Kaidai v Nombri [2014] PGNC 276; N5741 (26 September 2014)

N5741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 37 OF 2014

ROBERT KAIDAI FOR HIMSELF AND ON BEHALF OF 120 OTHER EMPLOYEES OF LUTHERAN SHIPPING, MADANG
Plaintiffs

V

AGUA NOMBRI
Contemnor

Madang: Cannings J
2014: 15, 26 September

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

The contemnor was found guilty after trial of contempt of court for disobeying an order of the National Court made in human rights proceedings that required him as chief executive officer of a shipping company to ensure that the plaintiff employees of the company were "paid their wages and salaries on time, without fail, and that if for some reason this cannot happen an affidavit explaining the reasons shall be filed in the National Court immediately". The Court found that he disobeyed the order on 20 occasions over a seven month period in that the employees were not paid on time and he failed to file an affidavit explaining the reasons. A hearing was held to determine the punishment.

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) The seriousness of the matter warranted committal to prison for a period of six months. It was not appropriate to also impose a fine.

(3) This was not an appropriate case in which to suspend the punishment. Accordingly the contemnor was committed to custody forthwith.

Cases cited

The following cases are cited in the judgment:

Elias Padura v Stephanie Valikvi (2012) N4894
Ian Augerea v David Tigavu (2010) N4188
John Rumet Kaputin v The State [1979] PNGLR 559
Kaidai v Nombri (2014) N5718
Newsat Ltd v Telikom PNG Ltd (2008) N3673
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

Y Wadau, for the plaintiffs
A Daugl, for the contemnor

26th September, 2014

1. CANNINGS J: The contemnor Agua Nombri has been convicted after trial of contempt of court and this is the decision on punishment. He was found guilty of disobeying an order of the National Court dated 18 October 2013. The order was made in human rights proceedings that Lutheran Shipping employees commenced against him, when he was Chief Executive Officer of Lutheran Shipping (the trading name of Kambang Holdings Ltd). The employees were claiming that he breached their human rights by ordering that they not be paid their salaries and wages. The order stated:

The defendant [the contemnor] shall ensure that the plaintiffs are paid their wages and salaries on time, without fail, and that if for some reason this cannot happen an affidavit explaining the reasons shall be filed in the National Court immediately ....

2. At the trial of the charge of contempt, the Court made the following findings of fact:

• there were 30 scheduled paydays in the period after the date of the order, 18 October 2013, to May 2014;
  
• wages and salaries were paid late (the delays varying from one day to three weeks) on 23 occasions;
  
• on only three of the 23 occasions was an affidavit filed by or on behalf of the contemnor explaining the reasons for wages and salaries not being paid on time; and therefore
  
• the contemnor on 20 occasions failed to comply with the order of 18 October 2013.
  

3. The Court was satisfied that the contemnor recklessly or carelessly disregarded the requirement to file an explanatory affidavit on each occasion that wages and salaries were paid late. That was held to be tantamount to a deliberate failure to comply with the order. He was found guilty of deliberate disobedience of a court order. Further details of the circumstances in which the offence was committed are in the judgment on verdict, Kaidai v Nombri (2014) N5718.

ANTECEDENTS

4. The contemnor has no prior convictions that are known to the Court.

ALLOCUTUS

5. The contemnor was given the opportunity to address the Court on the question of punishment. He began by providing his personal particulars and background. He is 60 years old, comes from the Kerowagi District of Simbu Province and is married with eight children. He has tertiary qualifications in mechanical and electrical engineering and business studies, obtained from Australian universities. He has worked extensively over many years in both Australia and Papua New Guinea. He is an active member of the Lutheran Church.

6. He was first employed by Lutheran Shipping in 1997 and has remained with the company since then. He came to Madang in 2003 upon securing the senior position of Operations Manager. He was appointed CEO in 2010.

7. Lutheran Shipping has been a very difficult company to manage. It has endured frequent changes at the board level, carried a large salary and wages bill particularly in respect of expatriate salaries, accumulated unpaid tax of K23 million, incurred large loans from financial institutions (eg K6.5 million to Credit Corporation), struggled to maintain an ageing fleet of ships, faced difficulty generating sufficient revenue to maintain the company's operations and lacked equity contributions from shareholders. When, because of the frequent changes in membership of the board, there were delays in securing support from the Prime Minister for a cash injection of K5 million by the National Government, the company faced a cash crisis and had difficulty paying its employees. This led to a stop-work protest. Attempts at mediation were made but at the height of that crisis, in October 2013, the situation was very tense. On 10 October 2013 the iron gates to Lutheran Shipping, Madang, were welded closed by the employees, and they also changed the locks to his office. He was verbally abused and threatened; and this made it even more difficult to pay the employees on time.

8. He is now unemployed but continues to involve himself in community activities, particularly those in which his management expertise and experience can be used, such as Family Health International which does a lot of good work working with people affected by HIV and AIDS.

9. He has always had the utmost respect for the Courts and the justice system. He apologised to the Court and to the plaintiffs and their families for not complying strictly with the Court order of 18 October 2013. He did his best to comply. He did ensure, until the company went into liquidation in May 2014, that all employees were paid. They were not always paid on time, but they were eventually paid, sometimes even though they had not been working. He asked for the mercy of the court and a lenient punishment.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Daugl highlighted that the contemnor has no prior convictions. He has cooperated with the Court during the conduct of his case. He has apologised to the Court and expressed genuine remorse. He was under enormous stress at the time of commission of the offence given the precarious financial position of the company and the aggressive attitude of the employees. He partly complied with the order. He has eight children to care for, the youngest of whom is ten years old. He is highly regarded in the local community and in the Church. A fine between K500.00 and K1,000.00 is the appropriate punishment, Mr Daugl submitted.

SUBMISSIONS BY PROSECUTING COUNSEL

11. Mr Wadau stressed that disobedience of any court order is a very serious matter particularly when the offence is committed by a leader such as Mr Nombri. The order he disobeyed was made in a human rights case and his disobedience caused a lot of pain, suffering and mental anxiety to the plaintiffs and their family members. He offended on 20 occasions. The appropriate punishment is therefore a custodial term and it should be a term of at least three years, none of which should be suspended.

DECISION MAKING PROCESS

12. 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?

13. 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.

14. 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 (2010) N4188). I follow that approach here.

15. 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.

STEP 2: WHAT IS A PROPER STARTING POINT?

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

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

17. 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?

18. I will highlight the mitigating and aggravating factors as they ultimately govern the form and extent of the punishment.

Mitigating factors

1. No prior convictions.
   
2. The contemnor is highly regarded in the community and has held senior positions in the private sector over many years.
   
3. He did not entirely fail to comply with the order in that the employees were always paid eventually and on some occasions they were paid early; and there were three occasions on which he did file an explanatory affidavit as required by the Court.
   
4. He was in an invidious position and under great stress due to the precarious financial position of the company.
   
5. He has cooperated fully with the Court during the conduct of his case.
   
6. He has apologised to the Court and expressed genuine remorse.
   

Aggravating factors

1. His disobedience of the court order had an immediate and serious deleterious effect on other persons: the employees of Lutheran Shipping and their families.
   
2. The breach of the court order continued over a period of seven months.
   
3. He disobeyed the court order on 20 separate occasions.
   

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

19. Should the Court commit the contemnor to prison? Or impose a fine? 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). 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). I reject Mr Daugl's submission that a fine would be a sufficient punishment, especially a fine of K500.00 to K1,000.00, which is the amount proposed by Mr Daugl. That would be a slap on the wrist, a punishment that does not fit the crime that has been committed. I agree with Mr Wadau that the most appropriate form of punishment in this case is committal to custody. It is not appropriate that there be a fine in addition to committal to custody.

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

20. The number and the strength of the mitigating factors slightly outweigh the aggravating factors. Therefore the term should be below the starting point. I fix the term of imprisonment as six months. A term of three years, which is the term contended for Mr Wadau, is not necessary.

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

21. 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.

22. I have decided not to suspend the punishment as that would create the impression (as would be the case if a fine were imposed) that the Court is showing excessive leniency for what is a very serious matter. The contemnor is a 'big man' but the law is that 'one size fits all'. He has been found guilty of a serious offence and he must serve his time in custody.

COSTS

23. I think it would cause undue hardship to the contemnor if he were, in addition to serving time in custody, be required to pay the plaintiffs' legal costs. I will order that the parties bear their own costs.

ORDER

(1) The contemnor, Agua Nombri, having been convicted of contempt of court, is punished as follows:

Form of punishment imposed	6 months committal to prison
Pre-punishment period in custody	Nil
Resultant length of punishment to be served	6 months committal to prison
Amount of punishment suspended	Nil
Time to be served in custody	6 months
Place of custody	Beon Correctional Institution

(2) The parties will bear their own costs.

Punishment accordingly.
__________________________________________________________
Young Wadau Lawyers: Lawyers for the plaintiffs
Napu & Company Lawyers: Lawyers for the contemnor