N4956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 297 OF 2011

MADANG COCOA GROWERS EXPORT CO LIMITED
Plaintiff

V

NOILAI GUNAR
First Defendant

GEE GUNAR
Second Defendant

MADANG PROVINCIAL GOVERNMENT
Third Defendant

Madang: Cannings J
2012: 12 November,
2013: 23, 31 January

CONTEMPT – disobedience of court order – punishment – individual contemnors – whether committal to prison or fine is appropriate – whether appropriate to suspend punishment

Two persons (the contemnors) were found guilty after trial of contempt of court for disobeying an order of the National Court regarding occupation and use of a warehouse. A hearing was held to determine the punishment. The contemnors argued that payment of a moderate fine or a suspended prison sentence was sufficient punishment. The plaintiff submitted that committal to prison for two years for each contemnor was necessary.

Held:

(1)	A useful starting point for punishment purposes is committal to prison for 12 months or a fine of K2,500.00 or both. The court should then consider punishment imposed in equivalent cases and the mitigating and aggravating factors to assess the form and extent of the appropriate punishment.
(2)	Mitigating factors are: the contemnors did not engage in any other contumacious conduct except by disobeying the Court's order; each has co-operated with the court; each has attempted to purge their contempt; no prior convictions.

(3)	Aggravating factors are: the contemnors breached the Court's order in a way that had an immediate and seriously deleterious effect on other persons; and in the case of one of the contemnors he being the Provincial Administrator breached his duty as a leader to be a role model for the People of the Province and Papua New Guinea as to how they should respect and comply with orders of the National Court.

(4)	The seriousness of the matter warranted committal to prison for a period of six months in the case of the first contemnor and 12 months in the case of the second contemnor.

(5)	This was an appropriate case in which to suspend the punishment for each contemnor subject to payment of compensation to the plaintiff (K5,000.00 in the case of the first contemnor, K10,000.00 in the case of the second contemnor) within 14 days and compliance with other strict conditions.

Cases cited

The following cases are cited in the judgment:

Elias Padura v Stephanie Valakvi (2012) N4830
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
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881
Newsat Ltd v Telikom PNG Ltd (2007) N3673
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

S Asivo, for the plaintiff, with leave of the Court
B W Meten, for the first contemnor, G Gunar
Y Wadau, for the second contemnor, B Lange

31 January, 2013 

1. CANNINGS J: Gee Gunar and Bernard Lange have been convicted after a trial of contempt of Court and this is the Court's decision on punishment. They were found guilty of deliberately disobeying an order of the National Court dated 25 June 2012 that gave the plaintiff, Madang Cocoa Growers Export Co Ltd, exclusive occupation and use of a warehouse in Madang town known as the "DPI Buffalo Shed" or "Number 2 Didiman Station" and required the warehouse to be vacated and left in good order and condition by 31 July 2012.

2. The first contemnor, Mr Gunar, who is the second defendant in ongoing proceedings regarding the warehouse, disobeyed the order by leaving his property in the warehouse thus not allowing the plaintiff exclusive use and occupation of it and by not vacating the warehouse by the date ordered and by not leaving it in good order and condition.

3. The second contemnor, Mr Lange, is the Provincial Administrator of Madang Province. He is not a defendant in the ongoing proceedings but he is the chief executive officer of Madang Provincial Government, which is one of the defendants to which the order of 25 June 2012 was expressly directed. He is the administrative head of the staff in the province and responsible for efficient management of administrative services in the province. His constitutional duty was to ensure that any orders of any court directed at Madang Provincial Government were complied with. He failed to discharge that duty and was found to have failed personally to comply with the orders of 25 June 2012 in the same way that the first contemnor failed to comply. Further details of how the contemnors committed contempt of court are set out in the judgment on verdict, Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881 (note that in that judgment, in which six contemnors were involved, Mr Gunar was the second contemnor and Mr Lange the third contemnor).

ANTECEDENTS

4. Neither contemnor has any prior conviction.

ALLOCUTUS

5. Each contemnor was given the opportunity to address the Court on the question of punishment.

Gee Gunar: I accept the Court's orders and I apologise for the inconvenience I have caused. I work on important projects for the Lutheran Church. This is my first time to be in Court. I am married with three children, who are attending school.

Bernard Lange: I understand that I am liable as chief executive officer of Madang Provincial Government for the acts and omissions of the provincial administration. I was under the impression that the whole matter was an administrative matter between Steven Asivo and Noilai Gunar, directors of the Madang Cocoa Co. I sincerely apologise for non-compliance with the Court's orders. I am married with two children, one aged 16 and the other aged 13, and both are attending international schools which costs me K30,000.00 in school fees. I joined the Madang Provincial Administration in 1988. I have no criminal record. I have provided character references for the Court's consideration. I have done a lot of project negotiations for Madang Province, which will soon materialise. I ask for a non-custodial sentence.

PRE-SENTENCE REPORTS

6. Pre-sentence reports were prepared by the Community Correction and Rehabilitation Service. Gee Gunar is aged 50 and is from Sein village in the South Ambenob area of Madang Province and lives in the village. His father is deceased. He is married with three children. He has a grade 10 education. He has a long employment record and currently holds the position of Secretary of the Lands and Property Department of Madang Provincial Government. He is the co-ordinator of land mediation concerning the Ramu Nickel Project. He has unspecified financial problems. His health is sound and he does not drink alcohol. He is an active member of the Lutheran Church and holds a number of important administrative positions within the Church. He is a respected public figure in the local community. He is recommended for probation.

7. Bernard Lange is aged 52 and is from Giri village in the Bogia District of Madang Province and lives in Madang. He is married with four children, two of whom are adopted. Also wholly dependent on him for financial support are his brother and his elderly father who live in town. He has a Bachelor of Arts Degree from the University of Papua New Guinea, a Graduate Diploma in Human Resource Development from Curtin University and a Masters of Educational Leadership from Divine Word University. After employment in 1980 with the Registrar-General's office and later ANZ Bank he joined the Madang Provincial Administration in 1988 as an Assistant Staff Development Officer. He was appointed Provincial Administrator in 2010. Apart from high blood pressure his health is sound. He is an active member of the Catholic Church. His Parish Priest Father Joseph Durero SVD describes him as a legend in the parish, someone who has a loving heart for God and for people and who is considered as a model especially for the young generation. Also providing a character reference is Mr Stotick Kamya, Deputy General Manager of Community Affairs, Ramu Nico Management (MCC) Ltd, who speaks highly of Mr Lange's long period of service to Madang Province and his deep appreciation of community and cultural values and says he is a person of respect and significance within the civil service and the community at large.

DECISION MAKING PROCESS

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

•	step 1: what is the maximum punishment?
•	step 2: what is a proper starting point?
•	step 3: what punishment has been imposed in equivalent cases?
•	step 4: what are the mitigating and aggravating factors?
•	step 5: what is the appropriate form of punishment?
•	step 6: what should the extent of the punishment be?
•	step 7: should all or part of the punishment be suspended?

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

9. 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.

10. 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. I have in other cases examined laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum is 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).

11. Mr Asivo for the plaintiff submitted that it would be better to compare the sort of contempt committed in this case with the commission of fraud offences contrary to the Companies Act 1997 which have maximum penalties of K200,000.00 or five years imprisonment. He also submitted that the contemnors were responsible for the plaintiff incurring a maintenance bill and damages for loss of property amounting to more than half a million Kina. I am not persuaded by those submissions. I agree with Mr Meten for the first contemnor who pointed out that the plaintiff has a claim for compensation in respect of the unlawful occupation of the warehouse in the period before 25 June 2012, which is yet to go to trial. It is important not to confuse the issue of compensation under that claim with the punishment to be imposed for contempt of court.

12. I follow the approach I have taken in the other cases referred to and use a notional maximum of two years imprisonment or a fine of K5,000.00 or both. There might be cases in which the nature and extent of the contempt warrant sterner punishment. However, this is not such a case.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. 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.

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

14. This is a disobedience type of contempt (Peter Luga v Richard Sikani and The State (2002) N2286). As I pointed out in Elias Padura v Stephanie Valikvi (2012) N4894 it has been customary to punish this sort of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

15. I will highlight the mitigating and aggravating factors for each contemnor, as they ultimately govern the form and extent of the punishment.

Gee Gunar

Mitigating factors

1	The contemnor did not engage in any other contumacious conduct except by disobeying the order of the court. He did not, for example, say that he did not care less about the National Court order or anything of that sort.

2	He has attempted to purge his contempt by moving his property out of the warehouse.

3	He has co-operated with the court in the resolution of the contempt charge, including complying with the conditions of his bail.

4	He has no prior conviction for contempt or for any criminal offence.

5	He is well regarded in the local community and his Church.

Aggravating factor

16. His conduct had an immediate and serious deleterious effect on other persons: the plaintiff company and its shareholders and staff and their families.

Bernard Lange

Mitigating factors

1	The contemnor did not engage in any other contumacious conduct except by disobeying the order of the court.

2	He has attempted to purge his contempt by moving the Provincial Government's property out of the warehouse.

3	He has co-operated with the court in the resolution of the contempt charge, including complying with the conditions of his bail.

4	He has no prior conviction for contempt or for any criminal offence.

5	He has a long period of service to the Province and is well regarded in the local community and his Church.

17. I reject the submission of Mr Wadau that mitigating factors are that Mr Lange genuinely thought that the court proceedings involving the plaintiff were an internal matter concerning the affairs of the company and that he was not properly advised by two senior officers of the Madang Provincial Administration. It was established at the trial that he was served with the order of 25 June 2012 and received a number of letters from Mr Asivo pointing out the consequences of disobedience of the court order. It was his personal responsibility to ensure that the orders were complied with. Mr Wadau has also highlighted that since being found guilty of contempt, Mr Lange has taken disciplinary action against the two officers for amongst other things their failure to facilitate his instructions to remove Provincial Government equipment from the warehouse. This does not mitigate the offence or the punishment. If anything it is an aggravating factor as it suggests that Mr Lange is not accepting responsibility for his disobedience of the Court order. He is passing the buck.

Aggravating factors

1	His conduct had an immediate and serious deleterious effect on other persons: the plaintiff company and its shareholders and staff and their families.
2	He breached his duty as a leader to be a role model for the People of the Province and Papua New Guinea as to how they should respect and comply with orders of the National Court.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

18. Should the Court commit either or both of the contemnors to prison? Or impose fines? Or impose both forms of punishment? As I said in Liriope and Valikvi 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 (Yap v Tan [1987] PNGLR 227).

19. 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. 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 (John Rumet Kaputin v The State [1979] PNGLR 559). The most appropriate form of punishment in this case is committal to custody for both contemnors.

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

20. What should the term of imprisonment be? In the case of Gee Gunar 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. Mr Asivo submitted that a two-year sentence is warranted on the basis that there are elements of fraud and dishonesty in this case that make it similar to Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, where the contemnors each received an 18-month prison sentence. They fraudulently obtained a cheque for K500,000.00 for timber royalties and disobeyed a National Court order requiring them to produce to the Court within 14 days all documents relating to the payment.

21. I reject that submission. I consider that this was a case of reckless and ignorant disregard of a court order rather than a contemnor acting with fraudulent or dishonest intent. It has more in common with the recent case of Stephanie Valikvi, where the contemnor, a private citizen as distinct from someone holding a leadership position or exercising public powers, disobeyed a National Court order that required her to refrain from harassing or instigating violence against her former de facto partner by assaulting him and his girlfriend in a public place. The punishment was a six-month prison term. I consider that would be an adequate and appropriate punishment for Gee Gunar. It is not necessary for a fine to be imposed in addition to such a term of imprisonment.

22. Bernard Lange's case is more serious. He is a very senior public official. He is subject to the Leadership Code. He is expected to be a role model for everyone in this province as to how to uphold the Rule of Law. He is expected to lead by example and to obey National Court orders unless by lawful means he takes steps to have the orders set aside or varied. His breach of these solemn obligations is a major aggravating factor, warranting a longer term of imprisonment than in the case of Gee Gunar. I fix the term of imprisonment as 12 months.

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

23. Suspending all or part of the prison terms 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.

24. Suspension must be seriously considered in this case as each contemnor has a favourable pre-sentence report recommending it. The other weighty consideration is the attitude of the plaintiff, Madang Cocoa Growers Export Co Ltd. I asked for a supplementary pre-sentence report on that issue as it was not clear whether Mr Asivo, who was representing the plaintiff in court, was accurately representing its attitude, as distinct from his own, to the question of suspending the punishment. He submitted vociferously that there should be no suspension, which is clearly his personal view. But is that the attitude of the company? It transpires that it is not. Mr Ignatius Ingke of the Community Correction and Rehabilitation Service reported after interviewing the directors of the company that the company's attitude is that it would prefer to get some form of compensation rather than see the contemnors imprisoned. Mr Ingke reported that the directors "were in favour for some form of leniency and were strongly requesting the court to consider compensation".

25. I have therefore decided to suspend the punishment subject to conditions including the payment of compensation to the plaintiff by each contemnor. This will be compensation in respect of the inconvenience and aggravation incurred by the plaintiff as a result of the contemnors' disobedience of the Court's order. It does not detract from the right of the plaintiff to compensation in accordance with the terms of the order of 25 June 2012. The amount of compensation to be paid by each contemnor will reflect the extent of their punishment. I agree with Mr Asivo that it should not be a slap on the wrist. The amounts must be substantial and be paid quickly and personally by the contemnors and not by Madang Provincial Government. A reasonable sum in the case of Gee Gunar is K5,000.00 and in the case of Bernard Lange, K10,000.00. I will allow 14 days to pay. The punishment is fully suspended subject to these conditions:

(a)	(i) in	the case of Gee Gunar he must personally pay compensation of K5,000.00 to the plaintiff, which shall not be paid by Madang Provincial Government, within 14 days after the date of punishment and appear in the National Court on 15 February 2013 to demonstrate compliance; and (ii) in the case of Bernard Lange he must pay compensation of K10,000.00 to the plaintiff, which shall not be paid by Madang Provincial Government, within 14 days after the date of punishment and appear in the National Court on 15 February 2013 to demonstrate compliance;

(b)	must report to the Probation Office within three days after the date of punishment;

(c)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(d)	must not leave Madang Province without the written approval of the National Court;

(e)	must perform at least two hours unpaid community work each week at a place notified to the Probation Office;

(f)	must attend his local Church every weekend for service and worship and submit to counselling;

(g)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h)	must not consume alcohol or drugs;

(i)	must keep the peace and be of good behaviour;

(j)	must have a satisfactory probation report submitted to the National Court Registry at Madang and appear in Court every three months after the date of punishment, the first appearance for that purpose being on 9 May 2013;

(k)	if either of them breaches any one or more of the above conditions, shall be brought before the National Court and the relevant contemnor asked to show cause why he should not be committed to prison to serve the rest of the period of punishment.

COSTS

26. 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 contemnors are individuals and the court has ordered that they pay substantial sums in a short period as one of the conditions of their suspended punishment. Ordering them to pay the plaintiff's costs might be oppressive. Contempt proceedings are essentially criminal in nature. It is appropriate that the parties bear their own costs.

ORDER

(1)	The contemnors, having each been convicted of contempt of court, are punished as follows:

Details required by Criminal Justice (Sentences) Act 1986	Gee Gunar	Bernard Lange	
Period of punishment imposed	6 months committal to prison	12 months committal to prison	
Pre-punishment period to be deducted	Nil	Nil	
Resultant length of punishment to be served	6 months committal to prison	12 months committal to prison	
Amount of punishment suspended	6 months committal to prison	12 months committal to prison	
Time to be served in prison	Nil, subject to compliance with conditions of suspended punishment	Nil, subject to compliance with conditions of suspended punishment	

(2)	The parties shall bear their own costs.

Ruling accordingly.
_________________________________________________

Meten Lawyers: Lawyers for the contemnor, G Gunar
Young Wadau Lawyers: Lawyers for the contemnor, B Lange