Ian Augerea, Registrar of the National Court v Augustine Koroma, Jack Tongia,and Kunda Kana, Michael Tomorangai, and Rutai Tongia & Steven Andanbo (2014) N5475

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2014
• Court: National Court
• Citation: (2014) N5475
• Docket Number: OS NO 473 OF 2013
• Year: 2014
• Judgement Number: N5475

Full Title: OS NO 473 OF 2013; Ian Augerea, Registrar of the National Court v Augustine Koroma, Jack Tongia,and Kunda Kana, Michael Tomorangai, and Rutai Tongia & Steven Andanbo (2014) N5475

National Court: Cannings J

Judgment Delivered: 31 January 2014

N5475

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 473 OF 2013

IAN AUGEREA,

REGISTRAR OF THE NATIONAL COURT

Plaintiff

V

AUGUSTINE KOROMA, JACK TONGIA,

KUNDA KANA, MICHAEL TOMORANGAI,

RUTAI TONGIA & STEVEN ANDANBO

Contemnors

Madang: Cannings J

2014: 2, 31 January

CONTEMPT – contempt committed outside courtroom, within precincts of court – threatening and inciting violence against parties and lawyers – punishment – six contemnors convicted of two offences each – sentencing principles for multiple offences – whether committal to prison or fine is appropriate.

Six persons were each convicted after trial of two counts of contempt of court by (1) threatening and inciting violence against and intimidating a party and others to court proceedings; and (2) disturbing the peace of the precincts of the National Court. This interfered directly with the due administration of justice. A hearing was held to determine punishments. The contemnors argued that payment of fines was more suitable or appropriate punishments. The plaintiff submitted that committal to prison for 6 to 12 months each was the appropriate 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 each 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 contemnors have co-operated with the Court; and they have no prior convictions and have expressed genuine remorse.

(5) Aggravating factors are that the contemnors disobeyed an earlier order of the National Court; ignored the Court’s warning; were involved in an armed and angry mob; incited physical violence, creating a situation which could easily have got out of hand and 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 18 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 each contemnor was committed to custody for a period of 18 months.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Bishop Brothers v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Elias Padura v Stephanie Valikvi (2012) N4894

Ian Augerea v David Tigavu (2010) N4188

Ian Augerea, Registrar of the National Court v Augustine Koroma & 12 Ors (2013) N5434

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 (2008) N3673

Peter Luga v Richard Sikani (2002) N2285

Public Prosecutor v Kerua [1985] PNGLR 85

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

Re 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 (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 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 six individuals found guilty of contempt of court.

Counsel

A Kalandi, for the plaintiff

T Boboro, for the contemnors

31st January, 2014

1. CANNINGS J: The six contemnors were each convicted after trial of two counts of contempt of court and this is the court’s decision on punishment. The offences were committed in the course of an incident in the precincts of the National Court at Yabob Road, Madang, on the morning of Tuesday 3 September 2013.

2. 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 petitioner, Peter Charles Yama, was challenging the election of Hon Anton Yagama MP. During the luncheon adjournment, as the petitioner Mr Yama 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 Mr Yama. 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 Mr Yama and his lawyer and members of Mr Yama’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. Mr Yama’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. The aggressive conduct of Mr Yagama’s supporters was likely to interfere in the due administration of justice as it had real potential to interrupt the orderly dispatch of the business of the National Court by hampering the ability of Mr Yama and his lawyer (who is an officer of the court) to freely put their case to the court without fear of intimidation or reprisal. Conduct of this nature is a sign of disrespect to the Court and is a threat to the authority of the Court. It is conduct that constitutes contempt of court.

5. Thirteen people were charged with contempt for their direct involvement in the incident. Six were found guilty (the six now before the Court to be punished). Six were found not guilty. One died and no verdict was entered against him.

6. The six who were found guilty were each convicted of:

(1) threatening and inciting violence against and intimidating a party and others to court proceedings; and

(2) disturbing the peace of the precincts of the National Court.

Further details are in the judgment on verdict, Ian Augerea, Registrar of the National Court v Augustine Koroma & 12 Ors (2013) N5434.

ANTECEDENTS

7. None of the contemnors has prior convictions.

ALLOCUTUS

8. The contemnors were given the opportunity to address the court on the question of punishment. They each said:

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

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

Furthermore I wish to sincerely apologise to Honourable Anton Yagama and all those persons who have been affected in one way or the other by the incident.

As I have now been found guilty of the contempt of court, I wish to humbly seek your Honour forgiveness and sympathy and to humbly as this Honourable Court to impose a non-custodial penalty or sentence against me.

I am truly sorry for the incident that occurred on the 3 of September 2013.

9. They emphasised that they were first-time offenders. They asked for the mercy of the Court and promised that they would not repeat what they did.

PERSONAL PARTICULARS

10. The following particulars were provided by counsel for the contemnors, Mr Boboro.

11. Augustine...