N5477
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 473 OF 2013

IAN AUGEREA
REGISTRAR OF THE NATIONAL COURT
Plaintiff

V

HON ANTON YAGAMA MP
Contemnor

Madang: Cannings J
2014: 22, 31 January

CONTEMPT – incident outside courthouse – threats and incitement to violence by supporters of a party to ongoing court proceedings – punishment of person whose supporters were involved in incident – responsibility for conduct of supporters.

The contemnor was convicted after trial of two counts of contempt of court by (1) failing to take adequate steps to prevent his supporters and associates from threatening and inciting physical violence against and intimidating the petitioner and the petitioner's lawyer and supporters and associates; and (2) failing to prevent his supporters and associates from disturbing the peace of the precincts of the National Court. The contemnor argued that payment of fine was more suitable or 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 was not present at the incident; 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 ultimately responsible for the violent incident that erupted in the precincts of the court. He failed to discharge his duty to the court.

(6)	The seriousness of the matter warranted committal to custody for a period of 18 months on each count.

(7)	The offences were each part of the same incident, so the punishments should be served concurrently. A reduction under the totality principle was warranted as the contemnor is an MP and may lose his seat, causing inconvenience and a loss of empowerment for his constituents, if he is punished for a period of more than nine months. The total punishment imposed was nine months imprisonment.

(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 nine 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
Re Valentine Kambori (No 3) (2003) N2490
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 Boboro, for the contemnor

31st January, 2014 

1. CANNINGS J: The Honourable Anton Yagama MP has been convicted after a trial 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 contemnor was convicted of two counts of contempt in relation to an incident outside the National Court at Yabob Road Madang at 11.20 am on Tuesday 3 September 2013. The Court had that morning commenced hearing various applications regarding the result of a Court-ordered recount of votes in the 2012 general election for the seat of Usino-Bundi Open. The result of the election had been the subject of an election petition, EP No 52 of 2012. The petitioner was Mr Peter Charles Yama, who was challenging the election of the contemnor.

3. That incident led the Registrar of the National Court, Mr Ian Augerea, to charging Augustine Koroma and 12 others, who are supporters of the contemnor, with contempt of court. The Court had, at an earlier hearing, expressed concern about the conduct of supporters of the parties and ordered that the petitioner and the contemnor and their supporters were restrained from causing or inciting any form of disturbance to any of the parties and requested the petitioner and the contemnor to lead and take control of their supporters. The Registrar of the National Court inquired into the incident and charged the contemnor with three counts of contempt of court.

4. The court found, as to count 1, failing to take adequate steps to prevent his supporters and associates from threatening and inciting physical violence against and intimidating the petitioner and the petitioner's lawyer and supporters and associates, that the contemnor failed to take adequate steps to ensure that this sort of thing did not happen. He as a leader should have ensured before the day of the hearing that his supporters did not come to court with painted faces, shouting war-cries and armed with weapons. He has given evidence that he knew about the Court's orders, as did his supporters. Therefore he should have warned them that aggressive and intimidating behaviour of that kind would not be tolerated. Upon coming to the courthouse on the morning of 3 September 2013 he should have re-emphasised to his supporters that they must not engage in any aggressive, violent or other contemptuous behaviour.

5. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters. I find that it has been proven beyond reasonable doubt that he failed to discharge that duty by failing to take adequate steps to prevent his supporters from engaging in contemptuous conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor was guilty of count 1. 

6. The court found, as to count 2, failing to prevent his supporters and associates from disturbing the peace of the precincts of the National Court, that it was a fact that the contemnor's supporters disturbed the peace of the precincts of the National Court. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters by ensuring that they did not engage in any conduct that disturbed the peace of the precincts of the National Court. A courthouse and the immediate physical area in which it is situated are special, sacrosanct areas. All persons who come into these areas must preserve the peace. To engage in any rowdy or violent behaviour is a show of disrespect to the Court. The contemnor failed to discharge his duty to the court by failing to take adequate steps to prevent his supporters from engaging in such conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor was guilty of count 2. 

ANTECEDENTS

7. The contemnor has no prior convictions.

ALLOCUTUS

8. He stated:

My name is Anton Francis Yagama.

I now stand before this Honourable Court having being found guilty of contempt of court. The contempt charges arise from an incident that occurred outside the premises of the court house, here in Madang on 3 September 2013.

I wish to sincerely apologize to your Honour and to this Honourable Court and the staff of this Court for the particular incident that occurred on 3 September 2013.

I also wish to sincerely apologize to the petitioner, Mr Peter Yama, and his family and his supporters.

Furthermore I wish to sincerely apologize to my family members and my supporters and all those persons who have been affected in one way or the other by the incident.

I have long involvement with the people of high profile and standing in this community and they have also been affected by this incident. Two of these persons namely, Fr Jan Czuba, President of Divine Word University and Pastor Kario Veneo, Senior Pastor Gospel Lighthouse, Madang who have written character references for me.

As I have now been found guilty of the Contempt of the Court, I wish to humbly seek your Honour's forgiveness and sympathy and I humbly seek this Honourable Court to impose a non-custodial penalty or sentence against me.

I am truly sorry for the incident that occurred on this 3rd of September, 2013.

9. The contemnor enclosed the two references he refers to in his allocutus from the two church organizations and they are duplicated below:

Father Jan Czuba, President
Divine Word University

I, Fr Jan Czuba, am very pleased to write this letter of reference for Honourable Anton Francis Yagama, MP whom I have known since 1995.

I have work with many public servants over many years in Papua New Guinea, but he stands out among them. I have always been impressed by Mr Anton Francis Yagama's leadership ability and his commitment to quality. I found him easy to work with and a personable individual.

I have found Mr Anton Francis Yagama to be trustworthy, reliable, conscientious, honest, peace-loving and courteous. It was a privilege to cooperate with such a committed person, which aims to achieve high objectives.

I can confirm that he is a man of integrity, is extremely devoted to his family, work, people and Papua New Guinea through his dedicated services.

Pastor Kario Veneo, Gospel Lighthouse, Church of the Foursquare Gospel

In the church, people come and go as members of the congregation without any thought of helping and supporting the church in their spare time. Mr A F Yagama has spent much of his spare time helping in the church with his wife and family as congregational leader and mentor to our young people, many of whom are from the settlement. Mr and Mrs Yagama have also assisted in sponsoring students both from Bundi, PNG, and overseas that come to study at our Bible College, Lighthouse Bible College.

I have always been impressed with his love for God. Out of that love for God comes his passion in leadership and his service to the church and his commitment to his people, the Bundis. He is conscientious, reliable, honest, peace loving, and honourable.

I have no hesitation in commending to you Mr Yagama as a man of integrity, and completely devoted to his family and his work in serving the people of Madang.

PERSONAL PARTICULARS

10. Mr Boboro for the contemnor submitted the following:

The contemnor is 59 years of age and hails from Snowpas village, Bundi, Madang Province. He is married for 38 years with 8 children and 10 grandchildren. He is currently the duly elected Member of Parliament for Usino-Bundi Electorate, Madang Province. He was elected as the Member for Usino-Bundi in the 2012 National General Elections. He is an economist by profession. He obtained his Bachelor of Economics degree in 1976 from the University of Papua New Guinea.

11. Before he became a Parliamentarian, he worked in the private and public sectors in various capacities. These were:

•	Branch Manager for various branches with PNG Banking Corporation for 9 years.
•	Town Manager for Madang Town for 9 years.
•	Deputy Administrator for Madang Province for 3 months.
•	Bank officer for the Commonwealth Bank for 6 years.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Boboro 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 had a long career in the private and public sectors. He apologised for the actions of his supporters immediately after the incident was reported to the court. He tried his best to control his supporters. He has also apologised to the petitioner.

SUBMISSIONS BY PROSECUTING COUNSEL

13. Mr Kalandi stressed that the contemnor is a leader who should have exercised greater control over his supporters. An appropriate punishment would be in the range of three to six months imprisonment, which could be suspended at the discretion of the court.

DECISION MAKING PROCESS

14. 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?

15. 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.

16. 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.

17. 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?

18. 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).

19. 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?

20. 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.

21. The present case falls within category 5: other forms of interference with the administration of justice, as it involved a failure to take adequate steps to prevent violence in the precincts of the court. 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?

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

Mitigating factors

23. I accept the mitigating factors suggested by Mr Boboro. Mitigating factors are the contemnor was not present at the incident; he has co-operated with the Court; and he has no prior convictions and has expressed genuine remorse. Strong character references by Fr Czuba and Pastor Kario attest to the contemnor's outstanding community record and his integrity as a leader and his commitment to God.

Aggravating factors

24. The aggravating factors are that the contemnor was ultimately responsible for the violent incident that erupted in the precincts of the court. He failed to discharge his duty to the court.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

25. 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.

26. 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.

27. I agree with the sentiments expressed by Sevua J in Re Valentine Kambori (No 3) (2003) N2490:

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.

28. 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?

29. The question here is: what should the term of imprisonment be? I have earlier today punished those for whose conduct the contemnor is ultimately responsible: his supporters received punishment of 18 months imprisonment each. The contemnor deserves the same as them. The aggravating factors are stronger than the mitigating factors. The appropriate punishment for each offence is 18 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?

30. 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 18 months for each offence should be served concurrently. The total potential punishment is therefore reduced to 18 months imprisonment.

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

31. 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 or are inappropriate. It is at this stage of the decision-making process a very special consideration peculiar to the contemnor comes to the fore: the contemnor is a member of the Parliament and if he is committed to custody for a period exceeding nine months he may lose his seat under Section 103(3)(c) or (e) (qualifications for and disqualifications from membership) of the Constitution, which state:

A person is not qualified to be, or to remain, a member of the Parliament if: … 

(c)	subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or …

 (e)	he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms.

31. If the contemnor were to lose his seat this would cause inconvenience and a loss of empowerment for his constituents, the People of Usino-Bundi. It would also amount to a crushing penalty. The total punishment is reduced under the totality principle to 9 months imprisonment, equally apportioned (four and a half months each) between the two offences.

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

33. 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.
 
34. 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, Hon Anton Yagama MP, is punished as follows:

Form of punishment imposed	9 months committal to prison	
Pre-punishment period in custody	Nil	
Resultant length of punishment to be served	9 months committal to prison	
Amount of punishment suspended	Nil	
Time to be served in custody	9 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
Kuman Lawyers: Lawyers for the contemnors