Ian Augerea Registrar Of The National Court v Hon Anton Yagama MP (2014) N5477

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2014
• Citation: (2014) N5477
• Docket Number: OS NO 473 OF 2013
• Court: National Court
• Year: 2014
• Judgement Number: N5477

Full Title: OS NO 473 OF 2013; Ian Augerea Registrar Of The National Court v Hon Anton Yagama MP (2014) N5477

National Court: Cannings J

Judgment Delivered: 31 January 2014

N5477

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 473 OF 2013

IAN AUGEREA

REGISTRAR OF THE NATIONAL COURT

Plaintiff

V

HON ANTON YAGAMA MP

Contemnor

Madang: Cannings J

2014: 22, 31 January

CONTEMPT – incident outside courthouse – threats and incitement to violence by supporters of a party to ongoing court proceedings – punishment of person whose supporters were involved in incident – responsibility for conduct of supporters.

The contemnor was convicted after trial of two counts of contempt of court by (1) failing to take adequate steps to prevent his supporters and associates from threatening and inciting physical violence against and intimidating the petitioner and the petitioner’s lawyer and supporters and associates; and (2) failing to prevent his supporters and associates from disturbing the peace of the precincts of the National Court. The contemnor argued that payment of fine was more suitable or 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 was not present at the incident; 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 ultimately responsible for the violent incident that erupted in the precincts of the court. He failed to discharge his duty to the court.

(6) The seriousness of the matter warranted committal to custody for a period of 18 months on each count.

(7) The offences were each part of the same incident, so the punishments should be served concurrently. A reduction under the totality principle was warranted as the contemnor is an MP and may lose his seat, causing inconvenience and a loss of empowerment for his constituents, if he is punished for a period of more than nine months. The total punishment imposed was nine months imprisonment.

(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 nine 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

Re Valentine Kambori (No 3) (2003) N2490

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 Boboro, for the contemnor

31st January, 2014

1. CANNINGS J: The Honourable Anton Yagama MP has been convicted after a trial 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 contemnor was convicted of two counts of contempt in relation to an incident outside the National Court at Yabob Road Madang at 11.20 am on Tuesday 3 September 2013. The Court had that morning commenced hearing various applications regarding the result of a Court-ordered recount of votes in the 2012 general election for the seat of Usino-Bundi Open. The result of the election had been the subject of an election petition, EP No 52 of 2012. The petitioner was Mr Peter Charles Yama, who was challenging the election of the contemnor.

3. That incident led the Registrar of the National Court, Mr Ian Augerea, to charging Augustine Koroma and 12 others, who are supporters of the contemnor, with contempt of court. The Court had, at an earlier hearing, expressed concern about the conduct of supporters of the parties and ordered that the petitioner and the contemnor and their supporters were restrained from causing or inciting any form of disturbance to any of the parties and requested the petitioner and the contemnor to lead and take control of their supporters. The Registrar of the National Court inquired into the incident and charged the contemnor with three counts of contempt of court.

4. The court found, as to count 1, failing to take adequate steps to prevent his supporters and associates from threatening and inciting physical violence against and intimidating the petitioner and the petitioner’s lawyer and supporters and associates, that the contemnor failed to take adequate steps to ensure that this sort of thing did not happen. He as a leader should have ensured before the day of the hearing that his supporters did not come to court with painted faces, shouting war-cries and armed with weapons. He has given evidence that he knew about the Court’s orders, as did his supporters. Therefore he should have warned them that aggressive and intimidating behaviour of that kind would not be tolerated. Upon coming to the courthouse on the morning of 3 September 2013 he should have re-emphasised to his supporters that they must not engage in any aggressive, violent or other contemptuous behaviour.

5. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters. I find that it has been proven beyond reasonable doubt that he failed to discharge that duty by failing to take adequate steps to prevent his supporters from engaging in contemptuous conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor was guilty of count 1.

6. The court found, as to count 2, failing to prevent his supporters and associates from disturbing the peace of the precincts of the National Court, that it was a fact that the contemnor’s supporters disturbed the peace of the precincts of the National Court. The court had by its orders and requests made at the previous hearing imposed a legal and moral duty on the contemnor to control his supporters by ensuring that they did not engage in any conduct that disturbed the peace of the precincts of the National Court. A courthouse and the immediate physical area in which it is situated are special, sacrosanct areas. All persons who come into these areas must preserve the peace. To engage in any rowdy or violent behaviour is a show of disrespect to the Court. The contemnor failed to discharge his duty to the court by failing to take adequate steps to prevent his supporters from engaging in such conduct. His failure to act appropriately meant that he was engaging in conduct (of omission rather than commission) that was calculated (ie likely) to interfere with the due administration of justice. The contemnor was guilty of count 2.

ANTECEDENTS

7. The contemnor has no prior convictions.

ALLOCUTUS

8. He stated:

My name is Anton Francis Yagama.

I now stand before this Honourable Court having being found guilty of contempt of court. The contempt charges arise from an incident that occurred outside the premises of the court house, here in Madang on 3 September 2013.

I wish to sincerely apologize to your Honour and to this Honourable Court and the staff of this Court for the particular incident that occurred on 3 September 2013.

I also wish to sincerely apologize to the petitioner, Mr Peter Yama, and his family and his supporters.

Furthermore I wish to sincerely apologize to my family members and my supporters and all those persons who have been affected in one way or the other by the incident.

I have long involvement with the people of high profile and standing in this community and they have...