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Manase v Opa [2013] PGNC 154; N5339 (30 August 2013)

N5339

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 183 OF 2011

KEVEN MANASE
Appellant

V

THOMAS OPA
First Respondent

NEWMAN SAI
Second Respondent

JOHN MAI
Third Respondent

TONY MAI
Fourth Respondent

Waigani: Cannings J
2013: 28, 30 August

CONTEMPT – disobedience of court order – punishment – whether committal to prison or fine is appropriate – whether appropriate to suspend punishment.

The contemnor was found guilty after trial of contempt of court for disobeying an order of the National Court that required him to within one month of the date of the order cease any activities on a block of land and vacate the block. A hearing was held to determine the punishment.

Held:

(1) A useful starting point for punishment purposes is 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.

(2) The seriousness of the matter warranted committal to prison for a period of six months. It was not appropriate to also impose a fine.

(3) This was not an appropriate case in which to suspend the punishment. Accordingly the contemnor was committed to custody forthwith.

Cases cited

The following cases are cited in the judgment:

Elias Padura v Stephanie Valakvi (2012) N4830
Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10
John Rumet Kaputin v The State [1979] PNGLR 559
Keven Manase v Thomas Opa (2013) N5280
Newsat Ltd v Telikom PNG Ltd (2007) N3673
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

K Manase, the appellant, in person
J N Tandawai, for the first respondent

30th August, 2013

1. CANNINGS J: The contemnor Keven Manase has been convicted after trial of contempt of court and this is the decision on punishment. He was found guilty of deliberately disobeying an order of the National Court dated 24 September 2012 that required him to within one month of the date of the order cease any activities on a block of land at Nine Mile, NCD, on which he had been living for seven years, and to vacate the block by delivering possession to the first respondent, Thomas Opa. The contemnor has not complied with the order and the reasons he gave for not complying were rejected by the court. Further details of the circumstances in which the offence was committed are in the judgment on verdict, Keven Manase v Thomas Opa (2013) N5280.

ANTECEDENTS

2. The contemnor has no prior convictions that are known to the Court.

ALLOCUTUS

3. The contemnor was given the opportunity to address the Court on the question of punishment. He stated:

I apologise to the Court for what I have done. I come from the village and I do not have anywhere else to live in the city and I do not have any way of going back to the village. I have been living on this land, which I paid for, for a long time but if the Court orders that the block should go to the first respondent I will give up the property. I just need time to organise my departure. I am unemployed and struggling to look after my children and my grandchildren who are in school. I have very few assets and I need to find a way to get my family home. If I am sent to prison this will cause great hardship for my family as there is no one else to look after them. I ask for the mercy of the Court so that I can be given time to sort out my things.

DECISION MAKING PROCESS

4. To determine the appropriate punishment the following decision-making process is adopted:

• 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?
• step 7: should all or part of the punishment be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

5. 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.

6. 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. I have in other cases examined laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum is two years imprisonment or a fine of K5,000.00 or both (Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931; Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10). I follow the approach I have taken in the other cases referred to and use a notional maximum of two years imprisonment or a fine of K5,000.00 or both. There might be cases in which the nature and extent of the contempt warrant sterner punishment. However, this is not such a case.

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

8. This is a disobedience type of contempt (Peter Luga v Richard Sikani and The State (2002) N2286). As I pointed out in Elias Padura v Stephanie Valikvi (2012) N4894 it has been customary to punish this sort of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

9. I will highlight the mitigating and aggravating factors as they ultimately govern the form and extent of the punishment.

Mitigating factors

1. No prior convictions.
   
2. Right of possession to the land has been a complex issue and the contemnor genuinely believes that he should be allowed to live on the block, as he paid money for it several years ago.
   
3. It appears that the contemnor has had a breakdown in communication with the lawyer who initially represented him, the Public Solicitor. If he had had the benefit of legal advice it is likely that he would have complied with the Court order and avoided prosecution and conviction for contempt.
   
4. This was more a case of reckless disregard of a court order rather than a contemnor acting with fraudulent or dishonest intent.
   

Aggravating factors

1. His conduct had an immediate and serious deleterious effect on other persons: the first respondent.
   
2. The breach of the court order has continued for ten months.
   

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

10. Should the Court commit the contemnor to prison? Or impose a fine? Or impose both forms of punishment? As I said in Liriope and Valikvi prison terms for contempt of court provide a more effective deterrent than a fine. It is a better way of signalling the community's condemnation of the contemnor's conduct than a fine. It underlines the seriousness of the matter if a contemnor is required to spend time in prison. It reinforces the absolute duty of everyone to comply with court orders (Yap v Tan [1987] PNGLR 227). Committal to custody should not be regarded as a drastic form of punishment or something reserved for the worst cases of contempt or cases in which the contemnor has no children to care for. For a disobedience contempt the previous cases show that a prison term is the most appropriate form of punishment: the natural and ordinary consequence of being found guilty of this type of offence (John Rumet Kaputin v The State [1979] PNGLR 559). I agree with Mr Tandawai, counsel for the first respondent, that the most appropriate form of punishment in this case is committal to custody. However, I do not agree with the other part of Mr Tandawai's submission, that a fine should be imposed in addition to a prison term. That would be oppressive, especially in view of the contemnor's financial position, which appears to be rather poor.

STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE?

11. The number and the strength of the mitigating factors slightly outweigh the aggravating factors. Therefore the term should be below the starting point. I fix the term of imprisonment as six months.

STEP 7: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?

12. 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.

13. I have decided not to suspend the punishment as the contemnor has had ample opportunity to purge his contempt and move out of the block. He has continued to be in contempt of the Court's order for a period of ten months. He has, as Mr Tandawai submitted, displayed a high degree of stubbornness. If the Court were to suspend the punishment and impose conditions such as moving out within a certain time there would seem to be a substantial risk of his re-offending, ie not complying with another Court order. I might have been persuaded to suspend the punishment if he had pleaded guilty and shown a real preparedness to comply with the Court's orders. That was not the case so he will have to serve his time in custody.

COSTS

14. I think it would cause undue hardship to the contemnor's family if he were subject to a costs order. In these circumstances of this case I will order that the parties bear their own costs.

ORDER

(1) The contemnor, Keven Manase, having been convicted of contempt of court, is punished as follows:

(2) The parties will bear their own costs.

Punishment accordingly.
______________________________________
Leo Lawyers: Lawyers for the First Respondent