N5476
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 473 OF 2013

IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

PETER CHARLES YAMA
Contemnor

Madang: Cannings J
2014: 30, 31 January

CONTEMPT – incident outside courthouse – threat of violence by party to court proceedings against police officers providing security – punishment

The contemnor was convicted after trial of two counts of contempt of court by (1) interfering with and harassing members of the Police Force who were on duty securing the courthouse and the precincts of the National Court, (2) threatening to shoot members of the Police Force. A hearing was held to determine the punishment. The contemnor argued that payment of fine was the most appropriate punishment. The plaintiff submitted that committal to prison was a punishment available to the court but left the punishment to the discretion of the Court.

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 two 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: the contemnor complied with a previous order of the Court requiring him to control his supporters; he has co-operated with the Court; and he has no prior convictions and has expressed genuine remorse.

(5)	Aggravating factors are that the contemnor was guilty of aggressive and inflammatory conduct what had real potential to cause serious alarm and affront to members of the Police Force; the words were uttered in a tense environment, thereby creating a situation which could easily have got out of hand.

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

(7)	The offences were each part of the same incident, so the punishments should be served concurrently. No reduction under the totality principle was warranted.

(8)	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. Accordingly the contemnor was committed to custody for a period of six months.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Ian Augerea v David Tigavu (2010) N4188
Manu Kovi v The State (2005) SC789
Mase v The State [1991] PNGLR 88
Newsat Ltd v Telikom PNG Ltd (2008) N3673
Peter Luga v Richard Sikani (2002) N2285
Public Prosecutor v Kerua [1985] PNGLR 85
Richard Sikani v The State and Peter Luga (2003) SC807
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
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 Justin Ipa (2008) N3439

PUNISHMENT

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

Counsel

A Kalandi, for the plaintiff
T M Ilaisa, for the contemnor

31st January, 2014 

1. CANNINGS J: Peter Charles Yama was convicted after a trial of two counts of contempt of court and this is the court's decision on punishment. He is referred to in this judgment as 'the contemnor'.

2. The offences were committed in the course of an incident in the precincts of the National Court at Yabob Road, Madang, on the afternoon of Tuesday 3 September 2013. The Court was that day dealing with an election petition concerning the result of the 2012 election for the seat of Usino-Bundi Open. The contemnor was the petitioner. He was challenging the election of Hon Anton Yagama MP. During the luncheon adjournment, as the contemnor and his lawyer and other associates were driving along Yabob Road in the direction of Modilon Road, they were confronted and threatened with physical violence by a group of Mr Yagama's supporters. That group of supporters shouted at and abused the contemnor. They had black paint and mud on their faces and some of them were armed with weapons including bushknives, iron rods, stones and axes, which were brandished in a threatening manner, for example by being scraped along the road. Members of the Yagama group had stationed themselves outside the courthouse so that they would be able to intimidate the contemnor and his lawyer and members of the contemnor's group as they left the precincts of the Court.

3. It was a serious incident, involving threats of violence with weapons and a high level of intimidation, against a party to ongoing court proceedings, and his lawyer and other associates. The aggressors were members of a group of Mr Yagama's supporters. The contemnor's supporters were stationed at the opposite end of Yabob Road. They did not offer any aggression and did not get involved in the violent incident. They kept the peace.

4. During the course of the Court's inquiries into that incident, it became apparent that there was a later incident involving an alleged threat of violence by the contemnor against members of the Police Force. It is the conduct of the contemnor in that later incident, which led to his conviction.

5. The Court found that the contemnor returned to the courthouse at 1.25 pm. He drove along Yabob Road from the direction of Yabob village. He drove near to where the Ramu Police members were located, which was near the NBC building about 50 metres away from the courthouse gate. The contemnor was annoyed over the failure of the Police to disarm Mr Yagama's supporters and very concerned about what had happened as he and his associates had left the courthouse in the morning. He stopped his vehicle and spoke to the members of the Police Force from Ramu. He asked where the Provincial Police Commander was and when they replied that the PPC was in Port Moresby he complained to them about the job that they were doing. The contemnor said words to the effect:

You Ramu police are not doing your job professionally. Why don't you disarm the supporters of the member? You have a duty to be fair. You are not being neutral.

6. The contemnor was angry and also said words to the effect:

If anything happens I will shoot you first ... You'll be the first guys I'll shoot at, I got some sophisticated (or high-powered) firearms, which I will use to shoot you.

7. As a result of those findings of fact the Court concluded:

8. As to count 1, that the use of such threatening words by the contemnor amounted to interference with and harassment of members of the Police Force. It was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. The contemnor was found guilty of count 1.

9. As to count 2, the fact that there is no evidence that the contemnor took any steps to carry out the threat was of no consequence. It is understandable that he was angry and frustrated. It is accepted that he was genuinely in fear of his personal safety as a result of the morning's incident. However, uttering those threatening words, in such a tense environment, was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. The contemnor was found guilty of count 2.

10. The contemnor also faced a third charge: ignoring the request and orders of the trial judge made in Court at Waigani on 29 July 2013 that he as a leader was to take control of his supporters and associates to ensure no disturbance took place outside the court while the court was dealing with the proceedings. He was found not guilty of that charge. It was found that the contemnor complied with those orders in that he took control of his supporters and associates, as borne out by the fact that they were well behaved and respectful of the Court. It was his failure to control himself that put him in contempt.

ANTECEDENTS

11. The contemnor has no prior convictions.

ALLOCUTUS

12. The contemnor said:

I apologise to your Honour and all the court staff. I also apologise to my wives and children, and also to my 200 workers and to the People of Madang and the People of Papua New Guinea. I had no intention of involving myself in this incident. I came to the court to seek a recount. My lawyer and I did nothing to provoke the violence that occurred. I was abused and stones were thrown at me by Mr Yagama's supporters. I managed to escape but those people are my people too. When I came back to the court after lunch I avoided them by taking the back road. I was annoyed when I saw the Ramu police there with a vehicle that I know was supplied by Mr Yagama and which was involved in the invasion of my premises by Mr Yagama's supporters that took place in July 2013 when I was in Port Moresby. Mr Yagama was present and my family was threatened and very frightened. My people wanted to retaliate but I stopped them from doing so.

This was one of the incidents that led your Honour to making the order in Waigani on 29 July 2013. The order was directed at both me and Mr Yagama. I have respected and complied with that order all along. I have always briefed my people on the importance of respecting the court. Sometimes they did not understand exactly what has happened in the courtroom, so I need to educate them, and I always tell them that we must respect the court.

I always respect the court and the officers of the court and also people who are in dispute with me. I come from humble beginnings. I have been a businessman for 33 years. I started with K300.00 and now I have much more. I am a law-abiding person. I do not create problems in Madang. I still live a simple life and live amongst simple people in Newtown. I have little formal education and I thank God for helping to make me who I am. I have no fear of anyone and I know about what is right and what is wrong. If I have a problem with anyone I do not take the law into my own hands. The first place I go is the court. I believe in the Judiciary. While politics become corrupt, it is the Judiciary which holds the country together. It is a pillar of strength. Whether I win or lose a court case, I am still the same person.

The people who attacked me on the morning of 3 September 2013 are my clansmen or tribesmen. I had to report what happened to the court. They were acting like warlords, making people who come to the court afraid. Nobody who works in or attends the court should be intimidated. I was taking a risk by reporting what happened to the court. There will be consequences. They will never forgive me. But I reported it in the best interests of the court. I was the complainant but then I got charged too.

I again say sorry for what happened but my heart will remain true to God.

CHARACTER REFERENCES 

13. Glowing references have been provided by:

(a)	Sir Angmai Bilas, Chief of Riwo village and of the Bel people
(b)	Rev Father Joseph Durero, Catholic Church
(c)	Terry Almai, Community Leader, Wagol settlement
(d)	A/Chief Inspector B Neneo, Acting PPC
(e)	Steven A Amensik, Former Town Mayor, Madang
(f)	Mary Yama, wife
(g)	Israel Yama, son
(h)	Maurice Laufa, Snr Lecturer in Law, UPNG
(i)	Gabriel Kuk, former Kumul
(j)	Zacchary Gelu, lawyer
(k)	Rex Devi, Autonomous Region of Bougainville rep
(l)	Tim Pollock, Area Manager, Holiday Inn
(m)	Danilo Viola, Proprietor, Denville Enterprise
(n)	Ely Padura, Proprietor, Irish Trading Ltd
(o)	John V Golingan, Manager MTS Supermarket
(p)	Rev Father Peter Hunter, Parish Priest, Anglican Church, Madang
(q)	Steven Kaipa, Snr Inspector, PSC Madang Town Police Station
(r)	Kevin Murray, Managing Director, Raycom Ltd
(s)	Steven Etna, Snr Constable, OIC Warrants and Summons, Madang

SUBMISSIONS BY DEFENCE COUNSEL

14. Mr Ilaisa highlighted that the contemnor has no prior convictions. He has cooperated with the Court during the conduct of his case. He has apologised for the incident and expressed genuine remorse. He has an outstanding record as a businessman, community and national leader, as attested to by the numerous glowing character references.

15. He showed his great respect for the court by controlling his supporters even though they were provoked. He has always shown his respect for the courts. He is a strong believer in the Rule of Law. He was unarmed when he made the threat, which was simply a kneejerk reaction to a very tense situation. There was no premeditation. A fine or a suspended term of imprisonment is the appropriate punishment, Mr Ilaisa submitted.

SUBMISSIONS BY PROSECUTING COUNSEL 

16. Mr Kalandi stressed that the contemnor is a leader who should have exercised much greater restraint than he did. An appropriate punishment would be in the range of two to three months imprisonment, which could be suspended at the discretion of the court.

DECISION MAKING PROCESS

17. As the contemnor has been convicted of two offences, normal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle will be applied:

•	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 it be served concurrently or cumulatively?
•	step 8: what is the effect of the totality principle?
•	step 9: should all or part of the punishment be suspended?

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

18. 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.

19. 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). I have in two cases examined a number of laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum should be regarded as 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 (2010) N4188). I follow that approach here.

20. I stress that this is a notional maximum. There might be a case in which the nature and extent of the contempt warrant sterner punishment. However, the present case is not such a case, so it remains useful to bear in mind a notional maximum when determining the appropriate penalty.

STEP 2: WHAT IS A PROPER STARTING POINT?

21. 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? 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).

22. 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). 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?

23. In selecting equivalent cases it is useful to consider the nature of the contempt committed by the contemnor. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court is an offence that is constituted not only by disobedience of a court order but any act or omission committed in the face of the court or outside court which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). His Honour identified five main categories of contempt:

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;

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.

24. The present case falls within category 5: other forms of interference with the administration of justice, as it involved threats and intimidation of police officers. The recent Madang case of Ian Augerea v David Tigavu (2010) N4188 was dealt with as a category 5 case: taking reprisals on parties and witnesses. The contemnor was punished by committal to custody for a period of 12 months, none of which was suspended.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

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

Mitigating factors

26. I accept the mitigating factors suggested by Mr Ilaisa. The contemnor complied with a previous order of the Court requiring him to control his supporters; he has co-operated with the Court; and he has no prior convictions and has expressed genuine remorse. There was no premeditation. It was a kneejerk reaction to a tense situation. He was genuinely frustrated and angry with the Police who he regarded as being one-sided. He also has an abundance of glowing character references, showing that he has a high standing in Madang Province.

Aggravating factors

27. The aggravating factors emerge from the nature of the offences. The contemnor was guilty of aggressive and inflammatory conduct that had real potential to cause serious alarm and affront to members of the Police Force; the words were uttered in a tense environment, thereby creating a situation which could easily have got out of hand.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

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

29. As I said in Liriope and Tigavu, 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 respect the Court, not to take the law into their own hands, comply with court orders and maintain the Rule of Law.

30. Committal to custody should not be regarded as a drastic form of punishment or something reserved for the worst cases of contempt. I have decided that the most appropriate form of punishment in this case is committal to custody.

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

31. The question here is: what should the term of imprisonment be? I have identified more mitigating than aggravating factors. Punishment below the starting point of 12 months imprisonment is called for. The appropriate punishment for each offence is six months imprisonment. The total potential punishment is thus 12 months 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?

32. The general rule is that if two or more offences are committed in the course of a single incident 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). Here there was one incident involving the same victims. Therefore the punishment of six months for each offence should be served concurrently. The total potential punishment is therefore reduced to six months imprisonment.

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

33. I now look at the total punishment that the contemnor 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. I do not think six months is excessive or inappropriate. The total punishment will be six months imprisonment.

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

34. 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.
 
35. 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, in this case suspending the punishment would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment. I decline to suspend any part of the punishment.

ORDER

(1)	The contemnor, Peter Charles Yama, is punished as follows:

Form of punishment imposed	6 months committal to prison	
Pre-punishment period in custody	Nil	
Resultant length of punishment to be served	6 months committal to prison	
Amount of punishment suspended	Nil	
Time to be served in custody	6 months	
Place of custody	Beon Correctional Institution	

(2)	The parties will bear their own costs.

(3)	Bail money of K1,000.00 shall be refunded to the contemnor forthwith.

Ruling accordingly.
________________________________________________
Registrar, National Court: Lawyer for the Plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the Contemnors