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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 153 OF 2014
IAN AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Plaintiff
V
CHARLES MOI
First Defendant
PACIFIC STAR LIMITED TRADING AS THE NATIONAL
Second Defendant
Waigani: Cannings J
2014: 15 April, 10 June
CONTEMPT OF COURT – punishment – disobedience contempt – failure by print journalist and newspaper proprietor to comply with court order that required images of persons published to be frosted; unfrosted image published – different considerations depending on whether contemnor is an individual or a corporation.
Two defendants pleaded guilty to contempt of court for disobeying an order of the National Court. The order restricted the publication of photographs taken of transferees or staff during a site visit by a court party and media personnel (including the first defendant) to a regional processing centre by requiring that "all images published must be frosted or otherwise published in a way that preserves the identity of transferees and staff of the centre". The first defendant participated in the site visit and took photographs. Three days later the first defendant's employer, the second defendant, the publisher of a daily newspaper with nationwide distribution, published in its newspaper a news story and photograph, carrying the first defendant's byline, regarding the site visit. The photograph contained an un-frosted image of a member of the security staff at the processing centre. This is the judgment on punishment.
Held:
(1) As different considerations apply depending on whether a contemnor (a person found guilty of contempt) is an individual or a corporation, it is useful to consider each contemnor separately, but apply to each of them a common decision making model, ie:
- 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?
(2) As to the first defendant: there being no maximum penalty for contempt of court, it is useful to set a notional maximum of committal to prison for two years or a fine of K5,000.00 or both; a good starting point is the middle of the range: committal to prison for 12 months or a fine of K2,500.00 or both; in other cases of the disobedience form of contempt, short, sharp prison sentences in the range of ten weeks to 18 months have been the norm; mitigating factors included that the contemnor pleaded guilty, he has no prior convictions, he largely complied with the order as the newspaper also published a photograph of transferees that contained frosted facial images, he made a genuine but partially unsuccessful attempt to comply with the order in contrast to other cases that have involved flagrant disobedience of a court order, whereas aggravating factors are that it was a very significant order that was made by the court and it was absolutely clear and unambiguous in its terms; given the genuineness of the contemnor's efforts to comply with the order and the fact that the contemnor was not directly responsible for its breach, a fine, not committal to custody, was the appropriate form of punishment; the contemnor was punished below the starting point: a fine of K1,000.00 was imposed; the seriousness of the offence did not warrant any suspension.
(3) As to the second defendant: there being no statute regulating the print media that provides a relevant benchmark for a penalty regime, an appropriate notional maximum penalty can be derived from the Companies Act: a fine of K100,000.00 or sequestration of assets to that value; a good starting point is the middle of the range: a fine or sequestration of assets to the value of K50,000.00 or both; in other cases of the disobedience form of contempt by a corporation, the punishment has ranged from an order for costs to a fine of K5 million; mitigating factors included that the contemnor has no prior convictions, it is an established and vital component of the media industry, there was no conscious decision or intention on its part or on the part of any of its directors, shareholders or employees to disobey the court's order, there was substantial compliance with the order, whereas aggravating factors are that it was a very significant order that was made by the court and it was absolutely clear and unambiguous in its terms and the defendant failed to have sufficient internal controls in place to deal with this sort of court order; given the genuineness of it employees' efforts to comply with the order and the fact that the contemnor was not directly responsible for the breach of the order, a fine, not sequestration of assets, was the appropriate form of punishment; as the mitigating factors outweighed the aggravating factors the contemnor was punished below the starting point: a fine of K20,000.00 was imposed; the seriousness of the offence did not warrant any suspension.
(4) In summary: the first defendant was fined K1,000.00, the second defendant was fined K20,000.00; both fines to be paid within 14 days.
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
Newsat Ltd v Telikom PNG Ltd (2008) N3673
Peter Luga v Richard Sikani and The State (2002) N2286
Saperus Yalibakut v The State (2006) SC890
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Yap v Tan [1987] PNGLR 227
PUNISHMENT
This is a decision on punishment for an individual and a corporation who were convicted after pleading guilty to contempt of court.
Counsel
W Hagahuno, for the Plaintiff
B Frizzell, for the Defendants
10th June, 2014
1. CANNINGS J: This is the decision on punishment for two defendants who pleaded guilty to the offence of contempt of court for disobeying an order of the National Court. The first defendant Charles Moi is a journalist with The National newspaper and the second defendant Pacific Star Ltd is the publisher of that daily newspaper, which has nationwide distribution in Papua New Guinea.
2. Their conviction resulted from the publication of a photograph in the Monday 24 March 2014 edition of the National. The photograph was of a group of people taking part in a court visit to the Manus Island Regional Processing Centre. The first defendant took the photograph at the Centre three days previously, on Friday 21 March 2014, when he was a member of the Court party that conducted a site visit to the Centre as part of a National Court inquiry (HROI No 1 of 2014) regarding the circumstances of the alleged detention of the transferees. I was the Judge who on 21 March 2014 made an order at Lorengau allowing five media personnel, including the first defendant, to be members of the court party, subject to various conditions including that, though media representatives were permitted to take photographs:
all images published must be frosted or otherwise published in a way that preserves the identity of transferees and staff of the centre.
3. The photograph appeared above a front-page banner headline "Legal wrangle Judge, State lawyers differ on Manus inquiry" and story relating to the Inquiry that carried the first defendant's byline. The caption accompanying the photograph read:
From left: Public Solicitor Frazer Pitpit, lawyer Ian Molloy QC representing the State and Justice David Cannings during the visit to the Manus Regional Processing Centre last Friday. Nationalpic by CHARLES MOI
4. Also appearing in the photograph was the clear, unfrosted image of a member of the security staff of the Centre wearing a blue-black shirt with a "G4S" logo on it. G4S is the company that was at the time providing security services to the Centre. This meant that the identity of that staff member was not preserved. On 26 March 2014 the plaintiff, the Registrar of the National Court, Mr I V Augerea, acting on direction from the Court under Order 14, Rule 47(1) of the National Court Rules, charged the defendants with contempt of court on the ground that they had, by publishing or facilitating the publication of an un-frosted image of a member of staff of the Centre, breached the order of 21 March 2014, thereby presenting a real risk of interference with the due administration of justice.
ANTECEDENTS
5. Neither contemnor has any prior conviction.
ALLOCUTUS
6. The first defendant, Charles Moi, was invited to address the court. He apologised to the Court for the mistake that was made, which was unintentional. He stated in an affidavit filed on 10 April 2014 that he went to work on Sunday 23 March 2014 to prepare stories for publication in the next day's paper. He informed the news editor that he had obtained photos of the Centre and that The National had been ordered to frost the faces of transferees and staff. He gave a copy of the court order to the associate editor and told him that all photos of transferees and staff were to be frosted.
7. Editor in Chief of The National, Pama Anio, speaking on behalf of the second defendant, Pacific Star Ltd, sincerely apologised to the Court for the error that occurred. He stated in an affidavit filed on 10 April 2014 that there has been an editorial meeting on the evening of 23 March 2014 at which it was decided to use Mr Moi's story and pictures of the site visit. A decision was made to run two photos: the front-page photo plus another on page 3. The graphic artist was told that the faces of the detainees and workers must be frosted so that they could not be identified. He did as he was instructed with the photo of the detainees but he did not realise that one of the workers was in the page 1 photo. In the final proof reading the production editor also failed to notice the mistake in the page 1 photograph.
PERSONAL PARTICULARS: FIRST DEFENDANT, CHARLES MOI
8. He has a Bachelor of Arts degree from the University of Papua New Guinea. He commenced work with The National in May 2013 and was assigned to do court reporting. He strives to ensure that the articles he writes are balanced and based on facts.
OTHER MATTERS OF FACT
9. As the defendants pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). In that regard the evidence of Mr Moi and Mr Anio as to the steps that were taken by them to ensure compliance with the Court order is accepted at face value. That evidence shows that there was a genuine and sustained effort to comply with the Court order.
SUBMISSIONS BY DEFENCE COUNSEL
10. Mr Frizzell highlighted the guilty plea of each defendant and that neither defendant has any prior conviction. Both defendants have been quick to acknowledge that a mistake was made and have entered early guilty pleas. They substantially complied with the Court's order as demonstrated by the page 3 photo of a group of four to six transferees, none of whom could be identified due to the frosting of all facial images. There was clearly no intention to disobey the Court order. Both defendants were alive to their obligation to comply with it.
SUBMISSIONS BY PROSECUTING COUNSEL
11. Mr Hagahuno conceded the relevance of the mitigating factors outlined by Mr Frizzell. He agreed that it was not necessary to impose a custodial penalty on the first defendant. A moderate fine would be more appropriate. As for the second defendant, a fine would also be sufficient.
METHODOLOGY
12. As different considerations apply depending on whether the contemnor (a person found guilty of contempt) being punished is an individual or a corporate entity, it is useful to consider each defendant separately, but apply to each of them a common decision making model, ie:
THE FIRST DEFENDANT, CHARLES MOI
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. 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 (2010) N4188). I follow that approach here. 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?
15. 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?
16. 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?
17. These are significant matters as they ultimately govern the form and extent of the punishment.
Mitigating factors
Aggravating factors
STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?
18. 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).
19. However, in the special circumstances of this case, given the genuineness of the first defendant's efforts to comply with the order and the fact that he was not directly responsible for the breach of the order, a fine, not committal to custody, is the appropriate form of punishment. I reject the submission that an order for costs would be an appropriate punishment. There needs to be certitude about the penalty. A fine brings certainty and finality (if it is paid within the time set by the Court) to the proceedings and will allow the first defendant to resolve the case, reflect on what has happened and learn from this experience.
STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE?
20. What should the amount of the fine be? The number and the strength of the mitigating factors are greater than those of the aggravating factors. This provides an argument for punishing below the starting point. I fix the fine at K1,000.00.
STEP 7: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?
21. Suspending all or part of the fine 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 reject the submission that this is a case warranting suspension of the fine. The mitigating factors have adequately been taken into account in deciding to punish the first defendant with a fine rather than a prison term and in fixing a moderate fine. To suspend the payment of the fine would not reflect the seriousness of the offence. There will be no suspension.
THE SECOND DEFENDANT, PACIFIC STAR LTD
STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?
23. Order 14, Rule 49(2) (punishment) of the National Court Rules deals with contempt by a corporation:
Where the contemnor is a corporation the Court may punish contempt by sequestration or fine or both.
24. Sequestration entails the court-sanctioned seizure of a contemnor's assets. As in the case of punishment for an individual there is, in the case of a corporation, no maximum punishment, as such. It is useful, as was done in Newsat v Telikom, to look to the legislation that regulates the industry in which the contemnor is operating. However, such an approach does not neatly fit the regulatory, statutory environment in which the second defendant operates. It is more appropriate to refer to the Companies Act and the type of offences it creates and the penalties it provides. I apply in this case – as Pacific Star Ltd is a corporation of significant size – a starting point of a fine of K100,000.00 or sequestration of assets to that value.
STEP 2: WHAT IS A PROPER STARTING POINT?
25. The starting point is the middle of the range: a fine of K50,000.00 or sequestration of assets to that value.
STEP 3: WHAT PUNISHMENT HAS BEEN IMPOSED IN EQUIVALENT CASES?
26. In Newsat v Telikom the amount of the fine was K5 million.
STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?
Mitigating factors
Aggravating factors
STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?
27. Sequestration would be a rather drastic punishment, which should be reserved for cases of extreme contempt or perhaps where a corporation does not have the financial capacity to pay a fine. It is not an appropriate form of punishment in the present case and the plaintiff did not press for it. The most appropriate form of punishment is a fine.
STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE?
28. The fine must reflect the size of the corporation and its capacity to absorb a fine. The fine should not, however, be a crushing penalty. I take the same approach as taken in the case of the first defendant. There are many mitigating factors, which outweigh the aggravating factors, and particularly in light of the guilty plea have the effect of bringing the penalty below the starting point. The fine is fixed at K20,000.00.
STEP 7: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?
29. No, for the same reason given in relation to the first defendant: it would not reflect the seriousness of the matter.
CONCLUSION
30. Each of the defendants will be fined. Order 14, Rule 47(3) provides that the Court may make an order for punishment "on terms" (or conditions). There are two terms I consider are appropriate. First, each fine must be paid within a limited time, which I fix as 14 days. Secondly, the plaintiff will be able to take action, if the fine is not paid within the time fixed, to seek alternative punishment. In the case of the first defendant the alternative will be committal to prison for a period of six months. In the case of the second defendant the alternative will be sequestration of assets to the value of the fine of K20,000.00.
31. As these have essentially been criminal proceedings and the normal practice in such proceedings is that there is no order for costs, I will order that the parties bear their own costs.
ORDER
(1) The first defendant shall within 14 days after the date of this judgment pay a fine of K1,000.00 to the Registrar of the National Court, who shall forthwith pay that money into the Consolidated Revenue Fund; and in the event that the fine is not paid within that time the Registrar will be at liberty to apply by notice of motion for committal of the first defendant to custody for a period of six months.
(2) The second defendant shall within 14 days after the date of this judgment pay a fine of K20,000.00 to the Registrar of the National Court, who shall forthwith pay that money into the Consolidated Revenue Fund; and in the event that the fine is not paid within that time the Registrar will be at liberty to apply by notice of motion for sequestration of the second defendant's assets to the value of the fine.
(3) These proceedings shall be called at Waigani at a time to be notified in the week commencing 30 June 2014 to monitor compliance with this order and mention any unresolved matter relating to these proceedings.
(4) The parties will bear their own costs.
Judgment accordingly.
_______________________________________________________________
Williams Attorneys: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2014/331.html