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Augerea v Kopaol [2020] PGNC 153; N8388 (26 June 2020)

N8388

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.180 of 2015

BETWEEN:
IAN AUGEREA, REGISTRAR OF THE SUPREME COURT
AND THE NATIONAL COURT
Plaintiff

AND:
ROBERT KOPAOL
Defendant

Waigani: David, J
2020: 26^th June

CONTEMPT OF COURT – punishment – contempt committed outside courtroom within precincts of court at Courthouse car park – assault of lawyer for clients defending contemnor’s claim for K4.9 million arising from the death of contemnor’s son allegedly in a motor vehicle accident caused by the negligent driving of the son of one of the lawyer’s clients – assault after adjournment - exercise of discretion – fine imposed, in default of payment, imprisonment for eight months in hard labour.

Cases Cited:

Public Prosecutor v Nahau Rooney (No.2) (1979) PNGLR 448
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105.
Yap v Tan (1987) PNGLR 227
Daniel Gwaya Poka v The State [1988] PNGLR 218
The State v Mark Taua: Re Awaita [1985] PNGLR 178
Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N690
Kwimberi v The Independent State of Papua New Guinea (1998) SC545
Peter Luga v Richard Sikani (2002) N2286
Richard Charles Sikani v The State (2003) SC807
Manu Kovi v The State (2005) SC789
Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763
Stephen John Rose v Neville Devete (2007) N3327
Thress Kumbamong v The State (2008) SC1017
Ian Augerea v David Tigavu (2010) N4188
Elias Padura v Stephanie Valakvi (2012) N4894
Ian Augerea v Augustine Koroma (2014) N5475
Ian Augerea v Hon Anton Yagama MP (2014) N5477
Christine Gawi v Elizabeth Mandus Wukawa (2016) SC1478
Ian Augerea v Robert Kopaol (2020) N8374

Counsel:

Robbie Yansion, for the Plaintiff
Derek Wood, for the Defendant

PUNISHMENT

26^th June, 2020

1. DAVID, J: INTRODUCTION: This is the decision of the Court on punishment following the verdict of the Court delivered on 15 May 2020 finding the contemnor guilty of one count of contempt of court.
   
2. In the verdict, the Court found that McRonald Nale (Mr. Nale), a lawyer was assaulted by Mr. Kopaol and his supporters at the car park of the Supreme and National Courts at Waigani (Courthouse car park) after National Court proceedings commenced by WS No.757 of 2014 on 2 July 2014 by the contemnor and one Mr. Philip Wari as first and second plaintiffs respectively against Mr. Nale’s clients, John Nahare and Gobe Business Development Corporation Ltd as first and second defendants respectively claiming K4.9 million (WS No. 757 of 2014) were adjourned to 4 March 2015 for hearing of Mr. Nale’s client’s application to dismiss those proceedings for failing to disclose any reasonable cause of action or were frivolous or vexatious or for abuse of process. The details of the circumstances when the offence of contempt of court was committed are set out in the verdict, Ian Augerea v Robert Kopaol (2020) N8374.
   

BRIEF BACKGROUND

3. Mr. Nale was the lawyer for the defendants in WS No.757 of 2014.
   
4. In WS No.757 of 2014, it was alleged that on 18 January 2014, Ronnie Kopaol (deceased) who was the contemnor’s son, was a passenger on the trailer of a Nissan Navara (4x4) utility driven by Deheray Nahare, who is John Nahare’s son. Deheray Nahare allegedly lost control of the vehicle when it negotiated the roundabout at South Pacific Brewery at Gordons, National Capital District and hit a concrete flower pot in the middle of the road. The deceased was thrown off the vehicle and landed on the bitumen head first. The deceased allegedly suffered severe head injuries and was pronounced dead upon arrival at the hospital. Subsequently, on 27 January 2014, a Peace Agreement (Peace Agreement) was allegedly signed by the representatives of the contemnor and Mr. Nahare.
   
5. It was also alleged that pursuant to the terms of the Peace Agreement, the plaintiffs would accept the death of the deceased and ensure peace was maintained between the parties and the defendants would pay K5 million as compensation to the plaintiffs. In addition, it was alleged that the defendants made a part payment of K100,000.00 and the balance outstanding of K4.9 million was sought to be recovered against the defendants in the proceedings.
   
6. By separate defences filed on 20 August 2014, the defendants denied liability and asserted, amongst others, that the Peace Agreement was invalid as it was signed under duress, Gobe Business Development Corporation Ltd was not a party to the peace agreement, the Board or shareholders of Gobe Business Development Corporation Ltd did not resolve to pay the claim for customary compensation, the Peace Agreement contravened the Motor Vehicles (Third Party Insurance) Act and the proceedings, failed to disclose any reasonable cause of action or were frivolous or vexatious and should be dismissed.
   
7. On 9 February 2015 at about 1:30 p.m., WS No. 757 of 2014 was mentioned in Court before His Honour Justice Sakora at which time, on the application of the lawyer for the contemnor and Mr. Wari, His Honour adjourned the proceedings to 4 March 2015 for the hearing of the defendants’ notice of motion filed on 3 October 2014 which sought an order to dismiss the proceedings for disclosing no reasonable cause of action or were frivolous or vexatious or were an abuse of the process of the Court.
   
8. After Mr. Nale left the Court room and when he was at the Courthouse car park, the contemnor committed the offence of contempt of court.
   

ALLOCUTUS

9. Following the delivery of the verdict on 15 May 2020, allocutus was administered, ie., the contemnor was asked whether he had anything to say in mitigation of punishment. He said he had and made a statement to the following effect:
   

He did nothing wrong as he was only trying to protect Mr. Nale. Police lied to Court. The incident arose from the death of his son and he is still grieving his son’s death in his heart without showing tears. He said sorry on behalf of his boys. The claim he filed was defended by the defendants showing arrogance despite the Peace Agreement so it was tantamount to de facto provocation. He was willing to pay a reasonable fine on behalf of his boys. He was not a criminal, but a leader. He was the father of the national Christian education policy. He respected the work of the courts.

10. The Court noted that the contemnor was emotional when making his statement.

ANTECEDENTS

11. There is no evidence to demonstrate that the contemnor has prior convictions.

PERSONAL PARTICULARS

12. The contemnors personal details are sketchy. From material available before the Court including the contemnor’s affidavit sworn and filed on 12 June 2020 attached to which are several character references which I have considered, the contemnor is married with children one of whom was the deceased, Ronnie Kopaol. He is a Peace Maker, a leader, a consultant, a donor, educationist and practicing Christian and involves in Christian activities.

PLAINTIFF’S SUBMISSIONS

13. Mr. Wood for the plaintiff contends that a penalty of imprisonment would be consistent with established legal principles and reflective of community expectations. He said the Court ought not to exercise its discretion and suspend any part of any sentence imposed. In addition, it was argued that the public and parties to court proceedings should feel safe to come to Court and the attack on a lawyer erodes the public’s confidence that the Court is a safe place for them to resolve their disputes. It was submitted that a custodial sentence would impress upon the contemnor the gravity of his conduct and also would deter others in the public who are inclined to such behaviour.

14. Mr. Wood urged the Court to take note of the offence of assault under Section 6 of the Summary Offences Act which carries a maximum penalty of imprisonment for a term not exceeding two years by way of comparison. He said the contemnor’s contempt was wilful, contumacious and deliberate. There was a deliberate intention to defy the authority of the Court in that the contemnor assaulted Mr. Nale after a court hearing with the intention of interfering with Mr. Nale’s discharge of his duty to the Court to represent his client’s interest fully and freely. It was submitted that the contemnor’s contempt was at the highest end of the scale of seriousness. Mr. Wood stated that justice of the case would be best served by the imposition of a custodial sentence of imprisonment for a term of 24 months.

CONTEMNOR’S SUBMISSIONS

15. Mr. Yansion for the contemnor argued that the contemnor has a heavy heart given these proceedings and the eventual finding of guilt for contempt of court directly arises from his claim for compensation in the National Court which was instituted as a result of the death of the contemnor’s son in a motor vehicle accident and eventually withdrawn following the incident giving rise to these proceedings. He said all the character references point to the contemnor being a good man, a peace maker and a good family man. He said the incident that precipitated these proceedings was very unfortunate. The contemnor demonstrated remorse and apologised to the Court.

16. Mr. Yansion contended that of the three classes of contempt of Court identified in Stephen John Rose v Neville Devete (2007) N3327, namely, technical contempt, wilful contempt and contumacious contempt, this case fell under either the first or second categories where the imposition of fines is generally the preferred punishment. Mr. Yansion therefore suggested that in the circumstances of this case, the appropriate punishment was the imposition of a fine.

MAXIMUM PENALTY

17. Order 14 Rule 49 of National Court Rules deals with punishment for contempt of court. The rule states:

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

(2) Where the contemnor is a corporation the Court may punish contempt by sequestration or fine or both.

(3) 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.
18. Contempt of Court is a very serious matter as 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, Ian Augerea v David Tigavu (2010) N4188.

However, when punishment is considered, the Court is given a very wide discretion as to the type of punishment it may impose: Christine Gawi v Elizabeth Mandus Wukawa (2016) SC 1478, Ian Augerea v David Tigavu (2010) N4188.

19. As to how the sentencing discretion is exercised, the Court has generally applied the sentencing principles in criminal cases such as taking into account mitigating and aggravating factors and the reservation of the maximum penalty for the worst case: Christine Gawi v Elizabeth Mandus Wukawa (2016) SC1478.

CATEGORIES OF CONTEMPT
20. In Christine Gawi v Elizabeth Mandus Wukawa (2016) SC 1478, the Supreme Court at paragraph 8 said there are three classes of contempt and these are:

1. Technical Contempt – where the contempt is “casual, accidental or unintentional” – penalties vary from accepting an apology to costs orders or a fine.
   
2. Wilful Contempt – deliberate conduct but without specific intent to defy judicial authority. A fine is generally all that is required to vindicate the authority of the Court.
   
3. Contumacious Contempt – involves an obvious intention to defy and disobey the authority of the Court. Custodial sentences will frequently be imposed. It is often associated with “criminal” as opposed to “civil” contempt.
21. In Peter Luga v Richard Sikani (2002) N2285, Sakora, J identified five main categories of contempt and these are:
    
    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, commonly referred to as 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.
   

22. This case falls largely within category 2 of those propounded in Christine Gawi v Elizabeth Mandus Wukawa (2016) SC 1478 and category 5 of those propounded in Peter Luga v Richard Sikani (2002) N2285.

MITIGATING FACTORS

23. The following factors are considered in favour of the contemnor and in mitigation of the offence:

1. No prior conviction.
2. He has apologised in Court.
3. De facto provocation; the incident arose from the claim for compensation for the death of the contemnor’s son, Ronnie Kopaol which was defended by Mr. Nale’s clients.
4. He has a prior good and unblemished character and a person with high standing in the community demonstrated by the references attached to his affidavit and organising the Peace Agreement to avoid problems that could have arisen in connection with his son’s death and which was the subject of the claim in WS No.757 of 2014 is testament to that.
5. This was an isolated incident.
   

AGGRAVATING FACTORS

24. The following factors are considered against the contemnor and in aggravation of the offence:

1. No genuine remorse.
2. Mr. Nale, a lawyer and an officer of the Court was assaulted including being hurt when punched and his shirt torn during the incident on account of what he said or did in Court and generally for his clients defending the contemnor’s claim for compensation.
3. He was personally involved with his supporters in the assault of Mr. Nale.
4. He is a person with high level of sophistication and subscribes to Christian principles.
   

PUNISHMENT

25. In considering what punishment I should impose in the exercise of my sentencing discretion, I have considered the starting point of one year imprisonment or a fine of K2,500.00 or both suggested by Cannings, J in Ian Augerea v David Tigavu (2010) N4188 after considering other laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies: Ian Augerea v David Tigavu (2010) N4188 paragraphs 11 to 14. I adopt the starting point suggested and apply it here. The appropriate punishment here could either be that adjusted upward or downward or left at the starting point depending on the factors in mitigation or aggravation of the offence.

26. I have considered the punishments imposed for contempt of court in cases the parties have cited and they include, Ian Augerea v David Tigavu (2010) N4188, The case of Ian Augerea v David Tigavu (2010) N4188, Ian Augerea v Augustine Koroma (2014) N5475, Elias Padura v Stephanie Valakvi (2012) N4894, Ian Augerea v Hon Anton Yagama MP (2014) N5477, Daniel Gwaya Poka v The State [1988] PNGLR 218, The State v Mark Taua: Re Awaita [1985] PNGLR 178, Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N690, Kwimberi v The Independent State of Papua New Guinea (1998) SC545, Peter Luga v Richard Sikani and The State (2002) N2286, Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763, Stephen John Rose v Neville Devete (2007) N3327, Richard Charles Sikani v The State (2003) SC807, Christine Gawi v Elizabeth Mandus Wukawa (2016) SC 1478. I have also considered Yap v Tan (1987) PNGLR 227.

27. On the urging of the plaintiff, I have also considered by way of comparison the maximum penalty for the offence of assault under Section 6 of the Summary Offences Act which is a fine not exceeding K500.00 or imprisonment for a term not exceeding two years. The penalty is limited to either a fine or imprisonment and compensation for bodily injury or damage to property. This is contrary to the options available under Order 14 Rule 49 of the National Court Rules where punishment can either be committal to prison, or fine or both. Although the National Court Rules would be inferior to the Summary Offences Act in terms of the hierarchy of laws under Section 9 of the Constitution, Order 12 Rule 49 was specifically promulgated to deal with punishment for contempt of court and these proceedings have been pursued under the auspices of the National Court Rules. As I have alluded to earlier, I will go by the regime suggested by Cannings, J in Ian Augerea v David Tigavu (2010) N4188.

28. In the present case, the factors in mitigation slightly outweigh the factors in aggravation.

29. A punishment lower than that imposed in Ian Augerea v David Tigavu (2010) N4188 which has some similarities with the present case, but distinguished by the fact that there, the contemnor was convicted for three counts of contempt of court as opposed to a single count here, is warranted.

30. Mr. Nale, a lawyer and an officer of the Court engaged in the defence of National Court proceedings WS No.757 of 2014 instituted by the contemnor and a co-plaintiff was assaulted straight after the case was adjourned. I do agree with the sentiments expressed by Cannings, J in Ian Augerea v David Tigavu (2010) N4188 as to contempt of court being a serious matter where at paragraph 41, His Honour said:

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.

31. However, as I have alluded to earlier, it is a trite principle of law on sentencing that the maximum penalty is usually reserved for the worst cases for the particular offence under consideration and that each case must be considered on its own merits: Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92, Ure Hane v The State [1984] PNGLR 105.

32. To my mind, this is not a case of the worst type of the offence of contempt of court to warrant a sentence higher than the starting point.

33. Sentencing is not a matter of mathematics or precise science, but logic and common sense and what is considered fair and reasonable in a given set of circumstances and that sentencing guidelines or starting points should not restrict or be a fetter to the exercise of sentencing discretion: Thress Kumbamong v The State (2008) SC 1017. That is a valid point, but until the Supreme Court constituted by more judges than those involved in cases such as Manu Kovi v The State (2005) SC 789 and Thress Kumbamong v The State (2008) SC1017 clarify the matter, I will treat sentencing guidelines or indications of starting points for various types of offences as mere guidelines and are helpful in the exercise of the sentencing discretion.

34. In the circumstances of the present case and in the exercise of my discretion, I will impose the following punishment:

1. A fine of K2,000.00 which shall be paid to the National Court by 03:00 pm on Tuesday, 30 June 2020.
2. In default of payment of the fine within the time stipulated, eight months imprisonment in hard labour and warrants of arrest for the contemnor’s arrest and of commitment for custody at Bomana Correctional Institution shall immediately issue if and when the occasion arises.
   

Punishment and orders accordingly.
________________________________________________________________
Ashurst: Lawyers for the Plaintiff
Yansion Lawyers: Lawyers for the Contemnor