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Siune v Rimua [2013] PGNC 96; N5282 (31 July 2013)

N5282

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 203 OF 2011

JOHN SIUNE
Plaintiff

V

RENDLE RIMUA
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2013: 29 April, 31 July

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

A Departmental Head was found guilty after trial of contempt of court for disobeying an order of the National Court regarding payment of lost salaries and other entitlements to a person reinstated by the Court. A hearing was held to determine the punishment. The contemnor argued that payment of a fine or a suspended prison sentence was sufficient. The plaintiff submitted that committal to prison for two to three years was warranted.

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) Mitigating factors are: the contemnor did partially comply with the court order; the contemnor did not engage in any other contumacious conduct; he has co-operated with the court; he has issued instructions to purge the contempt; no prior convictions.

(3) Aggravating factors are: the contemnor breached the Court's order in a way that had an immediate and seriously deleterious effect on another person; the contemnor breached his duty as a leader to be a role model for all public servants and the People of Papua New Guinea as to how they should respect and comply with orders of the National Court.

(4) The seriousness of the matter warranted committal to prison for a period of 12 months.

(5) This was an appropriate case in which to suspend the punishment for the contemnor subject to payment of compensation to the plaintiff (the contemnor to pay from his own pocket K10,000.00) within 21 days and compliance with other conditions.

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
John Siune v Rendle Rimua & The State (2013) N5110
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881
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

J N Napu, for the plaintiff
E G Manu, for the contemnor

31st July, 2013

1. CANNINGS J: The contemnor, Rendle Rimua, the Secretary of the Department of Petroleum and Energy, 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 23 May 2012 that required him amongst other things to calculate and pay to the plaintiff, John Siune, all unpaid entitlements due and owing to him by 12.00 pm on 25 May 2012. The contemnor did not pay any unpaid entitlements to the plaintiff within the two-day period set by the court. Instead he paid the plaintiff in two instalments, the first on 1 June 2012 and the second on 22 June 2012. He was found to have displayed a careless attitude to his duty to comply with court orders. Further details of the circumstances in which the offence was committed are in the judgment on verdict, John Siune v Rendle Rimua & The State (2013) N5110.

ANTECEDENTS

2. The contemnor has no prior convictions.

ALLOCUTUS

3. The contemnor was given the opportunity to address the Court on the question of punishment. He made both written and oral statements which are summarised as follows:

I had no intention of disobeying the court orders. It is regretful that compliance was slow in terms of effecting payments after directions I issued after the court's orders. The payment process was slow given the public service approval process and the delay in the calculations by the Division responsible for calculations of entitlements due to the plaintiff. I wish to request for the Court to exercise leniency and allow me to carry on my job.

To the best of my knowledge I complied with the Court Orders. I tried to get the calculations done as soon as I could. I regret and sincerely apologise for not paying within the two-day timeframe. Please be lenient on any sentences as I have big responsibilities to carry out for the country.

PERSONAL PARTICULARS

4. The contemnor is aged 48 and is from Manugoro Village, Rigo District, Central Province. He is married with three children. He has a Bachelor of Economics from the University of Papua New Guinea and a Masters in Petroleum Taxation & Finance from Dunn University, United Kingdom. He has been the Secretary, Department of Petroleum & Energy, since 2007. He has previously worked with the Internal Revenue Commission and the Bank South Pacific. He is a member of the local United Church and a community leader. He has also enclosed a glowing character reference from the Minister for Petroleum & Energy Hon William Duma.

DECISION MAKING PROCESS

5. 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?

6. 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.

7. 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).

8. Mr Manu for the plaintiff submitted that the contemnor's contributions to the LNG project must be taken into consideration by the Court. He submitted that the contemnor did eventually comply with the orders of the Court – there was no absolute disobedience as in the case of Peter Luga v Richard Sikani and The State (2002) N2286. Mr Napu on the other hand submitted that the contemnor should be sentenced to a prison term of two to three years given his continued disobedience to give effect to the Court Orders.

9. 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?

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

11. 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?

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

Mitigating factors

1. Acted on the Court Order to some extent.
2. Did not engage in any other contumacious conduct except by the delay in obeying the order of the court.
3. He has attempted to purge his contempt by instructing his officers to prepare the calculations and pay the plaintiff.
4. He has no prior conviction for contempt or for any criminal offence.
5. He is well regarded in the community and highly regarded by his Minister.
   

Aggravating factors

1. His conduct had an immediate and serious deleterious effect on other persons: the plaintiff.
2. He had continuously failed to comply with legal obligations to pay the plaintiff's entitlements for a period of 21 months before he was required to comply within two days after the order of 23 May 2012.
3. He breached his duty as a leader to be a role model for the National Public Service and the People of Papua New Guinea and show how they should respect and comply with orders of the National Court and to uphold the Rule of Law. He is a very senior public official. He is subject to the Leadership Code. He is expected to lead by example and to obey National Court orders unless by lawful means he takes steps to have the orders set aside or varied. His breach of these solemn obligations is a major aggravating factor.
   

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

13. 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).

14. 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). The most appropriate form of punishment in this case is committal to custody.

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

15. What should the term of imprisonment be? The number and the strength of the mitigating factors are equivalent to those of the aggravating factors. Therefore the term should be set at the starting point. I consider that this was a case of reckless and ignorant disregard of a court order rather than a contemnor acting with fraudulent or dishonest intent. I fix the term of imprisonment as 12 months.

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

16. 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.

17. I have decided to suspend the punishment subject to conditions including the payment of compensation to the plaintiff by the contemnor. This will be compensation in respect of the inconvenience and aggravation incurred by the plaintiff as a result of the contemnor's disobedience of the Court's orders. It does not detract from the right of the plaintiff to his lot salaries and entitlements in accordance with the terms of the order of 23 May 2012. The amount of compensation to be paid by the contemnor will reflect the extent of his punishment. As in the case of Madang Cocoa Growers a reasonable sum is K10,000.00. I will allow 21 days to pay. The money must come from the contemnor's own pocket. It must not come from public funds. The punishment is fully suspended subject to these conditions:

(a) the contemnor must personally pay compensation of K10,000.00 to the plaintiff, which shall not be paid by the Department of Petroleum & Energy or from any other public funds, by 21 August 2013 and appear in the National Court on 28 August 2013 at 1.30 pm to demonstrate compliance;

(b) must report to the NCD Probation Office within three days after the date of punishment;

(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(d) must not leave National Capital District without the written approval of the National Court;

(e) must perform at least two hours unpaid community work each week at a place notified to the Probation Office;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the NCD Probation Office once per month at a time set by the Probation Office;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour;

(j) must have a satisfactory probation report submitted to the National Court Registry at Madang and appear in Court every six months after the date of punishment, the first appearance for that purpose being in January 2014 at a time set by the Court;

(k) if he breaches any one or more of the above conditions, shall be brought before the National Court and asked to show cause why he should not be committed to custody to serve the rest of the period of punishment.

COSTS

18. These contempt proceedings have been an adjunct to civil proceedings and therefore it is appropriate that costs follow the event.

ORDER

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

(2) The plaintiff's costs of the contempt proceedings shall be paid by the contemnor on a party-party basis which shall if not agreed be taxed.

Punishment accordingly.
______________________________________________
Napu & Co Lawyers: Lawyers for the Plaintiff
Manu & Associates Lawyers: Lawyers for the Contemnor