Liriope v Usurup [2009] PGNC 244; N3931 (15 July 2009)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

DR JETHRO USURUP
CHIEF EXECUTIVE OFFICER, MODILON GENERAL HOSPITAL
Contemnor

CONTEMPT – failure to comply with court orders – punishment – individual contemnor – determination of notional maximum penalties where maximum not prescribed by law – identification of starting point – assessment of mitigating and aggravating factors – whether committal to prison or fine is appropriate – sentence of six months imprisonment imposed.

The contemnor was found guilty of contempt of court for deliberately failing to comply with an order of the National Court. He took disciplinary action against a nurse employed by a Public Hospital of which he was the Chief Executive Officer without the leave of the National Court, while a court order was in place ordering that no disciplinary action be taken against the nurse without the leave of the court. A hearing was held to address the question of punishment. The contemnor argued that payment of a fine was sufficient punishment. The prosecuting party, however, submitted that committal to prison was the appropriate punishment.

Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Doreen Liprin v The State (2001) SC673
Eric Vele v The State (2002) N2252
John Rumet Kaputin v The State [1979] PNGLR 559
Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923
Manu Kovi v The State (2005) SC789
Newsat Ltd v Telikom PNG Ltd (2007) N3673
Peter Luga v Richard Sikani and The State (2002) N2286
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Re Contempt of Court Proceedings against Valentine Kambori (No 3) (2003) N2490
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop v Bishop Brothers [1988-89] PNGLR 533
Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572
Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49
The State v Dominic Kurai (2008) N3435
The State v James Yali (2005) N2989
The State v John Rumet Kaputin [1979] PNGLR 544
The State v Justin Ipa (2008) N3439
Yap v Tan [1987] PNGLR 227

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

1. CANNINGS J: In January this year the contemnor, Dr Jethro Usurup, was found guilty of contempt of court for failing to comply with an order of the National Court. I now have to decide on his punishment.

2. The National Court order that Dr Usurup failed to comply with was made by me in November 2006 in the course of court proceedings, OS No 838 of 2006, commenced by Modilon General Hospital against Sr Diane Liriope and Sr Elizabeth Wukawa and 140 other nurses. Dr Usurup was then the Chief Executive Officer of the Hospital. The nurses had allegedly gone on strike and the Hospital took them to court, seeking orders restraining them from conducting any 'stop works' and declarations that meetings held by them were unauthorised and unlawful.

3. On 20 November 2006 I ordered that the defendants – the nurses – were restrained from taking strike action without the leave of the court and also that:

No disciplinary action is to be taken against the defendants without the leave of the court.

4. Dr Usurup disobeyed that order in September 2007 when he took disciplinary action against Sr Liriope while the court proceedings were still current without seeking or obtaining the leave of the court. He laid two disciplinary charges against her: absconding from official duty and publicly making disparaging written comments on his administration of the Hospital without the consent of an authorised officer. In October 2007 he found her guilty of both charges and dismissed her from the Public Service.

5. Sr Liriope then commenced contempt proceedings, in OS No 765 of 2007, against Dr Usurup and seven others including the chairman of the Hospital board, the Hospital's lawyer and five of the Hospital's staff. The others were found not guilty as the court order had not been served on them and/or they had not failed to comply with it.

6. Dr Usurup was found guilty as the order of 20 November 2006 was clear and unambiguous, he had been properly served and he was the person who deliberately failed to comply with it. He wilfully disobeyed the order.

7. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572.

9. The contemnor was given the opportunity to address the court on the question of punishment. He said:

If the court has found me guilty I am truly sorry. I did not do it intentionally. It was done in my capacity as Chief Executive Officer of Modilon General Hospital.

10. Dr Usurup is aged in his early 50s and is from New Ireland Province. He has been married for 31 years to his wife Leah and they have four children. He is an active member of the Catholic Church and involved in sports administration.

11. He is a medical doctor by profession, having graduated from the University of Papua New Guinea in 1978, and has held positions at various hospitals throughout the country. He for a long period held a very senior position in Defence Force, holding the rank of Lieutenant Colonel and being responsible for supervision of medical services to the Force. He was at one stage the Medical Officer for the University of Papua New Guinea. He has worked widely in the area of public health and in the mid-1990s was Chief Medical Officer with both Misima and Porgera Mines. He has participated extensively in education programs in the medical profession and has been instrumental in implementation of many community health initiatives.

12. He was appointed Chief Executive Officer of Modilon General Hospital in 2004 and held that position until the expiry of his term of appointment in 2008. He is currently employed by JTA International, holding the position of Program Director, Lihir Islands Community Health Program. He is required to deal with the senior management of organisations such as the Department of Health, Lihir Mining Ltd, University of Queensland, Ok Tedi Mining Ltd, the PNG Institute of Medical Research and the New Ireland Provincial Government.

13. Character references have been provided to the Court by Community Health Coordinator of Lihir Gold Ltd, Dr Billy Selve, the Vice-President (Administration) of Divine Word University, Mr Benjamin Naing, and the Secretary for Health, Dr Clement Malau. All referees speak highly of Dr Usurup's professional competence, commitment, leadership qualities and personal integrity.

14. To determine the appropriate penalty I will adopt the following decision making process:

15. The law under which this matter has been prosecuted – the National Court Rules – does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) simply states:

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

16. The court therefore has a very wide discretion as to punishment. In deciding how it should be exercised it is useful as I suggested in Newsat Ltd v Telikom PNG Ltd (2008) N3673 to set a notional maximum. Courts, generally, look first at the maximum penalty when deciding on a sentence for a criminal offence, then say that the maximum should be reserved for the worst category of cases and then assess how the case of the offender being sentenced compares with the worst case category (Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49).

17. How do you set a notional maximum for contempt by an individual? A useful approach is to look at other laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies. Some of these laws are shown in the table below.

No	Institution	Law	Punishment
1	Ombudsman Commission	Organic Law on the Ombudsman Commission, Section 32; Organic Law on the Duties and Responsibilities of Leadership, Section 33	3 months imprisonment or K500.00 fine
2	Leadership Tribunal	Organic Law on the Duties & Responsibilities of Leadership, Section 33	3 months imprisonment or K500.00 fine
3	Salaries and Remuneration Commission	Salaries and Remuneration Commission Act, Section 18	3 months imprisonment or K500.00 fine
4	National Parliament	Parliamentary Powers and Privileges Act, Section 7	6 months imprisonment or K400.00 fine
5	Any court or any person authorised by law to make a lawful order	Criminal Code, Section 206 (note: the offence is 'disobeying a lawful order')	1 year imprisonment
6	Commission of Inquiry	Commissions of Inquiry Act, Section 11	2 years imprisonment or K5,000.00 fine or both

18. Contempt of court is a very serious matter. 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). The Constitution recognises the significance of contempt of court as an offence in various provisions. Section 37(2) states generally that nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law – but creates an exception in the case of contempt of court. Sections 160(2) and 163(2) provide that the Supreme Court and the National Court are superior courts of record, each one having "the power to punish the offence against itself commonly known as contempt of court".

19. Contempt of the National Court must in my view be treated with at least as much seriousness as the most serious of the statutory contempt offences, which is the offence created by the Commissions of Inquiry Act. Therefore the appropriate notional maximum penalty in the case of an individual contemnor is two years imprisonment or a fine of K5,000.00 or both.

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

21. Judges often refer to a starting point when they are determining a sentence, ie a reference point against which the case before them can be assessed. The judge assesses whether the case is more, or less, serious than the starting point. If it is, to what extent is it more serious or less serious?

22. The Supreme Court often sets starting points when giving sentencing guidelines in the course of deciding criminal appeals. For example, the Court gave detailed guidelines for the homicide offences of manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789. Sentencing starting points have not been provided for in all criminal offences, however, and in such cases, the National Court is inclined to set its own (The State v James Yali (2005) N2989).

23. In the case of contempt of court no punishment guidelines have been given by the Supreme Court and no starting points have been set by the National Court. I propose to do what I have done when faced with a similar scenario when sentencing for other offences: set a starting point in the middle of the available range (The State v Justin Ipa (2008) N3439, The State v Dominic Kurai (2008) N3435).

24. The starting point I use is thus one year imprisonment or a fine of K2,500.00 or both.

25. With that starting point in mind, I will now consider the form and extent of punishment that has been imposed in previous cases and the mitigating and aggravating factors of the present case.

26. 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:

27. The present case falls within category No 4: Dr Usurup has been found guilty of a disobedience contempt. The leading cases on punishment for this category of contempt by an individual are summarised in table 2.

No	Case	Details	Punishment
1	The State v John Rumet Kaputin [1979] PNGLR 544, Greville-Smith J	Contemnor, a Member of Parliament, failed to comply with National Court order directing him as company secretary to lodge annual return within 3 months. (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 businessman, wilfully disobeyed orders of the Supreme Court requiring him to co-operate with the receiver of a company – 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 businessman, 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) N2286, Sakora J	Contemnor, Commissioner of the Correctional Service, failed to comply with a National Court order to reinstate a dismissed officer. (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 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 K500,00.00, being timber royalties, and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating the payment – they pleaded guilty to contempt	18 months imprisonment x 2

28. In four of the seven cases, the primary punishment was committal to custody and in two cases committal to custody was the default penalty.
It was only in Concord v Nen that the consequence of the contempt was a relatively lenient order for payment of costs; and that was because the disobedience was not considered intentional. The consistent practice of the National Court has therefore been to treat a conviction for a disobedience contempt as warranting committal to custody.

29. It is also relevant to consider the leading case of Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448. Although it was not a disobedience contempt (the contemnor, the Minister for Justice, was convicted of publication of a document that scandalised the Supreme Court, so it was a category 3 case) it is relevant to punishment as the contemnor was sentenced to eight months imprisonment.

30. Subject to my consideration of all the circumstances of the present case it is clear that imposing a term of imprisonment as punishment (either as a primary or default penalty) would be consistent with the approach that has been taken by the National Court and the Supreme Court over the last 30 years.

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

32. Before moving to the aggravating factors, there are two mitigating factors propounded by Mr Ilaisa that I do not accept.

33. First, he submitted that when Dr Usurup took disciplinary action against Sr Liriope, Dr Usurup honestly believed that he was acting lawfully under the Public Services (Management) Act and was not contravening the National Court order. I rejected a similar argument at the trial and concluded that Dr Usurup did not honestly believe that he did not have to obtain the leave of the court to take the action that he did. His state of mind cannot be regarded as a mitigating factor.

34. Secondly, there is the issue of the apology. It is the normal practice when a Judge is deciding on a sentence in a criminal case to consider whether the offender has expressed remorse for what he has done. If the remorse is genuine, it is taken into account as a mitigating factor. Dr Usurup offered through his allocutus an apology to the court. But it was qualified and perfunctory. The apology – "I am truly sorry" – was prefaced by the words "if the court has found me guilty". This suggests that he does not appreciate or want to acknowledge that he has been found guilty. There is always a danger in interpreting too literally what an offender says in allocutus. Sometimes the allocutus is administered immediately after the offender has been found guilty. He might be in a state of shock and just say things off the cuff that he later regrets or forget to say the important things. But here the allocutus was administered five months later after a written judgment on verdict was delivered. Dr Usurup is an educated and intelligent man of vast experience and he had ample time to reflect on what he would say to the court by way of apologising for his actions or purging his contempt.

35. What the Court received was a hollow apology that does not atone for his disrespect and disregard of the Court and the law. It does not amount to an apology to the Court and to the public for the interference in the due administration of justice that he is responsible for. No mention was made of Sr Liriope, the person who directly suffered as a result of the offence that Dr Usurup committed. It was not an expression of genuine remorse and therefore cannot be regarded as a mitigating factor.

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

37. In a case such as this, involving a non-violent offence, the courts often hesitate before imposing a custodial penalty as there is no pressing need to protect the community from the offender (Doreen Liprin v The State (2001) SC673; Eric Vele v The State (2002) N2252.) However, prison terms, I consider, tend to provide more of a deterrent than a fine. A prison term can much more effectively signal the community's condemnation of the offender's conduct than a fine. A prison term is often regarded in the eyes of the community as a more appropriate punishment than a fine.

38. There is always a chance that a fine will be paid by someone other than the offender; and if that happens many people will feel that the offender has not really been punished at all – his crime is paid for by someone else. That is a real consideration in this case as Mr Ilaisa has suggested that if the court imposes a fine on Dr Usurup it should be paid by Modilon General Hospital. Dr Usurup committed contempt in the course of performing his duties as Chief Executive Officer of the Hospital, so it is the Hospital that should pay the fine, Mr Ilaisa submitted. It would not be appropriate to commit him to prison, Mr Ilaisa contended, as he did not commit his wrongful act in an individual capacity, he committed it in his capacity as the 'legal creature' known as Chief Executive Officer of a Public Hospital. The argument is that he should be punished as if he were a corporate entity rather than an individual and therefore the only appropriate punishment is a fine.

39. I find this argument to be misconceived. Dr Usurup committed the act that put him in contempt of the court – taking disciplinary action against Sr Liriope without the leave of the court – as an individual. Though he was acting in his capacity as Chief Executive Officer he cannot hide behind the corporate veil and say that some legal creature other than himself committed the contempt.

40. Imposing a fine would not, I consider, make Dr Usurup personally responsible for what he did. He must bear personal responsibility for what he did and he must be punished in a way that makes him personally responsible and is seen by the community to be fair and appropriate. These are the sorts of considerations that led Greville-Smith J in the National Court in Kaputin's case to say:

I have considered ... imposing a fine in this case, but have come to the conclusion that a fine, even a very substantial one, would not sufficiently reflect the seriousness of this matter, the gravamen of which is disobedience for a long period of an order of this Court. The impact of a fine is often too indeterminate and too diffuse. Often the money is supplied by others, at least in the short term, and is not repaid for a long time, if ever, or creditors or dependants or kinsmen of the accused suffer by its payment.

41. In Luga v Sikani Sakora J focussed on the seriousness, nature and extent of the contemnor's contempt and reached the considered view that committal to custody was a far more appropriate punishment than a fine. Though an appeal against conviction was upheld the Supreme Court said nothing on the appropriateness of the form or extent of the punishment (Richard Sikani v The State and Peter Luga (2003) SC807). I regard the considerations spelt out by Sakora J as highly persuasive and good law.

42. I do not agree that committal to custody should be regarded as a drastic form of punishment or something that needs to be reserved for the worst case categories of contempt. For a disobedience contempt the previous cases show it will often be clearly the most appropriate form of punishment: the natural and ordinary consequence of being found guilty of such a serious offence.

Whilst the Court is very mindful of who and what he is, it must be highlighted in this case, as it has been in numerous other cases that contempt of court is a serious matter. And while the Court will consider a person's interest on the circumstances of his case, the Court does not stop to look and select that the person should not go to prison because he is a politician or a senior civil servant or bureaucrat. It is one law for everybody.

I have especially taken into account the submission that the contemnor be spared a prison term. But I am of the view that the Court must not allow its authority, due process and its administration of justice to be ridiculed and flouted. When this happens, it is my view that the Court must be able to deal with the contemnor sternly and decisively.

For these reasons, I consider that a custodial sentence is warranted to act as a personal and public deterrence to like-minded bureaucrats and persons that they will be treated in the same manner.

44. I take into account the embarrassment and shame that Dr Usurup will feel if he is imprisoned. It will inevitably cause hardship and distress to his wife and family and may directly impair his children's education. These unfortunately are the by-products of any breadwinner being imprisoned. Many more people than just the offender suffer. Dr Usurup is in no special category in that regard.

45. I also take into account that Dr Usurup is presently engaged in many significant community health programs not only in his home province but other parts of the country. His absence in prison may well be felt by many people in a number of communities. Against that, his presence in prison may be of great assistance in improving the health and hygiene levels of the prison population.

46. Having considered all the above, I have decided that the most appropriate form of punishment is committal to custody.

47. The question here is: what should the term of imprisonment be? Both the number and the strength of the aggravating factors are equal to the number and the strength of the mitigating factors. There would be considerable justification for setting the term of imprisonment at the starting point earlier identified: 12 months imprisonment.

48. However, I think that could be regarded as an excessive penalty in light of the other prison terms that have been imposed for contempt (summarised in table 2). The longest reported sentence is in the case of Peter Gerari & Lawrence Polain, where the contemnors were sentenced to 18 months imprisonment each. That case involved elements of fraud and dishonesty that are not evident in the present case. The present case has much more in common with the cases of Sikani and Kambori, both of which resulted in six-month prison terms. I think that would be an adequate and appropriate punishment in all the circumstances. It is not necessary for a fine to be imposed in addition to such a term of imprisonment.

49. Suspending all or part of the prison term is an option under Order 14, Rule 49(3) of the National Court Rules, which states:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

50. In some cases (eg Yap v Tan and Bishop Bros) prison terms for contempt have been suspended on condition that the contemnor do certain things. One possibility in the present case, if Dr Usurup had still held the position of Chief Executive Officer of the Hospital, would have been to suspend the prison term on condition that he reinstate Sr Liriope. However, Dr Usurup is no longer the Chief Executive Officer. He has no power of reinstatement. Besides that, I feel that to suspend the sentence would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment.

51. The message needs to be driven home that contempt of court is an extremely serious matter and that no one is above the law. That message is best conveyed by requiring the contemnor to spend his time in custody. None of the punishment will be suspended.

52. These contempt proceedings have been an adjunct to civil proceedings and therefore it would not be inappropriate to order that the successful party have its costs paid by the losing party. However, costs are always ordered at the discretion of the court. Here, the contemnor is not a corporate entity and it is not a case that has a commercial character and the proceedings are essentially criminal in nature. Therefore I do not think it would be appropriate to order costs against the contemnor.

Young Wadau Lawyers: Lawyers for the plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the Contemnor

National Court of Papua New Guinea

Liriope v Usurup [2009] PGNC 244; N3931 (15 July 2009)