Gawi v Wukawa [2016] PGSC 25; SC1478 (2 February 2016)

SC1478

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 101 OF 2015

BETWEEN
CHRISTINE GAWI,
CEO - MODILON GENERAL HOSPITAL
Appellant

AND
ELIZABETH MANDUS WUKAWA
First Respondent

AND
INDEPENDENT STATE OF PAPUANEW GUINEA
Second Respondent

Waigani: Hartshorn, Makail & Polume-Kiele JJ

2015: 16^th December &

2016: 2^nd February

SUPREME COURT APPEAL – Contempt of Court – Appeal against sentence – Punishment for contempt – Disobedience contempt – Sentence of six weeks imprisonment – Excessiveness of sentence – No prescribed maximum penalty – Exercise of sentencing discretion – Principles of sentence - Mitigating factors – Aggravating factors – National Court Rules – Order 14, rule 49

Cases cited:
Papua New Guinea cases

Agua Nombri v. Robert Kaidai: SCAPP No 20 of 2014 (Unnumbered & Unreported Judgment of 15^th October 2014)
Bank of South Pacific Ltd v. Anton Sekum (2011) N4588
Concord Pacific Limited v. Thomas Nen [2000] PNGLR 47; (2000) N1981
Dianne Liriope v. Dr Jethro Usurup (2009) N3931
Elias Padura v. Stephanie Valikvi (2012) N4894
Ian Augerea v. David Tigavu (2010) N4188
Ian Augerea v. Todagia Kelola (2014) N5585
Madang Development Corporation Ltd v. Rabtrad Madang Ltd (2013) N5259
Mathew Damaru v. Geoffrey Vaki: OS No 484 of 2014 (Unnumbered & Unreported Judgment of 03^rd July 2015)
Milupol Development Corporation Ltd v. Paul Garai (2012) N4635
Newsat Ltd v. Telikom PNG Ltd (2008) N3673
Ome Ome Forests Limited v. Ray Cheong (2002) N2281
Peter Luga v. Richard Sikani & The State (2002) N2286
Public Prosecutor v. Nahau Rooney [1979] PNGLR 448
Robert Kaidai v. Agua Nombri (2014) N5718
Stephen Rose v. Neville Devete, Acting Solicitor-General (2007) N3327
Tom Kulunga v. Geoffrey Vaki & Ors: SCM No 17 of 2014 (Unnumbered &Unreported Judgment of 31^st October 2014)
William Norris v. The State [1979] PNGLR 605
21 ILGs Gobe Project Area Inc Groups v. MRDC (2006) N3066

Overseas cases

Ainsworth v. Hanrahan (1991) 25 NSWLR 155
Australasian Meat Industry Employees’ Union & Others v. Mudginberri Station Proprietary Limited – (HCA) [1986] 161 CLR 98
Director of Public Prosecutions for Commonwealth v. United Telecasters Sydney Limited (in liquidation) [1992] NSWCA 57
Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17; [2011] 276 ALR 596
Witham v. Holloway (HCA) [1995] 183 CLR 525

Counsel:

Mr. J. Brooks, for Appellant
Mr. Y. Wadau, for First Respondent
No appearance, for Second Respondent

JUDGMENT

2^nd February, 2016

1. BY THE COURT: This is an appeal against a sentence of six weeks imprisonment imposed by the National Court on 17^th August 2015 following conviction of the appellant for contempt of Court. The appellant Ms. Christine Gawi contends the sentence is excessive and seeks a reduction to a fine of K5, 000.00. The first respondent Ms. Elizabeth Wukawa also cross-appeals the sentence and seeks an increase from six weeks to one year’s imprisonment.

Background Facts

2. Ms. Gawi is the Chief Executive Officer (“CEO”) of the Modilon General Hospital in Madang. Ms. Wukawa was a nurse at the same hospital. She was terminated by the management of the hospital and sought a review by the Public Services Commission. The Commission reviewed the matter and annulled her termination.

3. The management sought judicial review of the Commission’s decision in the National Court. On 22^nd January 2014 the National Court handed down its decision and dismissed the application for judicial review. The National Court ordered Ms. Wukawa’ reinstatement by 5^th February 2014 and that she be paid all of her outstanding entitlements by 5^th March 2014.

4. On 30^th January 2014 Ms. Gawi filed an appeal against the dismissal of the application for leave for judicial review. A stay of the orders of the National Court was not granted until 5^th March 2014 and the appeal was subsequently dismissed on 30^th October 2014. In the meantime, on 7^th February 2014 Ms. Wukawa commenced contempt proceedings to have Ms. Gawi punished for contempt on the ground that Ms. Gawi had failed to comply with the orders of the National Court. Ms. Gawi denied the charge. After a hearing, Ms. Gawi was convicted for not complying with these orders. She is currently on bail having already spent four days in prison.

National Court Decision - Sentence

5. In imposing the sentence upon Ms. Gawi that he did, the trial judge took into account the sentencing trend based on the past decided cases of Newsat Ltd v. Telikom PNG Ltd (2008) N3673, Dianne Liriope v. Dr Jethro Usurup (2009) N3931 and Ian Augerea v. David Tigavu (2010) N4188 of up to two years imprisonment or a fine of K5, 000.00 or both. This is the notional maximum. However, there may be cases in which the nature and extent of the contempt may warrant sterner punishment, such as the case of Mathew Damaru v. Geoffrey Vaki: OS No 484 of 2014 (Unnumbered & Unreported Judgment of 03^rd July 2015) where the Court sentenced Mr. Geoffrey Vaki the then Commissioner of Police to a term of three years imprisonment. So his Honour settled between a term of one year imprisonment and a fine of K2, 500.00 or both.

6. Secondly, the trial judge identified this case as a disobedience type of contempt – contempt of a Court order. He went on to note that in such a case, it has been customary to impose a term of imprisonment. Short, sharp sentences between 10 weeks and 18 months imprisonment have been imposed in past cases such as Peter Luga v. Richard Sikani & The State (2002) N2286, Elias Padura v. Stephanie Valikvi (2012) N4894 and Robert Kaidai v. Agua Nombri (2014) N5718.

7. Thirdly, his Honour took into account, amongst other things, the personal details of the appellant, her allocutus and expression of remorse, and mitigating and aggravating factors.

Principles of Sentencing

8. The offence of contempt of Court is not defined by written law. In general terms, there are three classes of contempt:

8.1. Technical contempt – where the contempt is “casual, accidental or unintentional” – penalties vary from accepting an apology to costs orders or a fine.

8.2. Wilful contempt – deliberate conduct but without specific intent to defy judicial authority. A fine is generally all that is required to vindicate the authority of the Court.

8.3. Contumacious contempt – involves an obvious intention to defy and disobey the authority of the Court. Custodial sentences will frequently be imposed. It is often associated with “criminal” as opposed to “civil” contempt.

9. With regard to punishment, Order 14, rule 49 of the National Court Rules sets out the different forms of punishment for contempt. In a case where the contemnor is a person, the Court may impose a fine or imprisonment or both. However, we note unlike the written law such as the Criminal Code, it does not prescribe a maximum penalty for a fine or imprisonment. So the Court is given a wide discretion as to the sentence it may impose.

10. As to how the sentencing discretion is exercised, we note that the National Court has generally applied the sentencing principles applied in criminal cases as evident from the cases cited by both counsel and referred to by the trial judge. Some of these principles are the mitigating and aggravating factors and reservation of the maximum penalty for the worst case. There is no issue on the application of the principles in this case.

Issues for Consideration

11. From the submissions of both counsels we consider that the dispute is concerned with the excessiveness or otherwise of the sentence. It raises two main issues. They are:

11.1. whether the trial judge erred in refusing the appellant’s claim of reliance on faulty legal advice to disobey the Court order as a mitigating factor and if yes, if the trial judge had not erred, would it have reduced the sentence; and

11.2. whether the trial judge erred in accepting the first respondent’s claim of the appellant being a highly educated, high calibre and intelligent person holding a senior position as a CEO of the hospital as an aggravating factor and if yes, if the trial judge had not erred, would it have reduced the sentence. Conversely, whether it should have resulted in a sentence higher than the one imposed.

Reliance on faulty legal advice

12. On behalf of Ms. Gawi, Mr. Brooks of counsel repeats the submission made before the trial judge that Ms. Gawi had no intention of defying the Court order as she clearly had acted on legal advice in not reinstating Ms. Wukawa and in the circumstances it was reasonable for her to accept that legal advice.

13. Mr. Brooks emphasises that the trial judge rejected this claim as it was made too late and although it appeared to be a genuine claim made in an affidavit, it was untested. The trial judge held that it could have been a strong mitigating factor if Ms. Gawi had pleaded guilty. As she had pleaded not guilty, in effect she had lost the opportunity to rely on it as a mitigating factor.

14. Counsel further submits that the trial judge erred in holding that Ms. Gawi had lost the opportunity to rely on this claim as she pleaded not guilty. The error is this, if it was not a defence to the contempt charge, then it is factor relevant to sentence and the trial judge should have taken it into account in his assessment of an appropriate sentence. Counsel emphasised that it was relevant and it was wrong for the trial judge to reject it.

15. Mr. Wadau of counsel for Ms. Wukawa submits this appeal should be dismissed because Ms. Gawi is bound by the legal advice she received from her former lawyer by virtue of Section 7(1)(d) of the Criminal Code which states, “any person who counsels or procures any other person to commit the offence is guilty of any offence” and cannot be exonerated from culpability.

16. There are three problems with Mr. Wadau’s submission. First, the application of the principal offender principle under Section 7 applies at the trial of the contempt charges and is invoked by the prosecution to hold the alleged contemnor equally culpable for actions or omissions of a co-accused (co-contemnor). In so far as sentence is concerned, it is relevant when the Court is considering the nature and extent of the offender’s (contemnor’s) participation in the commission of the offence.

17. Secondly, this submission must be dismissed as being misconceived because the former lawyer who gave the legal advice is not on trial here. It is Ms. Gawi. So Section 7 does not apply. Finally, it was not made before the trial judge and so his Honour did not have the opportunity to address it in his decision. So we give no consideration to it.

18. Civil contempt is an offence that is one of “strict liability”. At [32] of his decision on conviction, the trial judge expressed a view that it is not a defence if Ms. Gawi had argued that she believed she did not have to comply with the Court order because she had filed an appeal and an application for a stay order, or if she had argued she was acting on legal advice that she did not have to reinstate Ms. Wukawa.

19. In 21 ILGs Gobe Project Area Inc Groups v. MRDC (2006) N3066 Lay J expressed the view in this way:

“it is not a defence that the disobeying party honestly believed that the contemplated act did not constitute an act of disobedience, even if such a belief was bona-fide based on legal advice or was reasonable on other grounds.”

20. This is the common law position in this jurisdiction and also in Australia as applied in the cases of Stephen Rose v. Neville Devete, Acting Solicitor-General (2007) N3327; Ian Augerea v. Todagia Kelola (2014) N5582; Director of Public Prosecutions for Commonwealth v. United Telecasters Sydney Limited (in liquidation) [1992] NSWCA 57; Australasian Meat Industry Employees’ Union & Others v. Mudginberri Station Proprietary Limited – (HCA) [1986] 161 CLR 98; Ainsworth v. Hanrahan (1991) 25 NSWLR 155 and Witham v. Holloway (HCA) [1995] 183 CLR 525.

21. It follows that we agree with Mr. Brook’s submission that if the claim that Ms. Gawi had acted on legal advice in not reinstating Ms. Wukawa was not a defence to the contempt charge, then it must be a factor relevant to sentence. Further, we agree that it was a factor favouring Ms. Gawi and supported her plea for a lenient sentence. We agree that it goes to establish the state of mind of Ms. Gawi at the material time and, in this instance, which she did not intend to disobey the Court order.

22. Emphasising the point, the uncontested evidence is that Ms. Gawi, when faced with the fact that her lawyer had not obtained a stay order prior to the time for compliance, sought legal advice from her lawyer as to what to do. She did not blithely ignore the Court order requiring reinstatement. She sought legal advice and was advised that because an appeal and an application for stay had been filed prior to the time for compliance she was not required to reinstate Ms. Wukawa. As to whether this legal advice was correct and if is not and the consequences of non compliance with a Court order would not have been in the knowledge of a lay person with no legal training.

23. Ms. Gawi sought legal advice and was given advice by her lawyer. She accepted that advice. This goes to Ms. Gawi’s state of mind and her lack of intention and culpability. Her case can be contrasted with the cases of Ome Ome Forests Limited v. Ray Cheong (2002) N2281 per Kandakasi J and Concord Pacific Limited v. Thomas Nen [2000] PNGLR 47; (2000) N1981 per Sheehan J where the contemnors failed to obtain legal advice and that failure was taken onto account by the Courts in determining the matters.

24. With respect, we disagree with the trial judge’s reasons for rejecting this claim. It was not too late for Ms. Gawi to rely on it. Ms. Gawi made this claim in an affidavit. The affidavit was served well before the hearing on sentence and was admitted into evidence for hearing on sentence. As she had made the claim in an affidavit, even at the hearing on sentence it was open to Ms. Wukawa to give notice to cross-examine her to test the veracity of the matters deposed to in the affidavit but she did not. So Ms. Gawi’s evidence in the affidavit was uncontested and it was open to the trial judge to accept it.

25. For these reasons, we are not satisfied Ms. Gawi had lost the opportunity to rely on this claim. We are satisfied the trial judge erred when he rejected it. We will address the issue whether it would have resulted in a reduction of the sentence shortly.

Highly educated, high calibre, intelligent and holder of senior position

26. The trial judge held that one of the aggravating factors is that Ms. Gawi held a leadership position. She was the person in charge of a very important public institution. As a leader, she had a duty to lead by example and to obey Court orders. She failed to discharge that duty.

27. Mr. Brooks concedes Ms. Gawi held a leadership position. As CEO of the hospital she had a duty to lead by example and to obey Court orders. But he submits the trial judge was wrong to equate her at the same level as the Commissioner of Police and other senior departmental heads and heads of other public institutions and hold that it was an aggravating factor.

28. Counsel submits Ms. Gawi is not a lawyer nor is she a police officer like Mr. Vaki who is expected to know the law. Ms. Gawi is a CEO of a public hospital and had acted on legal advice and this is the difference between her and Mr. Vaki.

29. In response and in support of the cross-appeal Mr. Wadau submits the sentence is too lenient and has created a serious disparity in sentences imposed by the National Court in past cases. He submits in past cases sentences ranged from ten weeks to three years imprisonment. Some of these cases are Tom Kulunga Commissioner of Police (2014) 7 months, Agua Nombri CEO (2014) 6 months, Hon. Anton Yagama MP (2014) 18 months, Peter Yama Managing Director (2014) 6 months, David Tigava Chairman (2010) 12 months, Dr. J. Urusup CEO Modilion General Hospital 6 months and Nahau Rooney Minister (1979) 8 months.

30. The three years sentence was imposed in the recent case of Geoffrey Vaki and is a further confirmation of the increase in the sentencing tariffs in contempt cases. The trial judge erred when he imposed a sentence well below the sentencing range imposed in those cases. A fair and reasonable sentence should have been a term of one year imprisonment.

31. As to the ground on Ms. Gawi holding a senior position, counsel submits the evidence before the trial judge established that Ms. Gawi is a highly educated person, she holds a Bachelor of Nursing from Queensland University and a Master of Nursing from Monash University. She held a very senior position at the hospital as its CEO at the time she committed the offence. She is no exception to the class of people of high calibre, intelligent, highly educated at university level and holding a senior position in respect of whom, imprisonment sentences have been imposed.

32. Counsel cites the following statement by the Chief Justice in Agua Nombri v. Robert Kaidai: SCAPP No 20 of 2014 (Unnumbered & Unreported Judgment of 15^th October 2014) to support his submission that the law does not make any distinction or exception when it comes to disobedience of Court orders and that the sentence does not reflect the sentencing trend where senior public officials have been punished for contempt. The statement is:

“That the criminal law of contempt given to by the Constitution by Section 37(2) to punish disobedience of Court orders are to be enforced without exception, and those who have been found to commit the offence of contempt and punished by an order of imprisonment are made to realize that their right to live and move around freely have been forfeited by their very own conduct of disobedience and that the court has reproached in the strongest terms by imprisoning the contemnor. Contempt is a serious matter........”

33. As to Mr. Wadau’s reliance on the above statement, we take note that Mr. Brooks did not have the opportunity to address us on it as he was not given a copy of the decision prior to the hearing (It is an unreported judgment and was not included in the respondent’s list of authorities – a copy of the judgment was handed up in Court for our consideration). Notwithstanding this, we consider that the statement has been taken out of context or misapplied and is irrelevant. It was made in the context of a bail application where bail was refused following conviction for contempt of Court. The applicant appealed to the Supreme Court and pending the appeal, applied for bail.

34. In this case we are dealing with an appeal against sentence following conviction for contempt of Court. So that case does not assist Ms. Wukawa’s case. On the other hand, each case is peculiar and must be considered based on its own facts. As was noted by the Supreme Court in Public Prosecutor v. Nahau Rooney [1979] PNGLR 448:

“No two cases of contempt are wholly alike, and, in any event, apparent similarities are often superficial.......”

35. And punishment must be:

“fairly proportionate to the gravity of the offence assessed against its proper background.”

36. As each case must be considered on its own merits, we accept Mr. Brook’s submission that the appropriate course in determining punishment is to consider the entire circumstances of the matter and to administer a punishment that is fair in the circumstances of a particular matter taking into account the level of culpability and the intention of the convicted contemnor. These are the principles on punishment enunciated in many case authorities and secondary materials.

37. To do otherwise, to send people to prison for disobedience contempt irrespective of the circumstances of the matter is not properly administering justice and is not reflective of community expectations. As was said by the full Federal Court of Australia in Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17; [2011] 276 ALR 596:

“The starting point for the process of reasoning in sentencing is the gravity of the offence...In the case of contempt of Court involving contravention of, or failure to comply with, Court orders, that means assessing the seriousness of the defiance of the Courts authority.”

38. Then later the Court said:

“Restraint is appropriate in imposing sentences of imprisonment for contempt of court involving contravention of, or failure to comply with, orders of the Court. The authority of a court can be brought into disrepute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity.”

39. And finally:

“The vindication of judicial authority must necessarily reflect the nature of the challenge to that authority inflected by the conduct of contempt in questions. “Imprisonment, as a disciplinary sanction for contempt, ought to be confined to the most serious of contempts.” “As Keane CJ, Dowsett and Reeves JJ recently observed in Jones v. Australian Competition and Consumer Commission [2010] FCAFC 136 at [36], there would be a serious question of the propriety of a sentence of imprisonment if the charges raised only a case of civil contempt; that is, a case where contumacious conduct was not contended for.”
40. These statements from Vaysman v. Deckers Outdoor Corporation (supra) have been cited with approval in Bank of South Pacific Ltd v. Anton Sekum (2011) N4588; Milupol Development Corporation Ltd v. Paul Garai (2012) N4635 and Madang Development Corporation Ltd v. Rabtrad Madang Ltd (2013) N5259. Vaysman is also referred to and approved as a guiding principle by his Honour the Chief Justice in Injia on Contempt of Court in Papua New Guinea and Pacific, Salamo Injia UPNG Press and Bookshop 2013.

41. It is common ground that Ms. Gawi is a holder of a Bachelors Degree and Masters Degree in Nursing from two prestigious Universities in Australia. It is then reasonable to say that she is a highly educated and intelligent person. There is also undisputed evidence that she is well experienced. Her experience is well documented. She began as a nursing officer at Angoram Health Centre in 1980 and worked her way up to the current position. During her career she has held, amongst other things, the positions of paediatric nurse in 1984 to 1991 and Director of Nursing in 1999. In addition, she was responsible for establishing a Hospital Standards and Quality Improvements Program. In 2008 she was appointed acting CEO of the hospital.

42. However, being highly educated, intelligent, experienced and the holder of a very senior position in a public institution does not, in our view, necessarily place her in the group of elites and high calibre people as described by Mr. Wadau. We accept Mr. Brook’s submission that Ms. Gawi is not a lawyer nor is she a police officer and it is a reasonable submission that she would only know the basics of law, interpret it and comply with Court orders. We qualify this by saying that in this case she had lawyers acting for her who had advised her that the obligation to comply with the Court order was subject to the appeal and application for a stay order. Accordingly, she did not act on the Court order and reinstate Ms. Wukawa.

43. In Mathew Damaru v. Geoffrey Vaki (supra), Mr. Vaki, who was the Commissioner of Police at the material time was sentenced to three years imprisonment for contempt of Court. We distinguish that case from the present case. While Mr. Vaki and Ms. Gawi are heads of their respective organisations and are expected to obey Court orders, the difference is that Mr. Vaki is the head of a disciplined force responsible for maintaining law and order in the country and it is reasonable to expect him to know the law. Ms. Gawi is not in charge of a similar organization and in this respect, we are not satisfied that it is correct to put her at the same level as the Commissioner of Police. And so, while there is a duty on all persons to obey Court orders, the extent of culpability must be considered in that context.

44. The other reason is that, the cases which Mr. Wadau refers to at [29] above do not support his submission because in those cases the contemnors did not act on faulty legal advice when they breached the Court orders. This is the difference between those cases and this case.

45. Finally, although there is no issue that the Court order is clear and unequivocal and it is reasonable to say that Ms. Gawi would have understood its terms and should have reinstated Ms. Wukawa. At the same time, she was also following legal advice, which included advice to file an appeal against the Court order. The undisputed evidence is that acting on the lawyer’s advice, Ms. Gawi filed an appeal against the National Court decision and order and pending determination of the appeal, applied for an order to stay the National Court decision and order.

46. The appeal was instituted on 30^th January 2014 which was five days prior to the date fixed by the Court of 5^th February 2014 to reinstate Ms. Wukawa. Although the application for stay was served on Ms. Wukawa’s lawyers on the same date the appeal was filed, the order for stay was not granted until 5^th March 2014. The stay of the Court order was however, late by approximately one month. In our view this was the period of delay and time Ms. Gawi was in breach of the Court order. We reach this conclusion because when the appeal was dismissed on 30^th October in the same year, the undisputed evidence is that Ms. Gawi immediately took steps to reinstate Ms. Wukawa and pay her outstanding entitlements.

47. For these reasons, we are satisfied that the trial judge erred when he held that the contempt was aggravated by that fact that Ms. Gawi was a holder of a senior position in a public institution, is intelligent and experienced and should have complied with the Court order.

Reduction or increase in Punishment

48. The trial judge’s rejection of Ms. Gawi’s claim of reliance on faulty legal advice and holding that the contempt was aggravated by her holding a senior position in a public institution, that she is intelligent and an experienced person quite clearly influenced him in his imposition of a term of imprisonment.

49. As we have found Ms. Gawi had relied on faulty legal advice. Although it was not a defence, it is a factor which militates against the seriousness of the contempt. Equally, by being a holder of a senior position in a public institution, and being intelligent and experienced does not necessarily mean that a sterner punishment is necessary to vindicate the wrong.

50. In our view there must be an intention or a deliberate act to disobey a Court order by the disobeying party for the contempt to be described as contumacious. The trial judge did not hold and Mr. Wadau did not submit that Ms. Gawi’s disobedience of the Court order was contumacious. We are of the view that Ms. Gawi’s contempt falls within the second class of contempt referred to at [8.2] above. It is a wilful contempt usually punishable by a fine.

51. As we noted at [5] above the trial judge formed a view that the sentencing trend is that the Courts have been imposing custodial sentences in contempt cases. This may be so but as we have pointed out, each case must be considered on its own facts. The distinction between civil and criminal contempt is somewhat blurred, but because of their special relationship with the Court’s, it has often be found that contempt by lawyers is viewed more seriously and is consequently more appropriately punished by custodial sentences. See Australasian Meat Industry Employees’ Union & Others v. Mudginberri Station Proprietary Limited (supra) and Madang Development Corporation Ltd v. Rabtrad Madang Ltd (supra).

52. The recurring theme in this case is that Ms. Gawi is not a lawyer and she acted on faulty legal advice. It is these factors that distinguish her case from the above two cases. Ms. Gawi has no legal knowledge and simply accepted advice from her lawyer and as a result was in contempt of Court. Her level of culpability cannot be that of a lawyer who knowingly commits contempt.

53. However, recently the Supreme Court in Tom Kulunga v. Geoffrey Vaki & Ors: SCM No 17 of 2014 (Unnumbered &Unreported Judgment of 31^st October 2014) considered a deliberate contempt against the processes of the Court by three lawyers of the National and Supreme Courts. The nature of contempt was an attempt to interfere with the administration of justice in proceedings before the Chief Justice of Papua New Guinea.

54. We consider that whilst this was not a matter of disobedience contempt, it involved collusion by three lawyers to subvert due process in proceedings presided by the Chief Justice and the conduct of the lawyers was also a breach of Court Rules and professional conduct requirements. With respect, the contempt of the three lawyers is of far more concern to the integrity of the Court and the due administration of justice than the contempt by Ms. Gawi.

55. Nonetheless, the Supreme Court did not impose a custodial sentence, but rather fined the three lawyers and ordered in lieu of payment that terms of imprisonment would be imposed. In this case it has not been submitted that the lawyers in that case ought to have been given custodial sentences as punishment, but it has been submitted that imposing a custodial sentence on Ms. Gawi when the lawyers involved were only fined, is something that may tend to discredit the Judiciary when viewed by the wider community in line with the principles discussed above and outlined in Vaysman v. Deckers Outdoor Corporation Inc (supra).

56. In an appeal against sentence, the appellate Court will not disturb the sentencing discretion of the trial judge unless it is established that the trial judge fell into error and the error must have the effect of vitiating the sentence. Paraphrasing what Kearney J stated in William Norris v. The State [1979] PNGLR 605 at 612-613, the error may be identifiable: for example, amongst other things, the trial judge may have taken into account matters which he should not have taken into account or failed to take into account matters which he should have taken into account.

57. In the present case, we are satisfied the trial judge made two identifiable errors as outlined above. First, his rejection of Ms. Gawi’s plea in mitigation of acting on faulty legal advice by her former lawyer and secondly, the finding that the contempt was serious and a custodial sentence was warranted because Ms. Gawi held a leadership position and had a duty to obey the Court order. In addition, we find that the trial judge placed too much reliance on Ms. Gawi being intelligent and highly experienced and therefore should have understood the terms of the Court order and complied.

58. In the Court below Ms. Gawi had submitted that she be ordered to pay a fine of K5, 000.00 by way of punishment. She seeks the same relief in this appeal. This was a contested matter as Ms. Gawi denied the charge and a trial was conducted to determine her guilt. It was a factor operating against Ms. Gawi’s plea for a lenient punishment. Other than this, in our view, the evidence established that this was a case of wilful contempt usually punishable by a fine. One significant mitigating factor as we have pointed out at [46] above is that the period of breach was about one month and after the appeal was dismissed, Ms. Gawi immediately took steps to reinstate the first respondent. This supports Ms. Gawi’s plea for a lenient sentence.

Conclusion

59. We are satisfied the sentence is excessive and should not be increased. In the exercise of our discretion under Section 16 of the Supreme Court Act, we issue the following orders:

1. The appeal is upheld.
   
2. The cross-appeal is dismissed.
   
3. The sentence of six weeks imprisonment is quashed.
   
4. The appellant shall pay a fine of K5, 000.00.
   
5. The first respondent shall pay the costs of and incidental to the appeal, which shall be taxed, if not agreed.
   

____________________________________------------------_________________________

Ashurst Lawyers: Lawyers for the Appellant
Young Wadau Lawyers: Lawyers for the First Respondent