Padura v Valakvi [2012] PGNC 254; N4894 (15 November 2012)

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CONTEMPT – disobedience of court order – punishment – individual contemnor – maximum penalty not prescribed by law – starting point –mitigating and aggravating factors – whether committal to prison or fine is appropriate – sentence of six months imprisonment imposed

The contemnor was found guilty after trial of contempt of court for disobeying an order of the National Court. She assaulted her former de facto partner, the plaintiff, and his girlfriend in a public place, contrary to a court order that required her and the plaintiff to amongst other things refrain from threatening, harassing or instigating violence against each other and to give each other respect. A hearing was held to determine the punishment. The contemnor argued that payment of a fine of no more than K500.00 was sufficient punishment. The plaintiff submitted that committal to prison for 12 months was the appropriate punishment.

Andrew Kwimberi v The State (1998) SC545
Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Doreen Liprin v The State (2001) SC673
Elias Padura v Stephanie Valakvi (2012) N4830
Eric Vele v The State (2002) N2252
Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10
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
Thress Kumbamong v The State (2008) SC1017
Yap v Tan [1987] PNGLR 227

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

1. CANNINGS J: Stephanie Valakvi has been convicted after a trial of contempt of court and this is the court's decision on punishment. She is referred to in this judgment as 'the contemnor'.

2. She was found guilty of deliberately disobeying an order of the National Court dated 18 May 2012 that gave effect to a statutory declaration between her and the plaintiff, Elias Padura, who is her former de facto husband and business partner, which evidenced an agreement as to the division and operation of two businesses that they had been operating jointly in Madang. The order also required her and the plaintiff to amongst other things refrain from threatening, harassing or instigating violence against each other and to give each other respect and to operate each other's businesses peacefully.

3. The contemnor committed the offence of contempt of court on 22 June 2012 at the Interoil Service Station, Madang town. She became angered when she saw the plaintiff's girlfriend, a young woman called Irish, sitting on the grass at the front of the service station while the plaintiff was in a vehicle inside the service station. The contemnor regarded Irish as an under-aged concubine, walked up to her, said words to the effect of 'Irish, I have finally met you, why don't you go finish your grade 8 schooling and do your own business?' and slapped her on the face, causing Irish to walk away, followed by the contemnor. There was a commotion and the attention of members of the public was drawn to it. The Court accepted the plaintiff's evidence and found that he ran in to pacify the contemnor and Irish, at one point coming between them but that, despite his telling her not to commit another contempt of court, the contemnor assaulted him, pulled his hair and cut his arm with car keys, drawing blood. A large crowd gathered and the contemnor incited the bystanders to "Fight him. Kill him!' before he explained to the bystanders that the contemnor was not his wife any more. He got into his car and left the scene quickly in fear of his life. The contemnor failed to comply with the order of 18 May 2012 in two respects:

4. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Elias Padura v Stephanie Valakvi (2012) N4830.

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

I would like the Court to consider that I have two children under my care. One is a little girl aged 14 months and my little boy is seven years old. I am very concerned about their welfare and well being.

7. A pre-sentence report was obtained from the Community Correction and Rehabilitation Service. The contemnor is 32 years old. She recently separated from her de facto partner of 12 years, the plaintiff. She has two children in her care. She lives in Madang and her parents are also here. She lives in a permanent house with three bedrooms. She and her children share the house with three adults. She has four brothers and two sisters. Family relationships are strong and stable. She has a grade 12 education and graduated with a Diploma in Business Management in 2000 from the International Training Institute, Port Moresby. She is currently doing a Bachelor's degree at Divine Word University. She is a self-employed businessperson. She owns and operates Summit Secretarial Services in Madang. Her financial position, though not buoyant, is sound. She is in good health. She accepts the blame for the incident (of 22 June 2012). She is willing to reconcile with the plaintiff and to cooperate with Probation officers. She is considered suitable for probation.

8. She is a member of the Anglican Church and her parish priest, Father Peter Hunter, Holy Trinity, Madang, has provided a written character reference, stating that she is of pleasant personality and is well liked in the community and is actively engaged in Church activities, describing her as a young woman with drive and energy and a determination to succeed. Her marriage breakdown has had a devastating effect on her as she feels abandoned with two small children and nowhere to go. Father Hunter is very concerned about the effect of her present predicament on her two children. Her actions are regarded as completely out of character. She is a valued member of the community and he believes her actions were a result of her emotions in finding her world collapsing around her. Father Hunter is happy to provide counselling services to the contemnor, which would allow her to continue to care for her two children and be a positive force within the community.

9. To determine the appropriate punishment the following decision-making process is adopted:

10. 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.

11. The court therefore has a very wide discretion as to punishment. In deciding how it should be exercised it is useful as I suggested in Newsat Ltd v Telikom PNG Ltd (2008) N3673 to set a notional maximum. Courts, generally, look first at the maximum penalty when deciding on a sentence for a criminal offence, then say that the maximum should be reserved for the worst category of cases and then assess how the case of the offender being sentenced compares with the worst case category (Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49). I have in two cases examined a number of laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum should be regarded as two years imprisonment or a fine of K5,000.00 or both (Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931; Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10). I follow that approach here.

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

13. 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?

14. The Supreme Court (despite the misgivings expressed by Salika J, Kandakasi J and Yagi J in Thress Kumbamong v The State (2008) SC1017) 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). In the case of contempt of court no punishment guidelines have been given by the Supreme Court and no starting points have been set by the National Court. I propose to do what I have done when faced with a similar scenario when sentencing for other offences: set a starting point in the middle of the available range (The State v Justin Ipa (2008) N3439, The State v Dominic Kurai (2008) N3435). The starting point I use is one year imprisonment or a fine of K2,500.00 or both. 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.

15. In selecting equivalent cases it is useful to consider the nature of the contempt committed by the contemnor. Sakora J explained in Peter Luga v Richard Sikani (2002) N2285 that contempt of court is an offence that is constituted not only by disobedience of a court order but any act or omission committed in the face of the court or outside court which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). His Honour identified five main categories of contempt:

16. The present case falls within category No 4. The leading cases on punishment for this category of contempt by an individual are summarised in the following table.

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 businessman, 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 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, 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 K500,00.00, 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 – they pleaded guilty to contempt.	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

17. In five of the eight cases the primary punishment was committal to custody and in two cases committal to custody was the default penalty.
Only in Concord v Nen was the punishment 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.

18. Two other cases are worthy of mention. First the seminal decision of the Supreme Court in 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 significant that the contemnor was sentenced to eight months imprisonment.

19. In the recent Madang case Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10 the contemnor was found guilty after a trial of three counts of contempt of court for instigating an incident outside a courtroom, within the precincts of the National Court: (1) threatening and inciting violence against and between parties to ongoing court proceedings; (2) threatening and abusing lawyers involved in those proceedings; and (3) threatening and abusing persons who may be witnesses in those proceedings. It was dealt with as a category 5 case: taking reprisals on parties and witnesses. The contemnor was punished by committal to custody for a period of 12 months, none of which was suspended.

20. 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.

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

22. Mr Ilaisa, for the contemnor, suggested that because the contemnor was acting in her individual, private capacity, as distinct from the contemnors in cases such as Sikani, Kambori and Usurup who were public officials with a higher duty to comply with court orders, this is not an appropriate case for a custodial penalty. I do not agree that that is a relevant point of distinction. Every person in Papua New Guinea, whether she or he acts in a private capacity or is a public official, has a duty to comply with the law and in particular to obey court orders, even in cases where there is a genuine belief that the order was irregular or wrong. It might be said that it is an aggravating factor if the person who disobeys a court order is a public official or a leader under the Leadership Code. But it does not follow that a person's private status should be regarded as a mitigating factor or something that makes them unsuitable for custodial punishment.

23. Should the Court commit the contemnor to prison? Or impose a fine? Or impose both forms of punishment? In Luga v Sikani Sakora J focussed on the seriousness, nature and extent of the contemnor's contempt and reached the considered view that committal to custody was a far more appropriate punishment than a fine. Though an appeal against conviction was upheld the Supreme Court said nothing on the appropriateness of the form or extent of the punishment (Richard Sikani v The State and Peter Luga (2003) SC807). I regard the considerations spelt out by Sakora J as highly persuasive and good law. As I said in Liriope and Tigavu prison terms for contempt of court provide a more effective deterrent than a fine. It is a better way of signalling the community's condemnation of the contemnor's conduct than a fine. It underlines the seriousness of the matter if a contemnor is required to spend time in prison. It reinforces the absolute duty of everyone to comply with court orders.

24. Mr Ilaisa urged me to have acute regard to the welfare of the contemnor's children and not to impose a prison term. A fine of K500.00 would be sufficient punishment, he submitted. Mr Windi for the plaintiff contended that a prison term of at least 12 months was called for. I take into account the effect that a prison term will have on them but the court is not giving consideration to a lengthy term and it is relevant that the children are living in a house in which there are three adults other than their mother, so it is reasonably to be expected that adequate arrangements can be made for the time that their mother is away.

25. Committal to custody should not be regarded as a drastic form of punishment or something reserved for the worst cases of contempt or cases in which the contemnor has no children to care for. Children inevitably suffer when a parent is sent to prison. For a disobedience contempt the previous cases show that a prison term is the most appropriate form of punishment: the natural and ordinary consequence of being found guilty of this type of offence. I have decided that the most appropriate form of punishment in this case is committal to custody.

26. The question here is: what should the term of imprisonment be? Both the number and the strength of the mitigating factors are greater than that of the aggravating factors. Therefore the term should be lower than the starting point. 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, Kambori and Usurup, 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. I fix the term of imprisonment at six months.

27. 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.

28. 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 is some form of compensation to and reconciliation with the victims of the contempt (other than the Court and the justice system), ie the plaintiff and his friend. The problem with that approach is that neither of them, particularly the plaintiff, have shown any interest in reconciliation. The welfare of the children is another significant factor in deciding whether to suspend the punishment but no reason has been advanced for it being a compelling factor. Ultimately I consider that suspending the punishment is not appropriate as it would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment. The message needs to be driven home that contempt of court is an extremely serious matter. That message is best conveyed by requiring the contemnor to spend her time in custody. None of the punishment will be suspended.

29. 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 at the discretion of the court. The contemnor is not a corporate entity and it is not a case that has a commercial character. Contempt proceedings are essentially criminal in nature. It is not appropriate to order costs against the contemnor.

Warner Shand Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Defendant/ Contemnor

National Court of Papua New Guinea

Padura v Valakvi [2012] PGNC 254; N4894 (15 November 2012)