Luga v Sikani, Commissioner of Correctional Services (No 2) [2002] PGNC 60; N2286 (4 October 2002)

N2286

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 503 of 2001

BETWEEN:

PETER LUGA

Plaintiff

AND:

RICHARD SIKANI

COMMISSIONER, CORRECTIONAL SERVICES

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani : Sakora J

2002 : 11, 13, 18 & 25 June
01 & 04 October

CONTEMPT - Contempt of Court – Disobedience of court order – Power of court to punish – Imprisonment appropriate for serious contempt – Relevant considerations – Overriding desire and need to protect society – Public interest in the due administration of justice – Sentencing approaches generally – Imprisonment with hard labour for six months imposed.

CRIMINAL LAW – Sentencing – Principles generally –No immunity from punishment – Imprisonment appropriate for serious contempt – Relevant considerations – Overriding desire and need to protect society – Public Interest in the due administration of justice – Deterrent sentence – Denunciatory sentence – Purpose of punishment.

Counsel:
A. Baniyamai for the Plaintiff.
M. Kua for the Defendants.

4th October 2002

JUDGMENT ON SENTENCE

SAKORA J: On Tuesday 01 October 2002 I found Mr Richard Charles Sikani, the Commissioner for Correctional Services, guilty of contempt of court in that he had deliberately and wilfully disobeyed the orders of the National Court made on 22 April 2002 and directed specifically to him to comply with and implement their terms. The trial of the allegations spread over four days in June.

Introduction

On Wednesday 02 October 2002 I heard counsel on their submissions on sentence, as indeed I had also the Contemnor himself on allocatus. I reserved my decision on sentence to today. Whilst it would have been quite in order and according to the usual practice to remand Mr Sikani in custody to be brought back to Court to receive his sentence, I granted him bail during the adjournment.

These orders were made following the court’s review of the decisions and actions of Mr Sikani in his official capacity affecting the rights and entitlements of an officer in the Correctional Services, one Mr Peter Luga, attached to the Correctional Services Headquarters. After a full and substantive trial or review, the National Court found the decisions and actions of the Commissioner to be null and void and of no legal effect, thereby quashing them as such. And orders remedial of those decisions and actions were made, legally and administratively for the Commissioner’s direct compliance with and implementation.

The detailed reasons for this Court’s decision on the guilt of the Commissioner and the consequent conviction amply demonstrate the circumstances leading to those conclusions. And these have been published, so there is no need to go over those here.

The sentencing role

The task of sentencing, though coming at the end of the trial process in the criminal justice system, is no less important than the other earlier stages of the process. This stage is the sanctioning stage, the enforcement stage, the vindication of the law stage, and a stage, I might add, Mr Sikani has had direct intimate association with for nigh on 28 years of his professional life. A stage in the criminal justice process that he has, consequently, had a direct constitutional/legal and administrative superintendence and responsibility for.

The Court’s function at this concluding stage is no less important nor onerous. It is as serious as the earlier stages: the charging, the prosecution and the determination of guilt or innocence stage. This is the stage or process where a combination of a host of factors such as: the entire and special circumstances of this case; the law relevant to the offence in question; the public interest; and interests of individuals concerned (the victim, if any, and the offender or perpetrator) are to be considered, weighed up against each other. All of these factors or circumstances need to be taken into account in the proper exercise of the sentencing discretion.

One thing needs mentioning here that has been repeatedly adverted to in the course of the decision (and the detailed reasons) already in relation to the Court’s powers on Contempt. And that is that the sentencing task of the Court is not specifically defined, except what is provided for under O14 r 49 National Court Rules (NCR). This rule is in the following terms (omitting the inconsequential):

49. Punishment
    
    • (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.
    • (2) . . .
    • (3) The Court may make an order for punishment on terms, including a suspension of punishment in case 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.
      

Except for r 49 (of O14, supra) provisions under which are not in mandatory terms, the summary and unlimited nature of the contempt powers as part of the inherent powers of the superior courts is emphasised by what s 37(2) Constitution say, which is:

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

It will be noted s 37 Constitution provides an exhaustive list of the procedural safeguards that are intended to be accorded and made fully available to persons in custody or charged with offences: Sub-s (1).

However, under the common law on this subject (the principles and rules of which had been adopted as part of the underlying law, subject to the inconsistency, inapplicability and inappropriateness proviso: Sch. 2.2 Constitution), case law over the centuries (United Kingdom) and decades (Papua New Guinea) have established principles and guidelines to assist our courts in exercising these inherent powers, in determining whether or not contempt of court has been committed in particular circumstances and, what, if any, sanctions or punishment should be imposed. And some of the more notable and authoritative decisions pertinent to the instant case have been referred to and respectfully adopted and applied here (infra).

Factors for consideration

In considering this serious and onerous task of determining an appropriate sentence under the special circumstances of this case, I have had the benefit of hearing from both counsel their respective submissions (one Mr Baniyamai handing up his written extract for my further assistance) as indeed I have been assisted by the contemnor himself when he address the Court on allocatus being administered. Now, dealing first with Mr Sikani’s statement, after announcing that he respected the decision of the Court (on guilt and conviction) he apologised to the Court for his and his subordinates’ actions against the plaintiff, he said that these actions were not intentional, and further that he did "not intentionally disobey the Court order . . ." He nevertheless apologised for what had happened, and that he would "always uphold any decision made by this honourable court".

On Mr Sikani’s behalf, Mr Kua of counsel adopted the apology that had been made in open Court, and urged the Court to take into consideration the following matters in mitigation:

• Remorse had been expressed by the apology.
• First offender, no prior convictions.
• The personal and professional record (documented and handed up)
• As the ultimate administrative head of the Correctional Services, the conviction might affect his future.
• From humble beginnings.
  

Urging leniency in the sentencing decision, Mr Kua directed the Court’s attention to and relied on O14, r 49(3) NCR (supra), to submit that custodial sentence should not be imposed, and, that, if the Court were minded to so impose then such a sentence should be suspended on terms as envisaged by the sub-rule. Counsel emphasised that, in the light of those mitigating factors already noted and urged upon the Court a non-custodial sentence, under the circumstances, would suffice, both as deterrence and punishment. In this counsel was of course adverting to the effect on the contemnor, personally and professionally, of the finding of guilt and the recording of a conviction. Thus, it was argued, those decisions of the Court were punishment enough already, and only a warning or a caution was called for here.

It was the further submission of learned counsel that the option of a fine was also available to the Court, finding comfort in referring to the other cases of contempt in this jurisdiction, more particularly those involving officers of the Court, lawyers who failed to turn up on appointed trial dates to represent their respective clients. As a comparison Mr Kua referred to the case of: Attorney-General & Ors v. Dr Pirouz Hamidian-Rad (Unreported, SC618 of October 1999), to submit that the term of imprisonment there was correct as that case was serious. Here, counsel contends, the disobedience had been rectified, the plaintiff has been reinstated to his former duties and that everything in the end "reverts to normalcy".

Mr Baniyamai of counsel for the plaintiff, acknowledging what the contemnor and his counsel submitted in support of lenient treatment, begged to differ in some aspects of those submissions as he took the Court through his own written submissions. At the outset, counsel referred to the affidavit of George Rerebina sworn and filed 21 June 2002, tendered into Court (and marked MF1) to be availed of only upon a finding of guilt for the Court’s assistance in determining an appropriate sanction. The affidavit is now admitted into Court for this very purpose. Counsel urges the Court to take account of the contents of the affidavit which, he contends, raise very serious issues as to the contemnor’s expression of remorse.

The deponent is a Warder in the employ of the Correctional Services, attached to "guard duties" at the Bomana Major Correctional Institution. It would appear that on 6 July 2001 Mr Rerebina sued the Commissioner, the contemnor, for unlawfully issuing an administrative minute effectively causing a demotional transfer. The proceedings were instituted and conducted before the District Courts (Complaint NO. 1465 of 2001), seeking recovery of lost salaries as a direct consequence of the contemnor’s actions. The orders sought were granted (ex parte) and duly served on 6 July 2001 (Annexures "A" and "B", copy orders and affidavit of service of these, respectively). Annexed to the affidavit also are correspondence from Mr Sikani to Stevens Lawyers (acting for Mr Rerebina) on the matter, dated 6 and 24 July 2001) (annexures "C" and "D" respectively).

These letters basically maintained his administrative decision and described the Court orders as defective and not to be entertained. No legal processes had been instituted by the Commissioner to challenge the District Court Decision in the usual manner, nor to have the orders set aside in the interim. Thus, it is deposed, Mr Sikani gave directions for Mr Rerebina to be taken off the payroll and his salaries, therefore, to be ceased on 18 and 27 July 2001 respectively in the face of those Court orders. In the circumstances Contempt charges were laid against the Commissioner on 7 August 2001 (annexure "E" puts together copies of the Notice of Motion, supporting affidavit and Statement of Charges). It would appear that Mr Sikani only acted on those orders and had the officer restored to the payroll after the lawyers had applied for his arrest.

It is the submission of learned counsel for Mr Luga that the circumstances highlighted by Mr Rerebina’s affidavit demonstrate that there is no guarantee this attitude of disobedience and defiance will change. Thus, it is contended, the Court ought to take a serious and stern stand against such attitude.

Emphasising the discretionary nature of the Court’s powers, counsel then referred to and relied upon the Supreme Court case of Public Prosecutor v. Nahau Rooney (No. 2) [1979] PNGLR 448.

Mr Baniyamai suggests that the history of this case, with the assistance of the affidavit of Mr Rerebina, point to an expression of remorse that ought not be accepted as genuine. On the contrary, here is a history of total disrespect to the courts and their orders, orders that are treated as subject to Mr Sikani’s own personal interpretation and approval. Counsel adverts, in this respect, to the effect of this on the public in their attitude towards court orders. Another case of disobedience, John Rumet Kaputin v. The State [1979] PNGLR 559, was referred to and relied upon also by counsel for the plaintiff.

The professional training, present leadership status and experience, together with his educational qualifications are relied on to contend that the contemnor here is no ordinary lay person, and that adopting the principles applied in the two Supreme Court cases of Public Prosecutor v. Nahau Rooney (No. 2) and John Rumet Kaputin v. The State (supra), this case calls for a custodial sentence, as anything less would have a detrimental effect. And this is emphasised by the suggestion that the contemnor is by professional duties and responsibilities an officer of the Court.

Comments on factors

The contemnor is a 45 year old married man with three children. His parents died when he was 7 years old and was raised by his maternal uncle who took him to Wewak to attend school. After completing primary and secondary education (grade 10 completed in 1973 at St Xavier’s High School, Kairuru) he enrolled at the Training College, Bomana, in March 1974 for basic training, after which he entered the Joint Services College, Igam Barracks, Lae, for officer-training. Mr Sikani graduated as a Correctional officer the next year, 1976, and served in various parts of the country.

In order to further and advance his formal qualifications he commenced degree studies at the University of Papua New Guinea (UPNG) through the Distance Education programme. Between 1984 and 1986, Mr Sikani attended UPNG full-time, completing his degree in 1986. He returned to UPNG in 1989 to complete his Honours for his Bachelor’s degree in Sociology, after serving as the Executive Officer to the then Commissioner for the Correctional Services. To pursue his interest in Criminology, he attended the Australian Institute of Criminology, Canberra. After a stint at the National Research Institute (NRI), Waigani, as a Senior Criminological Researcher (1991 – 1993), Mr Sikani undertook and completed a Masters degree programme at Melbourne University, Australia (1994-1997).

Between 1998 and 2000, Mr Sikani was the Senior Research Fellow at the NRI. The government recognising this wealth of experience and qualifications, appointed him to head the Correctional Services as Commissioner in January 2001.

These antecedents, this personal history of work experience and professional training, reflect one who was always anxious to advance and improve his work and his professional qualifications; a record demonstrating one not content with mediocrity. So that before me is displayed a well experienced and qualified person at the helm of a State institution legally obliged (by statute) to enforce the laws of the country by keeping in safe and secure custody for the designated periods indicated on Court orders, those who offend against our laws.

Without fear of contradiction it can be stated here that Mr Sikani would (have to) be the most qualified Commissioner the Service has had, possessing long professional service and appropriate tertiary qualifications. He came to the head of the institution from the "ranks", as it were, with this impressive curriculum vitae, unlike some of his predecessors who had been appointed from outside the Service, some even without the benefit of professional training and experience.

It is from this background that is steeped in direct and intimate association with enforcement of the law, through the practical implementation of Court orders, for nigh on 28 years that the Court has been at pains to understand the contempt, and, now, to consider an appropriate sentence.

The Court notes that remorse has been expressed, and I am mindful of the fact that it is not everyday, nor an easy thing, that someone in the position of Mr Sikani publicly apologises (in open Court). It will be noted, however, that the apology, firstly, was not for disobeying the orders of the Court, but rather for what he and his officers did (or did not do), always maintaining (despite the Court’s findings of deliberate and wilful disobedience) that he did not intentionally disobey. It will be noted from the judgment on liability (page 11) discussing briefly mens rea that the mental element necessary for this category of contempt "is simply that the disobeying (or refusing) party intended the conduct constituting the disobedience". Thus, the plaintiff/applicant here did not have to demonstrate to the Court’s satisfaction (beyond reasonable doubt) that Mr Sikani "intended to disobey or to have made no reasonable attempt to obey". (ibid)

The second point to make about the apology is that nowhere is there any reference to the plaintiff Mr Luga, who has suffered as a direct result of the actions and omissions of the Commissioner and his senior officers, even after the National Court had found that those actions and omissions were not justified or allowed by law. The focus of the apology is, therefore, a personal concern to put a better light on the incidents of disobedience rather than (or as well as) remorse at causing someone harm and distress.

The apology, therefore, cannot be characterised and accepted as expressing remorse on the part of the contemnor. I agree with Mr Baniyamai that it lacks genuineness, firstly, because of the two aspects just noted, and, secondly, because of the evidence of propensity demonstrated by the depositions and annexures in the affidavit of warder George Rerebina (supra), a subordinate of Mr Sikani who suffered similarly. The same conclusion can apply to the suggestion that the contemnor has "learnt his lesson". There has been no factual demonstration of this. What I am satisfied of from legal evidence is Mr Sikani’s tendency, propensity, to defy; to denigrate; to put in motion procedures to evade, avoid and procrastinate (in) the enforcement and implementation of orders made by courts of competent jurisdiction. In another situation this sort of behaviour (or misbehaviour) could properly be described as something verging on "serial offender".

The apology must, therefore, be considered as something of a hollow shell. The contemnor’s persistence, in the face of overwhelming incontrovertible evidence, with his lack of intentional disobedience is yet another example of his arrogance, not to mention an attitude of misplaced righteousness. It is to be repeated and emphasized here that all requirements or pre-requisites for the finding of contempt were found by this Court to have been present in this case. There were no administrative/bureaucratic hurdles, or shortcomings, that had (or would have) adversely affected the timely implementation of the orders, nor render their implementation impossible. No suggestion was ever made during the trial that giving effect to the orders of the Court in this instance would (or was likely to) cause some administrative inconvenience.

What happened here is what the Court found. Mr Sikani, using his position and powers, created administrative "roadblocks", with the connivance of the senior Headquarters personnel, to effective and timely implementation of the orders. All this, once again, in the face of the Court’s findings of deliberate and wilful disobedience. It will be noted once again that the Court did not find accidental contempt, but wilful as the case law insists. No innocent or unintentional contempt can be attributed to the circumstances here.

In fact the circumstances here properly demonstrate an attitude and behaviour attracting the epithet recalcitrant. The obstinate disobedience of someone in a position of authority and power is well demonstrated. And this leads me to refer to the judgment on liability where I make the conclusion that part of the reason for this recalcitrance was (or can be explained by) personal vendetta against Mr Luga. The Court, from evidence before it, found that this case had its genesis in the prosecution of a senior officer of the Service and a close associate, if not a friend, of Mr Sikani. And this person is Mr Martin Balthasar. Mr Luga was the principal State witness against Mr Balthasar, who was found guilty and duly discharged from the Service. Under the leadership of the contemnor, Mr Balthasar was reinstated and now holds and enjoys the administrative and important position of Assistant Commissioner (Personnel Management and Training). It is to this officer that the Commissioner’s directions in relation to the Court orders supposedly went, on the same day as service on the Commissioner (8 May 2002, see evidence of Mr Sikani and his Executive Officer, Mr Eka). And yet it is Mr Balthasar’s sworn oral evidence that he "became aware of the orders on 21 May 2002", some 13 days after Mr Sikani’s direction. And the geography of the Headquarters working area was (at least at the time of the trial of this matter) described in the following way (judgment N2285, pp. 26 – 27):

Mr Eka’s evidence confirmed that Mr Balthasar’s office is in the same building, same office block, as those of the Commissioner and himself. There is other evidence before me that Mr Balthasar’s office is 15 metres away from the Commissioner’s and Mr Eka’s (Mr Balthasar’s sworn evidence in cross-examination). It would appear that these are not offices, but rather desks or "work stations" (no doors, no cubicles) in designated areas of an open-plan office floor. Thus, it would appear from what has been described that all persons working in such an area would be within eye-sight (if not easy earshot) of each other.

And even at that supposedly later time (than that nominated by Mr Sikani and his Executive Officer in their respective sworn evidence), it was and is Mrs Daton’s sworn evidence that Mr Balthasar told her to "wait for the Commissioner’s approval". She added that when she sought the Commissioner’s advice on 16 April 2002, she was instructed to "wait". It is the law in this jurisdiction, as elsewhere in the common law world, that "taking reprisals on witnesses and court officials on account of what they have said or done in court" is a form of interference with the administration of justice that is accepted as constituting contempt of court (see pp. 7 and 8 of judgment, N2285).

Briefly, in relation to Mr Kua’s submission to treat Mr Sikani as a first offender, having no prior criminal convictions recorded against him, this is not an ordinary criminal offence and the offender is no ordinary uninformed citizen not conversant with the niceties of substantive and procedural laws. The antecedents of Mr Sikani discussed at length (supra) give lie to the suggestion(s) of naivety or any such disability, as does his propensity (supra).

Defence counsel further submitted in support of mitigation and leniency that the subject-matter of the disobedience had been rectified, and that things "reverted to normalcy". What counsel omits to note is that it required this court’s orders of 1 October (returnable 3 October 2002) to ensure and coerce compliance of the court’s orders of 22 April 2002. Up to that time the contemnor was content to continue his disobedience, his blatant recalcitrance. Any action demonstrative of enforcement of those original orders can be said to have taken place only after the plaintiff’s lawyers found it necessary to institute contempt proceedings (as in the George Rerebina case, supra). But then, it is only a matter of record that during this contempt proceedings, whatever little overtures may have been undertaken or extended in the direction of compliance were completely made redundant by the suspension without pay of the plaintiff on 29 May 2002 (judgment N2285, pp. 29 – 30). And what was reported to the Court on 3 October 2002 only constituted substantial compliance, not full compliance of all the terms of the orders. Putting it another way, the orders were eventually complied with under sufferance.

The Court must pause to ask at this juncture what exactly was the role of the defendants’ lawyers in this obviously belligerent and recalcitrant behaviour of the Commissioner for the Correctional Services. There was no evidence before the Court that the Solicitor-General made any effort to advise and impress upon the Commissioner on the legal obligation to comply with and give effect to the orders of the court. There was evidence of repeated reminders (by letters) to the Solicitor-General to have the orders enforced. There was here, therefore, disobedience that was contumacious, taking place under the very nose of the Solicitor-General. And the Solicitor-General is an officer of the court who, amongst other things, ought to have been vitally interested in and concerned with respect for the laws of the country and the orders and directions of the courts, and the need (legal obligation) to protect the dignity and integrity of those courts. Was the Solicitor-General condoning and encouraging contempt by the deafening silence and inaction?

The law on sentencing

The law on contempt, in general and the category under consideration here, the "disobedience contempt", is well settled in this jurisdiction as in the other Commonwealth jurisdictions influenced by and applying the English common law principles. There has been detailed discussions on this in the written judgment (Unreported N2285), and the Court hopes that this will be of some help towards an understanding of this aspect of the law.

For the purposes of the sentencing function, brief references are made, if only to re-emphasise the serious purpose of this law and its enforcement. The trial in this proceedings accorded the parties the opportunity to test the allegations, concluding with the Court’s determination of guilt according to law. As adverted to here (supra), this task now involves a judicial process Mr Sikani would be more familiar with by professional training and (long) experience.

This case raised question of disobedience by a party to a civil action of specific orders of a court of competent jurisdiction. It is in circumstances such as these that the element of public interest in the due administration of justice becomes a matter of vital importance. It is here that questions of public policy which require a balancing of conflicting interests arise.

Lord Morris summarised the necessity for this branch of the law in Attorney-General v. Times Newspapers [1974] AC. 273,302:

In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustified interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibility of administering justice are concerned with their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted.

I respectfully adopt what his Lordship says, as indeed I do what Justice Saladanha said (echoing the same sentiments) in the Supreme Court case of The Public Prosecutor v. Nahau Rooney (No. 2) [1979] PNGLR 448 at 482:

I have shown earlier how necessary it is for an ordered society to observe the rule of law and maintain the authority of the courts and judges. The stand taken by judges against the contemptuous remarks and statements is not out of a tender regard for their own feelings and not because they have false idea of their own dignity. The rule of law is central to a democratic way of life.

Commenting on the different forms of sanctions available that could be used for both punitive and coercive purposes, and the difficulty that can arise when a single act of contempt has both public and private implications, Lord Diplock in Attorney-General v. Times Newspaper (supra) stressed this duality in the following terms:

One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement . . . criminal contempt of court resembles many ordinary criminal offences, such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large (307 – 308).

In the Rooney case (supra), no less a person than the Minister for Justice was tried on three charges of contempt of court of the Supreme Court, alleging, firstly, attempt to interfere with the due course of justice by causing to be published and circulated a letter addressed to the Chief Justice thereby intending to influence the judges in a case then pending before the Supreme Court; and, secondly, that her publication (of statements) to the media for further publication over the radio and in press scandalised the judiciary.

By a majority (of 4 – 1), the Supreme Court held that the Minister should be sentenced on all three charges to imprisonment with light labour for eight months. After canvassing the authorities on the power of the courts to punish for contempt and the sentencing principles, the majority (per Wilson J; with whom Raine DCJ; Saldanha and Greville Smith JJ agreed; Kearney J dissenting) stated that imprisonment for contempt of court should only be imposed where a serious contempt had been committed. And in determining whether a sub judice contempt involving wide publication of the contemptuous statement was serious enough to warrant imprisonment, the majority added, it was relevant to consider inter alia:

• the real likelihood of interference with the due course of justice;
• the extent to which the law has been brought into disrespect or disregard;
• the culpability of the offender;
• the intention with which the act complained of is done;
• whether the desire and need to protect society should override the interests of the individual concerned.
  

In this respect it was the opinion of the Court (majority) that members of the National Executive Council (NEC), of which Mrs Rooney was one, acting in their capacities as such were not immune from liability for punishment upon being found guilty of contempt of the court. Similar sentiments were expressed by his Honour Prentice CJ, in another Supreme Court case of John Rumet Kaputin v. The State [1979] PNGLR 559, in the following terms (at 562 – 563):

This is a tragic case; when one considers the background and position held by the appellant. For myself, because of these considerations, I find great embarrassment in having to deal with it. But, inasmuch as any submissions made on the appellant’s behalf might be thought to seek special treatment because of a man’s seniority or standing in the legislative, or mercantile spheres, or of his position in customary society, I consider it necessary to say that in my opinion such a consideration may not be entertained.

His Honour referred to s 37 Constitution which, as adverted to in the judgment in the instant case, provides (in his Honour’s words) that "every person has the right to the full protection of the law – and that includes the right to have lawbreakers who act to the possible detriment of others, deterred from such behaviour". His Honour continued:

And s. 55 thereof proclaims that "Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, . . ." It should not need to be stated that all citizens of Papua New Guinea are equal in the eyes of the law and all equally are required to abide by the law.

Mr Kaputin had been convicted on a charge brought under the Criminal Code Act (not as here under the NCR), dealing specifically with Disobedience to lawful Order issued by Statutory Authority (s. 209), which offence attracted the maximum penalty of imprisonment for one year. He was sentenced to ten weeks’ imprisonment, which sentence he appealed against on the grounds that it was manifestly excessive.

The appellant was a Member of Parliament and Minister of State, and his case was no ordinary case of failure to file a return in response to a notice of requirement to do so. As the learned Chief Justice found (ibid), the case went beyond the giving of notices; an order of the court was obtained against the company secretary. It was disobeyed. In the end the learned Chief Justice was of the view, in the light of the circumstances of the grant of the orders and the subsequent disobedience, that the appellant "clearly required an effective personal deterrent to ensure compliance with the law". In this respect, his Honour was unable to conceive how imposition of a fine could provide an adequate deterrent.

In considering how best to exercise my sentencing discretion in the special circumstances of this case, I am constantly mindful of this onerous responsibility, this awesome task, in view of its public and individual implications. Which necessarily leads me to acknowledge that, whilst this is not any of those "contempt in the face of the court" situations calling for instant and summary punishment, nevertheless, the danger is ever present that this power to punish is one that could be abused and sometimes exercised hastily and arbitrarily. But I do agree, and am fortified by the comment that this is not "an argument to disprove either its existence or the necessity of" such powers: the United States Supreme Court in In re Terry [1888] USSC 248; 128 U.S. 289 (1888).

In this respect, I am humbled and greatly (and respectfully) assisted by yet another advice from the United States Supreme Court in Cooke v. United States [1925] USSC 97; 267 U.S. 517 (1925):

But [the contempt power’s] exercise is a delicate one, and care is needed to avoid arbitrary and oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backwards, and injure the authority of the court by too great leniency. (my underlining).

As has been adverted to in the discussion of the pertinent case law on the subject of powers and sanctions, a threshold question is whether conduct amounting to disobedience of a court order, but not amounting to a criminal offence, should ever attract the harsh measure of incarceration, whether on coercive grounds, punitive grounds or both. Coercion and punishment are two distinct functions served by the imposition of sanctions for disobedience or non-compliance.

Traditionally, the sentencing options available to a court at common law depended upon whether or not the disobedience was contumacious. ‘Mere’ disobedience attracted the sentence of open-ended imprisonment or sequestration of assets, whereas contumacious disobedience was punishable by fixed term imprisonment. A fine was not considered to be an appropriate sanction for any form of civil contempt: (this paragraph is helpfully extracted from) Law Reform Commission (Australia) Report No. 35, p. 314.

Helpful and respectful assistance on this serious subject comes also from the authoritative exposition of Halsbury’s Laws of England, Vol. 9, 1974 (para. 2):

Contempt . . . consists of disobedience to the judgments orders or other process of the court and involving a private injury. (Also explains in the Notes that: Although civil contempt is essentially a wrong done to the person who is entitled to the benefit of the order or judgment concerned, it also involves an obstruction of the fair administration of justice and may be punished in the same manner as a criminal contempt).

Penalty

In the light of the circumstances of the Commissioner’s disobedience discussed at length in the judgment on liability as well as here, and the case law pertinent to these circumstances, I am of the strong view that both a deterrent and denunciatory sentence is called for. The seriousness of the disobedience in this instance is well demonstrated, firstly, by the official position of the contemnor and the nature of the powers and legal obligations invested in him, and, secondly, the nature of the contempt and its effects on the individual concerned and the public generally. These have been emphasised in the foregoing discussions.

It is the opinion of this Court that the seriousness of the contempt here takes the case beyond those cases in this jurisdiction dealing with errant lawyers where fines with practice conditions were considered sufficient. The circumstances here would, in my view, properly attract the epithets: belligerent, recalcitrant and contumacious. I would suggest that the nature and degree of the contempt that has concerned this court is analogous in seriousness to the Rooney (No. 2) and Kaputin cases (supra). I would go further and respectfully suggest that, comparatively, Mr Sikani’s contempt is more serious than that of Mrs Rooney. That is to say, a Commissioner for Correctional Services fully and intimately conversant with the laws of the country and the legal obligation to comply with and give practical effect to orders and directions (and processes) of the courts, by virtue of his professional training and long experience, is more culpable than a political leader with no such benefits (or advantages) whose discharge of the political/executive responsibilities depend on seeking (or being offered) professional advice from bureaucratic minions.

And just as the two Supreme Courts in those two cases refused to, I take no account of the official position of the contemnor, his impressive educational/professional antecedents, for the purpose of treating him differently and leniently. On the contrary, these very factors go to contribute to the overall aggravating circumstances here that, I have concluded, call for both a deterrent and denunciatory sentence.

Deterrence here would, in my opinion, serve both the individual and general deterrent purposes. I accept the submissions of the learned counsel for the plaintiff that the genuiness of the public expression of remorse by Mr Sikani cannot be relied upon. And this, I am satisfied, comes from two sources: firstly, the well-documented (in the evidence and discussions in the judgment) attitude and manipulations of the Commissioner in relation to the plaintiff and the 22 April 2002 court orders; and, secondly, his propensity for belligerence, both in words and actions, and disobedience. As was concluded in the Rooney (No. 2) case, Mr Sikani needs to be taught a lesson. Contrary to what Mr Kua urges, the Commissioner has not learnt a lesson at all. It would seem sadly obvious that his professional training/education and long experience have not led him down the right path. If he is not appropriately punished now, there is no guarantee that he will treat future court orders seriously and obey them without question.

I would suggest that the excellent professional training and education he has received, and the vast practical experience accumulated over some 28 years had produced in Mr Sikani an attitude of arrogance, belligerence, indifference and dictatorial manipulation. Thus, individual deterrence must be aimed for in the sentence here.

And because of the official position and status of the contemnor here, the need to deter any like-minded leaders in the country, be they political/executive, bureaucratic, or indeed judicial, who are vested with and exercise State powers must be deterred. A lesson, a message, must be delivered that these leaders are no exception to, nor above, the laws of this country. In this way also, a message will go out, loud and clear, to the ordinary people out there in our communities the need, the obligation, to respect the laws of the country and the orders and processes of our courts.

It is in the immediate interest of the officer originally adversely affected by the acts and omissions of the Commissioner in the purported exercise of State powers, and subsequent disobedience of the orders of relief made by the court for his benefit, that the laws of the country, and the authority of our courts, should be vindicated. Similarly, there is the wider public interest that needs protection and re-assurance by such vindication. In this respect, and for the emphasising of the need, the serious need, to vindicate in the ways described here, the sentence must also reflect this Court’s, our courts’ and the community’s denunciation of such behaviour by our leaders.

Thus, the deterrence and denunciation called for here cannot be achieved by a sentence that is non-custodial (or indeed, custodial with certain conditions or options, some of which are described under s. 19(1) Criminal Code Act.

To accede to the mere administering of a caution or warning to Mr Sikani for what he has done (or not done) or impose a monetary penalty of a fine, or suspend a custodial sentence, as counsel for the defence urges, would, in my judgment, trivialise what is undoubtedly a very serious matter. It would, I suggest, send a wrong message to the wider community out there.

For a start, such lenient penalties would be interpreted as the Court giving credence to the misguided and self-serving perceptions and attitude common and popular in certain sections of the national leadership these days that they are above the law, beyond the reach of the law and courts of law. The famous public health advisory: prevention is better than cure, is so pertinent here. Cure or treatment in relation to maladministration, abuse (or excess) of State powers, disobedience and defiance of the law is only ex post facto. Rectification and remedies become available long after the direct or long-term effects of the abuse or disobedience have been felt, or become obvious. Long after the damage is done, or the harm has been caused.

This Court has no wish to be seen (or perceived) as condoning double-standards in relation to the application and enforcement of the laws of the country. This would constitute endorsement of selective application and enforcement of the laws, thereby contrary to the Judicial Oath. If people (especially members of the national leadership) feel free and entitled to question the laws, the decisions and orders of our courts (outside of and despite the well-recognised avenues and procedures for legal challenges), then the Courts’ place in a democratic society would become untenable, if not rendered unnecessary or superfluous. Take the Courts out of the democratic system and see what type of society emerges!

The law must be enforced here; the law must be vindicated. To not do so and be influenced by personal and other considerations would mean, I would suggest, condoning and giving practical expression to behaviour and attitude contemptuous and disrespectful of the laws of this country, and the authority of the courts obliged by the Constitution to apply and enforce these. To not do so would mean losing touch with a society governed by law, and giving credence to one governed at or by the whimsical manipulation of men promoting, amongst other things, personality cults. This Court has no desire to be associated with such a situation.

There’s a clear choice here, under the special circumstances of this case. The Court can either seize that moment and vindicate the law, in the process sending out the proper and right signals, by the imposition of a deterrent and denunciatory sentence, or take a backward step, contrary to its Constitutional duty and responsibility, and cater to some popular sentiment(s) that condone treating the leaders of the country, already vested with and enjoying privileged positions, different from the ordinary citizen and resident.

Let it be said that the Court is fully conscious of the possible immediate and long-term effect(s) a custodial sentence will or may have on the contemnor personally. In relation to his official position and status, comments have been made already, finding support from what the Supreme Court said in the Rooney (No. 2) and Kaputin cases (supra) about the universal application of the law, and equality under the law (ss 37 and 55 Constitution), not to mention the serious need to vindicate the law in the public interest. Thus, those personal individual considerations need to be properly balanced against the factors or considerations for the greater public good. I am mindful, of course, of the possible danger of creating a perception that the contemnor here has been made a sacrificial lamb, as it were, for the atonement or propitiation of communal or sectional sin.

If, as was determined in relation to two political and executive government leaders in the Rooney (No. 2) and Kaputin cases, this senior State office holder is not appropriately punished, other senior State officials similarly inclined will not be deterred. And, of course, ordinary members of the community, seeing or knowing of the Commissioner’s disobedience and recalcitrance go unpunished, will not understand (nor appreciate) the obligation to respect and obey the laws of the country. Then an undesirable consequence will naturally follow: the law will lose its authority; respect for it diminish or disappear; the authority and integrity of the judicial system will also diminish. The society will degenerate into one devoid of law and order; the weak and unrepresented members of our society will become easy prey and victims of the unscrupulous and the powerful.

In the end result, it is the considered judgment of this Court that the contemnor, Richard Charles Sikani, the Commissioner for Correctional Services, be imprisoned with hard labour for a term of six (6) months.

General Observations

It is obvious what is happening these days in this country. We are becoming a society that is increasingly litigious. One reason may be found in the fact that administrative decision-making is becoming increasingly personalised at the expense of due process, at the expense of the basic requirements or principles of natural justice.

Statutory State powers are being misused and abused for personal, sectional and political interests. The political and bureaucratic elites of the country use State powers as instruments of oppression, means to intimidate and victimize their opponents (real or imagined), critics and detractors.

What happened to Warder Peter Luga is a classic example. The punishment for his court victory was to be punished again and again, because his professional and bureaucratic superiors were able to abuse and manipulate the system, the processes and procedures of the administrative machinery.

The attitude of the Commissioner for Correctional Services, discussed and described in these judgments, is, unfortunately, a faithful reflection of the unhealthy culture that seems to be taking hold here. A culture suggestive of a perception that the State itself, or the national leadership that individually and collectively make up and represent the State, is or are beyond the bounds and scrutiny of the law. This perception of course leads to the arrogant and belligerent (not to mention, confrontationist) attitude that the State or its leaders cannot lose, even if they lose, court battles!

Thus, when disputes come before the courts, there is, more often than not, no respectful pause or interval between the delivery of the decisions and critical commentary that was once a feature of judicial functions and courtesies associated thereto. Lawyers and their clients, without having read, digested and understood the judgments in all their particulars and respects, "re-litigate" their disputes out in the car park, playing to their supporters and the media representatives. The courts and their decisions are constantly subjected to the uninformed and personally motivated commentaries of lawyers and parties.

This type of behaviour is capable of engendering (and does engender) disrespect and disregard for the authority of our laws and the judicial system and its processes.

The country and its people would be the grateful beneficiaries if we who are vested with State powers were ever-mindful, firstly, of the enormity and seriousness of those powers, and, secondly, their potential for abuse and misuse, to the detriment and disadvantage of the powerless majority. State powers are not vested, and intended to be exercised, for motives other than the ostensible and proper ones. State powers should never be exercised in pretence of duties and responsibilities, and to cloak vindictiveness. They should not be exercised capriciously. For the neglect of, or abuse of the powers, or the authority of, his office, a public official - including the holder of a judicial office – can render himself amenable to the criminal law: see, Paul Finn, Official Misconduct, in [1978] 2 Crim. Law Journal, 307.

Pride is a powerful narcotic but it does not do much for other human systems and more particularly other human beings. If pride takes over humility and discretion, and knowledge of what is the right thing to do and what is not, someone is bound to suffer, or be disadvantaged. It is a truism that a man is a totalitarian when he uses the powers of the government (or the State) to persecute his opponents or his detractors, or his critics.

The Commissioner is in that special category of people collectively described as the political, executive, judicial and bureaucratic leadership vested with enormous powers that I have been constantly adverting to here. We should all be humbled by these powers. The very subject of this proceedings are familiar and intimate to the Commissioner on a daily basis, by long experience and professional discharge of his constitutional, legal and administrative duties and responsibilities. So much so that the Commissioner would be in the group collectively described as officers of the court. That is, judges, magistrates, lawyers, clerks of courts, who ought to know better than the rest of the community. If these officers tend to treat the law, and orders of the court, with disdain, with lack of respect, then what hope is there left for the country, for the ordinary lay folk struggling to understand, on a day to day basis, what it is that "government people" are doing, let alone understand the intricacies and niceties of the law and legal principles.

Finally, the Constitution the supreme law of the land, vests State powers (as we have been discussing about here). It provides for rights and freedoms, guaranteeing them as entitlements of human beings. Provided also is the guarantee of protection under and equality before the law.

But what is ignored oftentimes, or conveniently side-stepped, is the equally important provisions about duties and obligations. And these appear in the Preamble, and reproduced hereunder:

Basic Social Obligations

WE HEREBY DECLARE that all persons in our country have the following basic obligations to themselves and their descendants, to each other and to the Nation:-

(a) to respect, and to act in the spirit of, this Constitution; and
(b) to recognize that they can fully develop their capabilities and advance their true interests only by active participation in the development of the national community as a whole; and
(c) to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it to participate fully in the government of the Nation; and
(d) to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interests not only of the present generation but also of future generations; and
(e) to work according to their talents in socially useful employment, and if necessary to create for themselves legitimate opportunities for such employment; and
(f) to respect the right and freedoms of others, and to co-operate fully with others in the interests of inter-dependence and solidarity; and
(g) to contribute, as required by law, according to their means to the revenues required for the advancement of the Nation and the purposes of Papua New Guinea; and
(h) in the case of parents, to support, assist and educate their children (whether born in or out of wedlock) and in particular to give them a true understanding of their basic rights and obligations and of the National Goals and Directive Principles; and
(i) in the case of the children, to respect their parents.

IN ADDITION, WE HEREBY DECLARE that all citizens have an obligation to themselves and their descendants, to each other and to the Nation to use profits from economic activities in the advancement of our country and our people, and that the law may impose a similar obligation on non-citizens carrying on economic activities in or from our country.

The orders of the Court

The contemnor, a prisoner of the State, is ordered to be remanded in custody at the Bomana Major Corrective Institution to serve a term of imprisonment for six (6) months in hard labour.
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Lawyers for the Plaintiff : Stevens Lawyers
Lawyers for the Defendants : Solicitor-General