Madang Cocoa Growers Export Co Limited v Noilai Gunar and Gee Gunar and Madang Provincial Government (2013) N4956

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 January 2013
• Court: National Court
• Citation: (2013) N4956
• Docket Number: OS NO 297 of 2011
• Year: 2013
• Judgement Number: N4956

Full Title: OS NO 297 of 2011; Madang Cocoa Growers Export Co Limited v Noilai Gunar and Gee Gunar and Madang Provincial Government (2013) N4956

National Court: Cannings J

Judgment Delivered: 31 January 2013

N4956

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 297 OF 2011

MADANG COCOA GROWERS EXPORT CO LIMITED

Plaintiff

V

NOILAI GUNAR

First Defendant

GEE GUNAR

Second Defendant

MADANG PROVINCIAL GOVERNMENT

Third Defendant

Madang: Cannings J

2012: 12 November,

2013: 23, 31 January

CONTEMPT – disobedience of court order – punishment – individual contemnors – whether committal to prison or fine is appropriate – whether appropriate to suspend punishment

Two persons (the contemnors) were found guilty after trial of contempt of court for disobeying an order of the National Court regarding occupation and use of a warehouse. A hearing was held to determine the punishment. The contemnors argued that payment of a moderate fine or a suspended prison sentence was sufficient punishment. The plaintiff submitted that committal to prison for two years for each contemnor was necessary.

Held:

(1) A useful starting point for punishment purposes is 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 to assess the form and extent of the appropriate punishment.

(2) Mitigating factors are: the contemnors did not engage in any other contumacious conduct except by disobeying the Court’s order; each has co-operated with the court; each has attempted to purge their contempt; no prior convictions.

(3) Aggravating factors are: the contemnors breached the Court’s order in a way that had an immediate and seriously deleterious effect on other persons; and in the case of one of the contemnors he being the Provincial Administrator breached his duty as a leader to be a role model for the People of the Province and Papua New Guinea as to how they should respect and comply with orders of the National Court.

(4) The seriousness of the matter warranted committal to prison for a period of six months in the case of the first contemnor and 12 months in the case of the second contemnor.

(5) This was an appropriate case in which to suspend the punishment for each contemnor subject to payment of compensation to the plaintiff (K5,000.00 in the case of the first contemnor, K10,000.00 in the case of the second contemnor) within 14 days and compliance with other strict conditions.

Cases cited

The following cases are cited in the judgment:

Elias Padura v Stephanie Valakvi (2012) N4830

Ian Augerea v David Tigavu OS No 582 of 2010, 20.12.10

John Rumet Kaputin v The State [1979] PNGLR 559

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

Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881

Newsat Ltd v Telikom PNG Ltd (2007) N3673

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

Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572

Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

S Asivo, for the plaintiff, with leave of the Court

B W Meten, for the first contemnor, G Gunar

Y Wadau, for the second contemnor, B Lange

31 January, 2013

1. CANNINGS J: Gee Gunar and Bernard Lange have been convicted after a trial of contempt of Court and this is the Court’s decision on punishment. They were found guilty of deliberately disobeying an order of the National Court dated 25 June 2012 that gave the plaintiff, Madang Cocoa Growers Export Co Ltd, exclusive occupation and use of a warehouse in Madang town known as the “DPI Buffalo Shed” or “Number 2 Didiman Station” and required the warehouse to be vacated and left in good order and condition by 31 July 2012.

2. The first contemnor, Mr Gunar, who is the second defendant in ongoing proceedings regarding the warehouse, disobeyed the order by leaving his property in the warehouse thus not allowing the plaintiff exclusive use and occupation of it and by not vacating the warehouse by the date ordered and by not leaving it in good order and condition.

3. The second contemnor, Mr Lange, is the Provincial Administrator of Madang Province. He is not a defendant in the ongoing proceedings but he is the chief executive officer of Madang Provincial Government, which is one of the defendants to which the order of 25 June 2012 was expressly directed. He is the administrative head of the staff in the province and responsible for efficient management of administrative services in the province. His constitutional duty was to ensure that any orders of any court directed at Madang Provincial Government were complied with. He failed to discharge that duty and was found to have failed personally to comply with the orders of 25 June 2012 in the same way that the first contemnor failed to comply. Further details of how the contemnors committed contempt of court are set out in the judgment on verdict, Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881 (note that in that judgment, in which six contemnors were involved, Mr Gunar was the second contemnor and Mr Lange the third contemnor).

ANTECEDENTS

4. Neither contemnor has any prior conviction.

ALLOCUTUS

5. Each contemnor was given the opportunity to address the Court on the question of punishment.

Gee Gunar: I accept the Court’s orders and I apologise for the inconvenience I have caused. I work on important projects for the Lutheran Church. This is my first time to be in Court. I am married with three children, who are attending school.

Bernard Lange: I understand that I am liable as chief executive officer of Madang Provincial Government for the acts and omissions of the provincial administration. I was under the impression that the whole matter was an administrative matter between Steven Asivo and Noilai Gunar, directors of the Madang Cocoa Co. I sincerely apologise for non-compliance with the Court’s orders. I am married with two children, one aged 16 and the other aged 13, and both are attending international schools which costs me K30,000.00 in school fees. I joined the Madang Provincial Administration in 1988. I have no criminal record. I have provided character references for the Court’s consideration. I have done a lot of project negotiations for Madang Province, which will soon materialise. I ask for a non-custodial sentence.

PRE-SENTENCE REPORTS

6. Pre-sentence reports were prepared by the Community Correction and Rehabilitation Service. Gee Gunar is aged 50 and is from Sein village in the South Ambenob area of Madang Province and lives in the village. His father is deceased. He is married with three children. He has a grade 10 education. He has a long employment record and currently holds the position of Secretary of the Lands and Property Department of Madang Provincial Government. He is the co-ordinator of land mediation concerning the Ramu Nickel Project. He has unspecified financial problems. His health is sound and he does not drink alcohol. He is an active member of the Lutheran Church and holds a number of important administrative positions within the Church. He is a respected public figure in the local community. He is recommended for probation.

7. Bernard Lange is aged 52 and is from Giri village in the Bogia District of Madang Province and lives in Madang. He is married with four children, two of whom are adopted. Also wholly dependent on him for financial support are his brother and his elderly father who live in town. He has a Bachelor of Arts Degree from the University of Papua New Guinea, a Graduate Diploma in Human Resource Development from Curtin University and a Masters of Educational Leadership from Divine Word University. After employment in 1980 with the Registrar-General’s office and later ANZ Bank he joined the Madang Provincial Administration in 1988 as an Assistant Staff Development Officer. He was appointed Provincial Administrator in 2010. Apart from high blood pressure his health is sound. He is an active member of the Catholic Church. His Parish Priest Father Joseph Durero SVD describes him as a legend in the parish, someone who has a loving heart for God and for people and who is considered as a model especially for the young generation. Also providing a character reference is Mr Stotick Kamya, Deputy General Manager of Community Affairs, Ramu Nico Management (MCC) Ltd, who speaks highly of Mr Lange’s long period of service to Madang Province and his deep appreciation of community and cultural values and says he is a person of respect and significance within the civil service and the community at large.

DECISION MAKING PROCESS

8. To determine the appropriate punishment the following decision-making process is adopted:

· step 1: what is the maximum punishment?

· step 2: what is a proper starting point?

· step 3: what punishment has been...