Christine Gawi, CEO - Modilon General Hospital v Elizabeth Mandus Wukawa and Independent State of Papuanew Guinea (2016) SC1478

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Makail & Polume-Kiele JJ
• Judgment Date: 02 February 2016
• Court: Supreme Court
• Citation: (2016) SC1478
• Docket Number: SCM NO. 101 OF 2015
• Year: 2016
• Judgement Number: SC1478

Full Title: SCM NO. 101 OF 2015; Christine Gawi, CEO - Modilon General Hospital v Elizabeth Mandus Wukawa and Independent State of Papuanew Guinea (2016) SC1478

Supreme Court: Hartshorn, Makail & Polume-Kiele JJ

Judgment Delivered: 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: 16th December &

2016: 2nd 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 15th 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 03rd 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 31st 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] 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

2nd February, 2016

1. BY THE COURT: This is an appeal against a sentence of six weeks imprisonment imposed by the National Court on 17th 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 22nd January 2014 the National Court handed down its decision and dismissed the application for judicial review. The National Court ordered Ms. Wukawa’ reinstatement by 5th February 2014 and that she be paid all of her outstanding entitlements by 5th March 2014.

4. On 30th 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 5th March 2014 and the appeal was subsequently dismissed on 30th October 2014. In the meantime, on 7th 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 03rd 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...