SC1519
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 12 OF 2016

	SOLOMON TATO	
Appellant

V

SAMSON AKUNAI, ACTING PROVINCIAL ADMINISTRATOR, 
EASTERN HIGHLANDS PROVINCE
First Respondent

THE HONOURABLE JULIE SOSO AKEKE MP, 
GOVERNOR, EASTERN HIGHLANDS PROVINCE
Second Respondent

EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
Third Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

IAN AUGEREA, REGISTRAR OF THE SUPREME COURT
Applicant 

V

THE HONOURABLE JULIE SOSO AKEKE MP
Contemnor

Waigani: Cannings J, Kangwia J, Higgins J
2016:   25th & 28th July 

CONTEMPT OF COURT – disobedience of court order – punishment – whether committal to prison or fine is appropriate – mitigating and aggravating factors – extent of punishment.

The contemnor, a provincial governor, was found guilty after trial of contempt of court for disobeying an order of the Supreme Court. The order, dated 15 February 2016, restored the appellant to office as Provincial Administrator forthwith and required that the respondents, including the contemnor, and the National Executive Council, permit him to resume office forthwith pending determination of the appeal by the appellant against orders of the National Court that restrained him resuming office after he had been suspended from duty. The contemnor disobeyed the order of 15 February 2016 by seeking to frustrate the implementation of the order. She did so by writing a letter to the appellant the next day, 16 February 2016, in coercive terms, instructing him to step down as Provincial Administrator and remain on paid leave. The letter was served on the appellant on 18 February 2016 as he sought to re-enter his office as provincial administrator. A hearing was subsequently held to determine the punishment. The contemnor apologised to the Court. It was argued on her behalf that a fine of K10, 000.00 to K15, 000.00 would be sufficient punishment. The Registrar of the Supreme Court, who brought the charge against the contemnor, did not seek a custodial penalty and agreed that a fine of the amount proposed by the contemnor would be appropriate and that in addition to the fine the contemnor should be ordered to pay the Registrar’s costs. 

Held:

(1)	There is no written law imposing maximum penalties for contempt of court but the conventional forms of punishment are a fine, committal to custody and/or an order for payment of costs.

(2)	It is convenient to set a notional maximum and to assign a starting point. In this case, as the contemnor is a leader and subject to the Leadership Code, the contempt of which she has been convicted is intrinsically a very serious matter, warranting a notional maximum and a starting point greater than that appropriate for persons who are not leaders.

(3)	The notional maximum penalty was regarded as four years imprisonment or a fine of K50, 000.00 and/or an order for payment of costs up to K50, 000.00. An appropriate starting point is in the middle of the range: two years imprisonment or a fine of K25, 000.00 and/or an order for payment of costs up to K25, 000.00. The court should then consider the mitigating and aggravating factors to assess the form and extent of the appropriate punishment.

(4)	Mitigating factors are: the contemnor expressed genuine remorse and made a full apology in Court for her actions; she has no prior conviction for contempt or any other criminal offence; she is highly regarded in her community and has a long record of committed public service, which is unblemished; she has a long and outstanding record as a women’s leader; she has been placed in a difficult personal situation due to the recent death of her husband; the conduct constituting the contempt was reckless rather than intentional; the cause of the contemptuous course of conduct was a concern for avoidance of disorder in the administration of the province and avoidance of confusion brought about by ongoing disputes about who should occupy the office of Provincial Administrator; she was motivated by a legitimate concern for the integrity of the office of Provincial Administrator, which had to some extent been brought into question by the appellant being recently charged with serious criminal offences; her act of disobedience in writing the letter and having it served on the appellant was a single act or transaction, which was not prolonged or repeated; there is no evidence that the appellant was significantly prejudiced by the disobedience of the order; the degree of interference in the administration of justice was relatively low as the court order that was disobeyed was, soon after the contempt of court was committed, implemented; the contemnor has fully cooperated with the Court in the contempt proceedings. 

(5)	Aggravating factors are: the contemnor is a leader and subject to the Leadership Code and has a special duty and responsibility to uphold the rule of law; the contempt was committed in relation to the highest court and the most senior judicial officer in the country.

(6)	In view of the nature and seriousness of the contempt and the lack of strong intention to interfere with the due administration of justice and the mitigating factors outweighing the aggravating factors, committal to custody was not necessary. A fine was a more appropriate penalty.

(7)	The circumstances of the case warranted a fine that is below the notional starting point but still a substantial amount to signify the gravity of the offence. The fine imposed was K15, 000.00, payable by 31 August 2016; in default, committal to custody for six months.

(8)	Further, no public funds shall be used in any way whatsoever to assist the contemnor pay the fine, which is and remains in perpetuity her personal and private responsibility.

(9)	The parties will bear their own costs of the proceedings.

Cases cited:

The following cases are cited in the judgment:

Bishop Brother’s v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Elias Padura v Stephanie Valakvi (2012) N4830
Gawi v Wukawa (2016) SC1478
John Rumet Kaputin v The State [1979] PNGLR 559
Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923
Kulunga v Vaki (2014) SC1394
Peter Luga v Richard Sikani (2002) N2285
Re Valentine Kambori (No 3) (2003) N2490
Richard Sikani v The State (2003) SC807
Ross Bishop v Bishop Brothers [1988-89] PNGLR 533
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
Tato v Akunai (2016) SC1511
The State v John Rumet Kaputin [1979] PNGLR 544
Tzen Pacific Ltd v Innovest Ltd (2015) SC1459
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel:

D Wood, for the Applicant 
T Waisi, for the Contemnor
28th July, 2016

1.    BY THE COURT:  The Honourable Julie Soso Akeke MP, Governor of Eastern Highlands Province, the contemnor, has been convicted after trial of contempt of court for disobeying an order of the Supreme Court. This is the decision on punishment.  

2.    The order, dated 15 February 2016, restored the appellant, Solomon Tato, to office as Provincial Administrator forthwith, and required that the respondents, including the contemnor, and the National Executive Council, permit him to resume office forthwith. The order was expressed to remain in force pending determination of the appeal by the appellant against orders of the National Court that restrained him from resuming office after he had been suspended from duty.

3.   The order, made by the Chief Justice, Sir Salamo Injia, sitting as a single Judge of the Supreme Court, stated:

	Pursuant to the Court Orders of the National Court made by Kandakasi J in OS 471 of 2015 Solomon Tato & Another v Hon Julie Soso & Ors, on 12 August 2015, the acting appointments of the first respondent  made by the National Executive Council on 11 February 2016 cease to have effect forthwith. The appellant is restored to office according to law effective as from this day on, and shall be permitted by the Respondents and the National Executive Council to resume office forthwith, pending the determination of this appeal.[Emphasis added.]

4.   The contemnor disobeyed the order of 15 February 2016 by seeking to frustrate the implementation of the order. She did so by writing a letter to the appellant the next day, 16 February 2016, in coercive terms, instructing him to step down as Provincial Administrator and remain on paid leave. The letter was served on the appellant on 18 February 2016 as he sought to re-enter his office as Provincial Administrator. Further details of the contemnor’s conviction are set out in our decision on verdict, Tato v Akunai (2016) SC1511.

ANTECEDENTS

5.   The contemnor has no prior conviction for contempt of court or any other criminal offence.

ALLOCUTUS

6.    The contemnor was given the opportunity to address the Court on the question of punishment. She sincerely apologised to the Supreme Court for her act of disobedience. She also apologised to the Chief Justice, who made the order that she disobeyed. She apologised to the People of Eastern Highlands Province. She pleaded for leniency. It was never her intention to disobey the order of the Supreme Court. She has the highest regard for the Courts. She signed the letter of 16 February 2016 in a rush, at Goroka Airport, as she was preparing to board a flight to Port Moresby to attend a provincial governors’ conference. She was not aware of the implications of her letter. She was not aware of the precise terms of the Supreme Court order of 15 February 2016.

7.    She made phone calls and sent text messages to Mr Tato to try to remedy her disobedience, as soon as she realised the implications of what she had done. He eventually got the messages she sent him and he resumed duty as Provincial Administrator soon afterwards. They have since reconciled and they are now working together for the betterment of the province.

8.    She was motivated in writing the letter to Mr Tato by nothing other than a genuine concern to relieve the chaos and confusion that had been dominant in the province since two conflicting National Court decisions was made in late 2015. 

9.   She was elected governor of her province at the 2012 general election by a strong majority. She has come from humble beginnings to hold an important leadership position. She is the first woman in the history of Papua New Guinea to be elected as a provincial governor.

10.    She has never before been convicted of any offence. She has faced tragedy in the recent past with the death of her husband. She asked the Court to take all these factors into account and to impose a non-custodial punishment. She undertook to pay any fine that the Court imposed, from her own funds. She fully accepted personal responsibility for her actions.  

PERSONAL PARTICULARS

11.    We accept the contemnor’s personal particulars, which have been submitted to the Court without objection. The contemnor is aged 54 and comes from Goroka. She is a widow, her husband having passed away on 3 June 2016. She has four children and nine grandchildren. She is a graduate of the Institute of Public Administration. She was a radio announcer with Radio Eastern Highlands from 1980 to 1996. From 1996 to 2012 she was the president of the Eastern Highlands Council of Women. She established a women’s network connecting the 264 wards in the province. From 2002 to 2009 she was a member of the Prime Minister’s Public Sector Advisory Group. From 2010 to 2012 she chaired the CLC Women’s Fellowship of Papua New Guinea. 

DECISION MAKING PROCESS

12.  We adopt the decision-making process set out by the Supreme Court in Kulunga v Vaki (2014) SC1394:

•	step 1: what is the maximum punishment?
•	step 2: what is the 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?

13.   The law under which this matter has been prosecuted does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) of the National Court Rules (adopted for the purposes of these proceedings under Order 2, Rule 1(g) of the Supreme Court Rules 2012) simply states:

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

14.    We also note that, in addition to committal to prison and a fine, the Court has the option of making an order for costs, including costs on an indemnity basis.

15.    The Court has a very wide discretion as to punishment. In deciding how it should be exercised it is useful to set a notional maximum. In this case the contemnor, as a member of the Parliament, is a leader under Section 27(1) of the Constitution. She is subject to the Leadership Code. The contempt of which she has been convicted is intrinsically a very serious matter, warranting a notional maximum greater than that appropriate for persons who are not leaders. We regard the notional maximum penalty as four years imprisonment or a fine of K50, 000.00 and/or an order for payment of costs up to K50, 000.00. 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 THE STARTING POINT?

16.  An appropriate starting point is in the middle of the range: two years imprisonment or a fine of K25, 000.00 and/or an order for payment of costs up to K25, 000.00.

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

17.    In selecting equivalent cases to consider, it is important to take into account the nature of the contempt committed by the contemnor. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court can be constituted by a number of different sorts of conduct, the main ones being:

1	improper behaviour in a courtroom 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 tends 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.

18.  The contempt committed in the present case falls into category 4: a disobedience contempt. As observed in Elias Padura v Stephanie Valikvi (2012) N4894 it has been customary to punish the disobedience form of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm, as shown by the selection of cases in the following table.

PUNISHMENT FOR DISOBEDIENCE CONTEMPT BY INDIVIDUALS

No	Case	Details	Punishment	
1	The State v John Rumet Kaputin [1979] PNGLR 544,
Greville-Smith J	Contemnor, a member of Parliament, disobeyed National Court order directing him as company secretary to lodge annual return within 3 months, by failing to lodge return. (Appeal against conviction and punishment dismissed: John Rumet Kaputin v The State [1979] PNGLR 559.)	10 weeks imprisonment
	
2	Yap v Tan [1987] PNGLR 227, 
Hinchliffe J	Contemnor, a businessperson, disobeyed orders of the Supreme Court requiring him to cooperate with the receiver of a company, by not cooperating – convicted on three counts.	K5,000.00 x 3 = K15,000.00, in default 12 months imprisonment	
3	Bishop Brothers v Ross Bishop (1989) N690, Bredmeyer J	Contemnor, a businessperson, disobeyed a National Court order requiring him to allow other persons on to business premises, by refusing access – convicted on two counts. (Appeal against conviction upheld: Ross Bishop v Bishop Brothers [1988-89] PNGLR 533.)	K500.00, in default 3 months imprisonment;
6 months imprisonment, suspended	
4	Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47,
Sheehan J	Contemnor, Managing Director of the Forestry Authority, disobeyed an interim National Court order that restrained him from closing the plaintiff’s logging operations, by giving notice to the plaintiff to stop its operations.	Order for costs against contemnor	
5	Peter Luga v Richard Sikani (2002) N2285, Sakora J	Contemnor, Commissioner of the Correctional Service, disobeyed a National Court order to reinstate a dismissed officer, by failing to reinstate him. (Appeal against conviction upheld: Richard Sikani v The State (2003) SC807.)	6 months imprisonment
	
6	Re Valentine Kambori (No 3) (2003) N2490,
Sevua J	Contemnor, a Departmental Head and Chairman of the National Forest Board, convicted on two counts: (1) breaching bail condition by travelling overseas without the leave of Court and (2) failing to comply with undertaking to Court that he would arrange payment of a judgment debt.	6 months imprisonment, suspended; K2,500.00  fine
	
7	Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, Sevua J	Two contemnors, purporting to be landowner representatives, fraudulently obtained a cheque for K500,000.00, being timber royalties, and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating to the payment.	18 months imprisonment x 2	
8	Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931, Cannings J	Contemnor disobeyed an order of the National Court not to take disciplinary action without the leave of the Court against nurses who had been involved in strike action, by charging and then dismissing a nurse, without seeking the Court’s leave, over a disciplinary matter.	6 months imprisonment	

19.    In Gawi v Wukawa (2016) SC1478 the Supreme Court (Hartshorn J, Makail J, Polume-Kiele J)upheld an appeal against punishment of six-weeks imprisonment for a contemnor found guilty of disobeying an order of the National Court. It replaced that custodial punishment with a fine of K5, 000.00. The Court expressed misgivings about custodial punishments being imposed too readily for the disobedience form of contempt. The Court stated:
36. As each case must be considered on its own merits, we accept Mr Brooks’ submission that the appropriate course in determining punishment is to consider the entire circumstances of the matter and to administer a punishment that is fair in the circumstances of a particular matter taking into account the level of culpability and the intention of the convicted contemnor. These are the principles on punishment enunciated in many case authorities and secondary materials.
37. To do otherwise, to send people to prison for disobedience contempt irrespective of the circumstances of the matter is not properly administering justice and is not reflective of community expectations. As was said by the full Federal Court of Australia in Vaysman v Deckers Outdoor Corporation Inc[2011] 276 ALR 596:
“The starting point for the process of reasoning in sentencing is the gravity of the offence.... In the case of contempt of Court involving contravention of, or failure to comply with, Court orders that mean assessing the seriousness of the defiance of the Court’s authority.”
38. Then later the Court said:
“Restraint is appropriate in imposing sentences of imprisonment for contempt of court involving contravention of, or failure to comply with, orders of the Court. The authority of a court can be brought into disrepute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity.”

20.    We agree that each case must be judged on its merits. It is a very significant decision to send anyone to prison. However, it must be borne in mind that contempt of court is a criminal offence (Tzen Pacific Ltd v Innovest Ltd (2015) SC1459). Punishment by a term of imprisonment will sometimes be the only appropriate form of punishment. 

21.    We enjoy in this country the benefits of a proud and resilient constitutional democracy. The rule of law is maintained because people respect the law and the courts. Contempt of court should never be allowed to be regarded as a minor matter. 

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

22.    We now highlight the mitigating and aggravating factors as they ultimately govern the form and extent of the punishment. 

Mitigating factors

(1)	the contemnor expressed genuine remorse and made a full apology in Court for her actions; 

(2)	she has no prior conviction for contempt or any other criminal offence; 

(3)	she is highly regarded in her community and has a long record of committed public service, which is unblemished; 

(4)	she has a long and outstanding record as a women’s leader; 

(5)	she has been placed in a difficult personal situation due to the recent death of her husband; 

(6)	the conduct constituting the contempt was reckless rather than intentional; 

(7)	the cause of the contemptuous course of conduct was a concern for avoidance of disorder in the administration of the province and avoidance of confusion brought about by ongoing disputes about who should occupy the office of Provincial Administrator;

(8)	she was motivated by a legitimate concern for the integrity of the office of Provincial Administrator, which had to some extent been brought into question by the appellant being recently charged with serious criminal offences; 

(9)	her act of disobedience in writing the letter and having it served on the appellant was a single act or transaction, which was not prolonged or repeated; 

(10)	there is no evidence that the appellant was significantly prejudiced by the disobedience of the order; 

(11)	the degree of interference in the administration of justice was relatively low as the court order that was disobeyed was, soon after the contempt of court was committed, implemented; 

(12)	the contemnor has fully cooperated with the Court in the contempt proceedings. 

Aggravating factors

(1)	the contemnor is a leader and subject to the Leadership Code and has a special duty and responsibility to uphold the rule of law; 

(2)	the contempt was committed in relation to the highest court and the most senior judicial officer in the country.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

23.    Should the Court commit the contemnor to prison? Or impose a fine? Or order her to pay the Registrar’s costs? Or impose a combination of those forms of punishment? 

24.    We note that there are considerably more mitigating than aggravating factors. We therefore uphold the submission that the nature and seriousness of the contempt mean that committal to custody is not necessary. We note that the prosecuting party, the Registrar, does not seek a custodial penalty. We consider that a fine is a more appropriate penalty.

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

25.   The circumstances of the case warrant a fine that is below the notional starting point but still a substantial amount to signify the gravity of the offence. The fine is K15, 000.00, payable by 31 August 2016; in default, committal to custody for six months.

26.    We are impressed by the contemnor’s statement in allocutus that she will not use public funds to pay the fine. We will enforce that undertaking by an order: no public funds shall be used in any way whatsoever to assist the contemnor pay the fine, which is and remains in perpetuity her personal and private responsibility.

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

27.    Suspending all or part of the fine 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.

We do not consider that suspending the fine would serve the purpose of deterrence that imposition of such a substantial fine is designed to achieve. There is no suspension.

COSTS

28.    As the contemnor is required to pay a substantial fine, and liable to a default penalty of six months imprisonment, we consider that that is sufficient punishment. It would be oppressive to also order that she pay the Registrar’s costs. We will order that the parties bear their own costs.

ORDER

(1)	The contemnor, the Honourable Julie Soso Akeke MP, having been convicted of contempt of court, is punished as follows: fine of K15,000.00, payable by the contemnor personally, payable by 31 August 2016, in default, six months imprisonment.

(2)	For the avoidance of doubt, no public funds shall be used in any way whatsoever to assist the contemnor pay the fine, which is and remains in perpetuity her personal and private responsibility.

(3)	Cash bail paid by the contemnor, pursuant to the order of 2 May 2016 or any other order regarding bail in these proceedings, shall be refunded on presentation of a receipt.

(4)	The contemnor is discharged from her bail obligations. 

(5)	The parties will bear their own costs of the proceedings.

Punishment accordingly,
__________________________________________________________________
Ashurst Lawyers		: Lawyers for the applicant	
Tony Waisi Lawyers 	: Lawyers for the contemnor