyer J	Contemnor, a businessman, disobeyed a National Court order requiring him to allow other persons on to business premises by refusing access – convicted on two counts. (Appeal against conviction upheld: Ross Bishop v Bishop Brothers [1988-89] PNGLR 533.)	K500.00, in default 3 months imprisonment;
6 months imprisonment, suspended	
4	Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47,
Sheehan J	Contemnor, Managing Director of the Forestry Authority, disobeyed an interim National Court order that restrained him from closing the plaintiff's logging operations by giving notice to the plaintiff to stop its operations.	Order for costs against contemnor	
5	Peter Luga v Richard Sikani 
(2002) N2286, Sakora J	Contemnor, Commissioner of the Correctional Service, failed to comply with a National Court order to reinstate a dismissed officer. (Appeal against conviction upheld: Richard Sikani v The State (2003) SC807.)	6 months imprisonment
	
6	Re Valentine Kambori (No 3) (2003) N2490,
Sevua J	Contemnor, a Departmental Head and Chairman of the National Forest Board, convicted on two counts: (1) breaching bail condition by travelling overseas without the leave of court and (2) failing to comply with undertaking to Court that he would arrange payment of judgment debt.	6 months imprisonment, suspended; K2,500.00 fine
	
7	Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, Sevua J	Two contemnors, purporting to be landowner representatives, fraudulently obtained a cheque for K500,000.00, being timber royalties, and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating to the payment – they pleaded guilty to contempt.	18 months imprisonment x 2	
8	Sr Dianne Liriope v Dr Jethro Usurup OS No 765 of 2007, 15.07.09, Cannings J	Contemnor disobeyed an order of the National Court not to take disciplinary action against nurses who had been involved in strike action without the leave of the Court, by charging and then dismissing a nurse, without seeking the court's leave, over a disciplinary matter.	6 months imprisonment	

22. In five of the eight cases, the primary punishment was committal to custody and in two cases committal to custody was the default penalty. 
It was only in Concord v Nen that the consequence of the contempt was a relatively lenient order for payment of costs; and that was because the disobedience was not considered intentional. The consistent practice of the National Court has therefore been to treat a conviction for a disobedience contempt as warranting committal to custody.

23. It is also relevant to consider the leading case of Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448. The contemnor, the Minister for Justice, was convicted of contempt for publishing a document that scandalised the Supreme Court, so it was a category 3 case, and sentenced to eight months imprisonment.

24. It is clear that imposing a term of imprisonment as punishment would be consistent with the approach that has been taken by the National Court and the Supreme Court over the last 30 years.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

25. I will now highlight the mitigating and aggravating factors, as they will ultimately govern the appropriate form and extent of the punishment.

Mitigating factors

1	The contemnor was under pressure from the members of his organisation at the time of the incident and acted in the heat of the moment to having photos taken of himself and his group.

2	He did not carry out the threats of violence that he made.

3	He did not prolong the threats once instructed by courthouse security to stop.

4	He apologised soon after the incident.

5	He expressed genuine remorse.

6	He has no prior convictions.

7	He has a serious medical condition.

Aggravating factors

1	The contemnor was guilty of instigating an incident that could have erupted into a riot.

2	He severely interrupted the peace, order and sanctity of the Court.

3	He showed gross disrespect and disregard of the Court, its authority and processes.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

26. Should the Court commit the contemnor to prison? Or impose a fine? Or impose both forms of punishment?

27. Although no actual physical violence was committed by the contemnor, I consider that the threats of violence which he made, and the potential for serious physical violence which he created, make this tantamount to commission of a violent crime, and this makes a term of imprisonment an appropriate punishment. A prison term would provide more of a deterrent than a fine. Deterrence is important as every violent incident of this nature outside a courtroom amounts to a threat to the authority of and respect for the courts. A prison term will also much more effectively signal the community's condemnation of the contemnor's conduct than a fine.

28. There is always a chance that a fine will be paid by someone other than the offender; and if that happens many people will feel that the offender has not really been punished at all – his crime is paid for by someone else.

29. Imposing a fine would not, I consider, make the contemnor personally responsible for what he did. He must bear personal responsibility for what he did and he must be punished in a way that makes him personally responsible and is seen by the community to be fair and appropriate. These are the sorts of considerations that led Greville-Smith J in the National Court in Kaputin's case to say:

I have considered … imposing a fine in this case, but have come to the conclusion that a fine, even a very substantial one, would not sufficiently reflect the seriousness of this matter, the gravamen of which is disobedience for a long period of an order of this Court. The impact of a fine is often too indeterminate and too diffuse. Often the money is supplied by others, at least in the short term, and is not repaid for a long time, if ever, or creditors or dependants or kinsmen of the accused suffer by its payment.

30. In Luga v Sikani Sakora J focussed on the seriousness, nature and extent of the contemnor's contempt and reached the considered view that committal to custody was a far more appropriate punishment than a fine. Though an appeal against conviction was upheld the Supreme Court said nothing on the appropriateness of the form or extent of the punishment (Richard Sikani v The State and Peter Luga (2003) SC807). I regard the considerations spelt out by Sakora J as highly persuasive and good law.

31. Committal to custody should not be regarded as a drastic form of punishment or something that needs to be reserved for the worst case categories of contempt. I agree with the sentiments expressed by Sevua J in Kambori's case:

Whilst the Court is very mindful of who and what he is, it must be highlighted in this case, as it has been in numerous other cases that contempt of court is a serious matter. And while the Court will consider a person's interest on the circumstances of his case, the Court does not stop to look and select that the person should not go to prison because he is a politician or a senior civil servant or bureaucrat. It is one law for everybody.

I have especially taken into account the submission that the contemnor be spared a prison term. But I am of the view that the Court must not allow its authority, due process and its administration of justice to be ridiculed and flouted. When this happens, it is my view that the Court must be able to deal with the contemnor sternly and decisively.

For these reasons, I consider that a custodial sentence is warranted to act as a personal and public deterrence to like-minded bureaucrats and persons that they will be treated in the same manner.

32. I take into account that the contemnor has a serious medical condition and that he has a very large family to care for. It will inevitably cause hardship and distress to his wife and family and may directly impair his children's education if he is sent to prison. These unfortunately are the by-products of any breadwinner being imprisoned. Many more people than just the offender suffer. Mr Tigavu is in no special category in that regard. As for his medical condition, he will have human rights, like every other detainee, and may apply to the court to enforce those rights, if necessary, to obtain proper medical treatment. Having considered all the above, I have decided that the most appropriate form of punishment is committal to custody.

STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE FOR EACH COUNT?

33. The question here is: what should the term of imprisonment be? Though I have identified more mitigating factors than aggravating factors, the aggravating factors are very weighty. The incident instigated by the contemnor was an extremely serious one. It could easily have escalated out of control. It was an affront to the court and to the system of justice. Intimidation of parties, lawyers and witnesses must be condemned as intolerable. If this sort of conduct is allowed to become the norm, respect for the authority and independence of the courts will be undermined. A deterrent punishment is called for.

34. The appropriate punishment for each offence is the starting point penalty: 12 months imprisonment. The total potential punishment is thus three years imprisonment. It is not necessary for a fine to be imposed in addition to a term of imprisonment.

STEP 7: SHOULD THE PUNISHMENT BE SERVED CONCURRENTLY OR CUMULATIVELY?

35. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88).

36. As the direct, physical victim in counts 1 and 3 was the same person (Louis Medaing, who was both a party and a witness in the court proceedings) the punishment for those counts should be served concurrently. However, as the direct, physical victims in count 2 (the lawyers, Tiffany Nonggorr and Ray William) were different, the punishment for count 2 should be served cumulatively to counts 1 and 3.

37. The total potential punishment is therefore reduced to two years imprisonment.

STEP 8: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

38. I now look at the total punishment that the offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive. Here, I take into account, again, the strength of the contemnor's apologies and his medical condition. The total punishment will be reduced to 12 months imprisonment, apportioned as follows: six months on counts 1 and 3; and six months on count 2.

STEP 9: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?

39. Suspending all or part of the prison term is an option under Order 14, Rule 49(3) of the National Court Rules, which states:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
 
40. In some cases (eg Yap v Tan and Bishop Bros) prison terms for contempt have been suspended on condition that the contemnor do certain things. However, I consider that in this case suspending the sentence would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment.

41. The message needs to be driven home that contempt of court is an extremely serious matter and that no one is above the law. Parties, lawyers and witnesses must be permitted to perform their duties and exercise their legal rights in a peaceful and orderly environment, free of threats, intimidation, harassment and reprisals. Authority and respect for the courts must be maintained. These messages are best conveyed by requiring the contemnor to spend his time in custody. None of the punishment will be suspended.

ORDER

(1)	The contemnor, David Tigavu, shall be punished for contempt by committal to prison for a period of 12 months, with effect forthwith.

(2)	No part of the punishment is suspended.

(3)	A warrant of commitment to custody at Beon Correctional Institution, Madang, shall be issued accordingly.

Punishment accordingly.
____________________________

Public Prosecutor: Lawyer for the Plaintiff
Meten Lawyers: Lawyers for the Contemnor