Ian Augerea, Registrar of the National Court v Peter Charles Yama (2014) N5476

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2014
• Citation: (2014) N5476
• Docket Number: OS NO 473 OF 2013
• Court: National Court
• Year: 2014
• Judgement Number: N5476

Full Title: OS NO 473 OF 2013; Ian Augerea, Registrar of the National Court v Peter Charles Yama (2014) N5476

National Court: Cannings J

Judgment Delivered: 31 January 2014

N5476

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 473 OF 2013

IAN AUGEREA,

REGISTRAR OF THE NATIONAL COURT

Plaintiff

V

PETER CHARLES YAMA

Contemnor

Madang: Cannings J

2014: 30, 31 January

CONTEMPT – incident outside courthouse – threat of violence by party to court proceedings against police officers providing security – punishment

The contemnor was convicted after trial of two counts of contempt of court by (1) interfering with and harassing members of the Police Force who were on duty securing the courthouse and the precincts of the National Court, (2) threatening to shoot members of the Police Force. A hearing was held to determine the punishment. The contemnor argued that payment of fine was the most appropriate punishment. The plaintiff submitted that committal to prison was a punishment available to the court but left the punishment to the discretion of the Court.

Held:

(1) There being no maximum penalty for contempt of court, it is useful to set a notional maximum having regard to written laws providing for punishment for similar offences. An appropriate notional maximum is committal to prison for two years or a fine of K5,000.00 or both.

(2) A useful starting point for punishment purposes is the middle of the range: 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 of the present case to assess the form and extent of the appropriate punishment for each offence.

(3) As the contemnor had been convicted of two offences, normal criminal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle should be applied.

(4) Mitigating factors are: the contemnor complied with a previous order of the Court requiring him to control his supporters; he has co-operated with the Court; and he has no prior convictions and has expressed genuine remorse.

(5) Aggravating factors are that the contemnor was guilty of aggressive and inflammatory conduct what had real potential to cause serious alarm and affront to members of the Police Force; the words were uttered in a tense environment, thereby creating a situation which could easily have got out of hand.

(6) The seriousness of the matter warranted committal to custody for a period of six months on each count.

(7) The offences were each part of the same incident, so the punishments should be served concurrently. No reduction under the totality principle was warranted.

(8) Suspension of the punishment was not appropriate as it would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment. Accordingly the contemnor was committed to custody for a period of six months.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Ian Augerea v David Tigavu (2010) N4188

Manu Kovi v The State (2005) SC789

Mase v The State [1991] PNGLR 88

Newsat Ltd v Telikom PNG Ltd (2008) N3673

Peter Luga v Richard Sikani (2002) N2285

Public Prosecutor v Kerua [1985] PNGLR 85

Richard Sikani v The State and Peter Luga (2003) SC807

Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931

Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49

The State v Dominic Kurai (2008) N3435

The State v James Yali (2005) N2989

The State v Justin Ipa (2008) N3439

PUNISHMENT

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

Counsel

A Kalandi, for the plaintiff

T M Ilaisa, for the contemnor

31st January, 2014

1. CANNINGS J: Peter Charles Yama was convicted after a trial of two counts of contempt of court and this is the court’s decision on punishment. He is referred to in this judgment as ‘the contemnor’.

2. The offences were committed in the course of an incident in the precincts of the National Court at Yabob Road, Madang, on the afternoon of Tuesday 3 September 2013. The Court was that day dealing with an election petition concerning the result of the 2012 election for the seat of Usino-Bundi Open. The contemnor was the petitioner. He was challenging the election of Hon Anton Yagama MP. During the luncheon adjournment, as the contemnor and his lawyer and other associates were driving along Yabob Road in the direction of Modilon Road, they were confronted and threatened with physical violence by a group of Mr Yagama’s supporters. That group of supporters shouted at and abused the contemnor. They had black paint and mud on their faces and some of them were armed with weapons including bushknives, iron rods, stones and axes, which were brandished in a threatening manner, for example by being scraped along the road. Members of the Yagama group had stationed themselves outside the courthouse so that they would be able to intimidate the contemnor and his lawyer and members of the contemnor’s group as they left the precincts of the Court.

3. It was a serious incident, involving threats of violence with weapons and a high level of intimidation, against a party to ongoing court proceedings, and his lawyer and other associates. The aggressors were members of a group of Mr Yagama’s supporters. The contemnor’s supporters were stationed at the opposite end of Yabob Road. They did not offer any aggression and did not get involved in the violent incident. They kept the peace.

4. During the course of the Court’s inquiries into that incident, it became apparent that there was a later incident involving an alleged threat of violence by the contemnor against members of the Police Force. It is the conduct of the contemnor in that later incident, which led to his conviction.

5. The Court found that the contemnor returned to the courthouse at 1.25 pm. He drove along Yabob Road from the direction of Yabob village. He drove near to where the Ramu Police members were located, which was near the NBC building about 50 metres away from the courthouse gate. The contemnor was annoyed over the failure of the Police to disarm Mr Yagama’s supporters and very concerned about what had happened as he and his associates had left the courthouse in the morning. He stopped his vehicle and spoke to the members of the Police Force from Ramu. He asked where the Provincial Police Commander was and when they replied that the PPC was in Port Moresby he complained to them about the job that they were doing. The contemnor said words to the effect:

You Ramu police are not doing your job professionally. Why don’t you disarm the supporters of the member? You have a duty to be fair. You are not being neutral.

6. The contemnor was angry and also said words to the effect:

If anything happens I will shoot you first ... You’ll be the first guys I’ll shoot at, I got some sophisticated (or high-powered) firearms, which I will use to shoot you.

7. As a result of those findings of fact the Court concluded:

8. As to count 1, that the use of such threatening words by the contemnor amounted to interference with and harassment of members of the Police Force. It was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. The contemnor was found guilty of count 1.

9. As to count 2, the fact that there is no evidence that the contemnor took any steps to carry out the threat was of no consequence. It is understandable that he was angry and frustrated. It is accepted that he was genuinely in fear of his personal safety as a result of the morning’s incident. However, uttering those threatening words, in such a tense environment, was aggressive and inflammatory conduct that was likely to interfere in the due administration of justice as it had real potential to cause alarm and affront to members of the Police Force who were required to ensure the security and peace of the precincts of the National Court. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. The contemnor was found guilty of count 2.

10. The contemnor also faced a third charge: ignoring the request and orders of the trial judge made in Court at Waigani on 29 July 2013 that he as a leader was to take control of his supporters and associates to ensure no disturbance took place outside the court while the court was dealing with the proceedings. He was found not guilty of that charge. It was found that the contemnor complied with those orders in that he took control of his supporters and associates, as borne out by the fact that they were well behaved and respectful of the Court. It was...