Ian Augerea,Registrar of the National Court v David Tigavu (2010) N4188

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 December 2010
• Citation: (2010) N4188
• Docket Number: OS NO 582 Of 2010
• Court: National Court
• Year: 2010
• Judgement Number: N4188

Full Title: OS NO 582 Of 2010; Ian Augerea,Registrar of the National Court v David Tigavu (2010) N4188

National Court: Cannings J

Judgment Delivered: 20 December 2010

N4188

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 582 OF 2010

IAN AUGEREA,

REGISTRAR OF THE NATIONAL COURT

Plaintiff

V

DAVID TIGAVU

Contemnor

Madang: Cannings J

2010: 17, 20 December

PUNISHMENT

CONTEMPT – contempt committed outside courtroom, within precincts of court – threatening and inciting violence against parties – threatening and abusing lawyers – threatening and abusing witnesses – punishment – three contempt offences – sentencing principles for multiple offences – whether committal to prison or fine is appropriate – sentence of 12 months imprisonment imposed.

The contemnor was found guilty of three counts of contempt of court for instigating an incident outside a courtroom, within the precincts of the National Court: (1) threatening and inciting violence against and between parties to ongoing court proceedings, (2) threatening and abusing lawyers involved in those court proceedings, (3) threatening and abusing persons who may be witnesses in those proceedings. A hearing was held to address the question of punishment.

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 multiple 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 that the contemnor was under pressure from the members of his organisation at the time of the incident; did not carry out the threat of violence against the person; did not prolong the threats once instructed by courthouse security to stop; apologised soon after the incident; expressed genuine remorse; co-operated with the court; has no prior convictions; has a serious medical condition.

(5) Aggravating factors are that the contemnor was guilty of instigating an incident that could have erupted into a riot; severely interrupted the peace, order and sanctity of the court; showed gross disrespect and disregard of the Court, its authority and processes.

(6) The seriousness of the matter warranted committal to custody for a period of 12 months on each count.

(7) As the direct, physical victim in counts 1 and 3 was the same person, the punishment for those counts should be served concurrently, but as the direct, physical victims in count 2 were different, the punishment for count 2 should be served cumulatively to counts 1 and 3. The total potential punishment was 2 years imprisonment.

(8) Under the totality principle, taking into account, again, the strength of the apologies and the contemnor’s medical condition, the total punishment was reduced to 12 months imprisonment.

(9) 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.

(10) Accordingly the contemnor was committed to custody for a period of 12 months.

Cases cited

The following cases are cited in the judgment:

Augerea v Tigavu (2010) N4185

Bishop Brothers v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

John Rumet Kaputin v The State [1979] PNGLR 559

Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923

Manu Kovi v The State (2005) SC789

Mase v The State [1991] PNGLR 88

Newsat Ltd v Telikom PNG Ltd (2007) N3673

Peter Luga v Richard Sikani and The State (2002) N2286

Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448

Public Prosecutor v Kerua [1985] PNGLR 85

Re Contempt of Court Proceedings against Valentine Kambori (No 3) (2003) N2490

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

Ross Bishop v Bishop Brothers [1988-89] PNGLR 533

Sr Dianne Liriope v Dr Jethro Usurup OS No 765 of 2007, 15.07.09

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 John Rumet Kaputin [1979] PNGLR 544

The State v Justin Ipa (2008) N3439

Yap v Tan [1987] PNGLR 227

PUNISHMENT

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

Counsel

N Goodenough, for the plaintiff

B W Meten, for the contemnor

20 December, 2010

1. CANNINGS J: The contemnor, David Tigavu, has been convicted of three counts of contempt of court and this is the court’s decision on punishment.

2. The offences were committed in the course of an incident outside the courtroom of the National Court at Madang on Thursday 23 September 2010. Soon after the court adjourned at about 12 noon and those involved in the court proceedings, lawyers and members of the public left the courtroom, there was a commotion outside, which the contemnor instigated. He (1) threatened and incited physical violence against and between parties to ongoing court proceedings, WS No 202 of 2010; (2) threatened and abused lawyers who were involved in those court proceedings and (3) threatened and abused a person who was a witness in those court proceedings.

3. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Augerea v Tigavu (2010) N4185.

ANTECEDENTS

4. The contemnor has no prior convictions.

ALLOCUTUS

5. The contemnor was given the opportunity to address the court on the question of punishment. He said:

I apologised for this incident soon after it happened, both at the courthouse gate and in my letters to the lawyers and to the court. I again apologise to the court and to your Honour, to the courthouse staff, to the lawyers and to everyone who may have been offended by my conduct. It is my first time to be before the court for anything like this. A lot of us have been put under tremendous pressure by the court proceedings on the DSTP (deep-sea tailings placement system), especially the people of Kurumbukari, who I represent. This incident was not planned. There were a lot of people at the courthouse and the atmosphere was tense. I was provoked by [the lawyer for one of the parties] Tiffany Nonggorr taking photos of me and my group, and that is how the argument started; and the lawyers also argued with me.

PERSONAL PARTICULARS

6. David Tigavu is 48 years old, and is married with 13 children. He is the sole breadwinner of the family. He has been chairman of the Kurumbukari Landowners Association, a group of customary landowners in the Bundi area of Madang Province (the site of the Ramu Nickel mine) who have not been happy about the delay to commencement of the mining project, which they believe has been caused by the court proceedings, WS No 202 of 2010.

7. He has a serious medical condition. He has a 12-year history of type II diabetes complicated by bilateral retinopathy. He suffers from hypertension and chronic anaemia and renal failure.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the same sort of decision-making process that I set out in Sr Dianne Liriope v Dr Jethro Usurup OS No 765 of 2007, 15.07.09, a case in which a contemnor, the CEO of a general hospital, was sentenced to six months imprisonment for contempt of court for disobeying a court order not to take disciplinary action against a nurse without the leave of the court. Further steps in the process are added here to accommodate the fact that the contemnor is being punished for multiple offences and, in that regard, normal criminal sentencing principles relating to whether the punishment should be served cumulatively or concurrently and the totality principle will be applied. Nine steps are involved –

· 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 for each count?

· step 7: should the punishment be served concurrently or cumulatively?

· step 8: what is the effect of the totality principle?

· step 9: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

9. The law under which this matter has been prosecuted – the National Court Rules – does not fix a maximum...