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Wukawa v Gawi [2015] PGNC 152; N6058 (17 August 2015)

N6058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 41 OF 2014

ELIZABETH MANDUS WUKAWA
Plaintiff

V

CHRISTINE GAWI
Contemnor

Madang: Cannings J
2015: 20th, 21st July, 17 August

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

The contemnor was found guilty after trial of contempt of court for disobeying an order of the National Court, dated 22 January 2014, requiring her, as chief executive officer of a public hospital, to reinstate the plaintiff (a dismissed officer) by 5 February 2014, and to pay the plaintiff's lost salaries and entitlements by 5 March 2014. The contemnor disobeyed the order by not reinstating the plaintiff by 5 February. Her disobedience continued until 5 March 2014 when the Supreme Court stayed the order of 22 January 2014, pending determination of an appeal the contemnor had lodged against the order of 22 January 2014. The appeal was dismissed in October 2014 and immediately after that the contemnor complied with the order of 22 January 2014. A hearing was held to determine punishment.

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) There were a number of significant mitigating factors, in particular the contemnor's exemplary record of public service, the short period of one month that she was in contempt, the speed with which she acted to comply with the National Court order once the Supreme Court appeal was dismissed and the stay order dissolved and the sincerity and completeness of the apology she made to the court and to the plaintiff.

(3) It was nevertheless an intrinsically serious offence, warranting committal to prison for a period of six weeks. It was not appropriate to also impose a fine. The punishment was not suspended.

Cases cited

The following cases are cited in the judgment:

Bank of South Pacific Ltd v Anton Sekum (2011) N4588
Damaru v Vaki OS No 484 of 2014, 03.07.15, unreported
Elias Padura v Stephanie Valikvi (2012) N4894
Elizabeth Mandus Wukawa v Christine Gawi (2015) N6024
Ian Augerea v David Tigavu (2010) N4188
John Rumet Kaputin v The State [1979] PNGLR 559
Kaidai v Nombri (2014) N5718
Newsat Ltd v Telikom PNG Ltd (2008) N3673
Peter Luga v Richard Sikani and The State (2002) N2286)
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Vaki v Baki; In re contempt of court charges against Kulunga (2014) N5612
Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for contempt of court.

Counsel

Y Wadau, for the plaintiff
J Brooks, for the contemnor

17th August, 2015

1. CANNINGS J: The contemnor Christine Gawi has been convicted after trial of contempt of court and this is the decision on punishment. She was found guilty after trial of contempt of court for disobeying an order of the National Court, dated 22 January 2014, requiring her, as chief executive officer of Modilon General Hospital, to reinstate the plaintiff (a dismissed officer) by 5 February 2014, and to pay the plaintiff's lost salaries and entitlements by 5 March 2014.
   
2. The order was made as a result of judicial review proceedings the contemnor commenced by way of a challenge to a decision of the Public Services Commission that the plaintiff be reinstated and paid lost salaries and entitlements. The challenge was unsuccessful so the Court on 22 January 2014 ordered that the decision of the Public Services Commission be enforced. The order stated:
   

The decision of the first defendant [the Public Services Commission] dated 14 August 2013 is binding and shall be complied with as soon as practicable, which means that the second defendant [Ms Wukawa] shall be reinstated by 5 February 2014 and be reimbursed her lost salaries and entitlements by 5 March 2014.

3. The contemnor disobeyed that order by not reinstating the plaintiff by 5 February 2014. Her disobedience continued until 5 March 2014 when the Supreme Court stayed the order pending determination of an appeal the contemnor had lodged against it. In finding the contemnor guilty, the Court found that she carelessly disregarded the order of 22 January 2014 by not taking steps to reinstate the plaintiff by 5 February 2014. She made a conscious decision not to reinstate the plaintiff while waiting for her application to the Supreme Court for a stay of the reinstatement order to be heard. Further details of the circumstances in which the offence was committed are in the judgment on verdict, Elizabeth Mandus Wukawa v Christine Gawi (2015) N6024.
   

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. She stated:
   

I am truly sorry that I did not comply with the Court Orders. I have complete respect and admiration for the Courts and the Judiciary system of PNG. I have never been in trouble with the law before.

I understand that I have acted in defiance of Orders made by this Court and I am extremely embarrassed and regretful. I want to convey my deepest regrets and apologies to this Court and to your Honour for my actions.

I also would like to inform the Court that I have nothing personal against Elizabeth Wukawa and I offer my heartfelt apologies for any hardship I have caused her, her family and other members of the public who might have been affected by my actions.

I plead to your Honour for leniency in my sentencing. I have six children under my care, the youngest being three years old and they are wholly dependent on me. I also plead for leniency for the sake of Modilon General Hospital, whom I humbly believe needs my leadership at this point when challenges are numerous.

PERSONAL PARTICULARS

6. The court received a pre-sentence report from the Community Corrections and Rehabilitation Service, which confirmed the personal particulars the contemnor provided in an affidavit and concluded that she is highly regarded in the Madang community and highly suitable for probation in the event that she is given a suspended sentence.
   
7. Christine Gawi is 57 years old, from Masandanai village, Angoram District, East Sepik Province. She is a single mother with one natural child, aged 34, and six adopted children aged from three to 24 years. She was born in Wabag, Enga Province, and spent the first five years of her life there. Her father was a policeman. The family then moved to Madang Province where she lived in and went to school in Bogia and then Madang town. She did her initial nursing training at the College of Allied Health Sciences in Port Moresby from 1975 to 1978. She worked briefly for a bank and in 1980 commenced her career as a nurse at Angoram Health Centre. She took up a nursing position at Modilon General Hospital in 1982. She held various senior nursing positions over the next 25 years, including Director of Nursing. In 2008 she was appointed acting CEO of the hospital for a short period. In 2010 she was substantively appointed to the position of CEO. She was recently reappointed. She has overseen a major restructure of the hospital during that period.
   
8. In the meantime she has obtained a Certificate in Paediatric Nursing (1984), a Diploma in Health Administration (1989), a Bachelor of Nursing degree (Queensland University of Technology, 1996), a Masters degree in Nursing (Monash University, 2003). She was instrumental in development of the Hospital Standards and Quality Improvement Program for Modilon General Hospital resulting in the Hospital achieving a 4-star rating.
   
9. Christine Gawi is a senior member of the Seventh-Day Adventist Church and is highly regarded in the Church. Glowing character references, attesting to her outstanding personal integrity and qualities and her high-calibre professional standards have been provided by Father Jan Czuba (Chairman, Board of Management, Modilon General Hospital); Sir Peter Barter (former member for Madang Provincial, former Minister for Health); Dr Vincent Atua (Director of Medical Services, Modilon General Hospital); Sister Mary Kehono (Deputy Director Nursing, Modilon General Hospital); Pastor Morris Mania (Madang Town Seventh-Day Adventist Church); Sister Therestia Kol (Catholic Health Manager, Archdiocese of Madang); Mr Jeremiah John Mark (Chief Pharmacist, Modilon General Hospital); Dr John Bolnga (Head of Maternity & Women's Health Service, Modilon General Hospital); Dr Jimmy Aipit (Child Health Specialist, Modilon General Hospital); Sr Margaret Bariasi (In-service Training Co-ordinator, Modilon General Hospital); Mrs Maureen Hill (Member, Board of Management, Modilon General Hospital); and Fr Peter Hunter (Member, Board of Management, Modilon General Hospital).
   

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Brooks relied on an affidavit sworn by the contemnor for the purposes of the punishment hearing. She deposed to the matters highlighted in her allocutus, stressing that she now feels shame and embarrassment about having disobeyed the Court's order and to having defended the charge of contempt. She states that in making the decision not to obey the court order she acted on legal advice that it was not necessary to reinstate the plaintiff by 5 February 2014 as an appeal and an application for a stay order had been filed on 30 January 2014. In deciding to plead not guilty to the contempt charge she acted on the same sort of faulty legal advice provided by her then lawyers (not her present lawyers). Mr Brooks submitted on the basis of that evidence that the contemnor's reliance on faulty legal advice should be taken into account as an extenuating circumstance and a mitigating factor for punishment purposes.
    
11. Mr Brooks stressed that although the contemnor was not seeking to shift responsibility for her disobedience of the court order, there was no or only a small degree of intent to disobey it. She was only, as the court found, in contempt of court for a relatively short period of one month. When her appeal against the National Court's order was dismissed by the Supreme Court she acted as soon as she could to reinstate the plaintiff and arrange payment of the money. Her pre-sentence report and the numerous character references provided by a wide cross-section of the community are testimony to her exemplary record of public service and her contribution to the nursing profession and the health industry in particular. She has numerous dependants who will suffer greatly if she is imprisoned. Her remorse and apology are absolutely sincere.
    
12. As to the form of punishment that should be imposed, Mr Brooks suggested, relying on the decision of Hartshorn J in Bank of South Pacific Ltd v Anton Sekum (2011) N4588, that there is a trend towards imposing fines rather than prison sentences for disobedience forms of contempt, which should be followed in this case due to the many mitigating factors, especially the contemnor's exemplary record of public service, the low degree of culpability, her profuse and sincere apology and the short period for which she disobeyed the court order.
    

SUBMISSIONS BY PROSECUTING COUNSEL

13. Mr Wadau stressed that disobedience of any court order is a very serious matter particularly when the offence is committed by a leader such as the contemnor. Two recent National Court decisions show that contempt of court committed by a person in a leadership position should be dealt with by a custodial penalty. In Vaki v Baki; In re contempt of court charges against Kulunga (2014) N5612 the contemnor, the then Commissioner of Police, Sir Toami Kulunga, was sentenced to seven months imprisonment, by Salika DCJ. In Damaru v Vaki, OS No 484 of 2014, 03.07.15, unreported, the contemnor, the then Commissioner of Police, Geoffrey Vaki, was sentenced to three years imprisonment, by Injia CJ.
    
14. Mr Wadau submitted that little regard should be given to the contemnor's recent claim that she disobeyed the order of 22 January 2014 on legal advice. She has left it too late to make such a claim, which is untested. If that is considered to be a mitigating factor, it is outweighed by the aggravating factors, in particular the stress and inconvenience and financial and psychological trauma that the contemnor's conduct caused the plaintiff, beginning when the contemnor exercised disciplinary powers she did not have against the plaintiff, defying the decision of the Public Services Commission, applying unsuccessfully for judicial review of the PSC decision, disobeying the order of the National Court and then not paying the plaintiff her full entitlements. The court must impose a substantial term of imprisonment to send the appropriate signal to the elite, intelligent, educated and leadership class of PNG society. The signal must be that the Rule of Law is supreme and that disobedience of court orders will result in severe punishment. Imposing a fine will not send that signal as the fine can easily be paid by someone else and be seen to be lenient punishment. Mr Wadau submitted that a five-year prison term should be imposed, half of which could be suspended on condition that the plaintiff is paid all her outstanding entitlements within a set period.
    

DECISION MAKING PROCESS

15. 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 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?
    • step 7: should all or part of the punishment be suspended?
      

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

16. The law under which this matter has been prosecuted – the National Court Rules – does not fix a maximum punishment for contempt. Order 14, Rule 49(1) (punishment) simply states:
    

Where the contemnor is not a corporation the Court may punish contempt by committal to prison or fine or both.

17. The court therefore has a very wide discretion as to punishment. In deciding how it should be exercised it is useful as I suggested in Newsat Ltd v Telikom PNG Ltd (2008) N3673 to set a notional maximum. I have in two cases examined a number of laws that provide for punishment for contempt of court or contempt of other constitutional institutions or governmental bodies and concluded that a notional maximum should be regarded as two years imprisonment or a fine of K5,000.00 or both (Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931; Ian Augerea v David Tigavu (2010) N4188). I follow that approach here.
    
18. I stress that this is a notional maximum. There might be a case in which the nature and extent of the contempt warrant sterner punishment, such as the recent three-year sentence imposed in Damaru v Vaki OS No 484 of 2014, 03.07.15, unreported. However, I regard that as a special case where the contemnor was the nation's most senior ranking member of the Police Force who disobeyed in a deliberate and calculated way over a long period a court order to arrest the nation's political head, the Prime Minister. The facts of the present case, despite Mr Wadau's attempt to place them in a similar category, are far removed from those in Vaki. It remains useful to bear in mind a notional maximum of two years imprisonment or a fine of K5,000.00 or both when determining the appropriate penalty.
    

STEP 2: WHAT IS A PROPER STARTING POINT?

19. The starting point is one year imprisonment or a fine of K2,500.00 or both.
    

STEP 3: WHAT PUNISHMENT HAS BEEN IMPOSED IN EQUIVALENT CASES?

20. This is a disobedience type of contempt (Peter Luga v Richard Sikani and The State (2002) N2286). As I pointed out in Elias Padura v Stephanie Valikvi (2012) N4894 and Kaidai v Nombri (2014) N5718 it has been customary to punish this sort of contempt with a term of imprisonment. Short, sharp sentences in the range of 10 weeks to 18 months imprisonment have been the norm.
    

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

21. I will highlight the mitigating and aggravating factors as they ultimately govern the form and extent of the punishment.
    

Mitigating factors

1. No prior convictions.
   
2. The contemnor is highly regarded in the community and has an exemplary record of public service.
   
3. She was in contempt of the court for a relatively short period (one month).
   
4. Once the stay of the National Court order was dissolved (upon dismissal of the appeal against that order) she acted quickly to comply with the court order.
   
5. She has cooperated fully with the Court during the conduct of this case.
   
6. She has sincerely apologised to the Court and to the plaintiff and expressed genuine remorse.
   
22. As to the contemnor's claim that she acted on faulty legal advice to disobey the order of the Court, I do not regard this as a mitigating factor. I agree with Mr Wadau that this claim was made too late and although it appears to be a genuine claim made in an affidavit, it is untested. It is the sort of consideration that could have been a strong mitigating factor if the contemnor had pleaded guilty, but she took the matter to trial and in effect lost the opportunity to rely on it as a mitigating factor.
    

Aggravating factors

23. There are two aggravating factors. First, disobedience of the court order had an immediate and serious deleterious effect on another person, the plaintiff, who was not reinstated when she should have been. However, I disregard the further stress that Mr Wadau claims the plaintiff has endured because she has not yet been paid her full entitlements. That claim has not been tested and the court is not in a position in these proceedings to determine that claim. The second aggravating factor is that the contemnor was in a leadership position in that she was the person in charge of a very important public institution. Leaders have a duty to lead by example and to obey court orders. She failed to discharge that duty.
    

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

24. Should the Court commit the contemnor to prison? Or impose a fine? Or impose both forms of punishment? As I said in Liriope and Valikvi prison terms for contempt of court provide a more effective deterrent than a fine. It is a better way of signalling the community's condemnation of the contemnor's conduct than a fine. It underlines the seriousness of the matter if a contemnor is required to spend time in prison. It reinforces the absolute duty of everyone to comply with court orders (Yap v Tan [1987] PNGLR 227). Committal to custody should not be regarded as a drastic form of punishment or something reserved for the worst cases of contempt. For disobedience contempt the previous cases show that a prison term is the most appropriate form of punishment: the natural and ordinary consequence of being found guilty of this type of offence (John Rumet Kaputin v The State [1979] PNGLR 559). I am not convinced by Mr Brooks' submission that there is a trend towards imposing fines rather than prison terms for a disobedience contempt, which are sometimes described as a civil, as distinct from criminal, contempt. In fact, judging by the recent decisions in Kulunga and Vaki, the trend might be going in the opposite direction.
    
25. I have concluded that a fine would not be appropriate, even a substantial fine of K10, 000.00; at least not in a case that has gone to trial. I am not saying that entering a plea of not guilty should be regarded as an aggravating factor, but to indicate that contemnors who plead guilty should be given proper consideration for doing so. I agree with Mr Wadau that the most appropriate form of punishment in this case is committal to custody. It is not appropriate that there be a fine in addition to committal to custody.
    

STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE?

26. The number and the strength of the mitigating factors far outweigh the aggravating factors. The following mitigating factors are very significant: the contemnor's exemplary record of public service; the short period of one month that the contemnor was in contempt; the speed with which she acted to comply with the National Court order once the Supreme Court appeal was dismissed and the stay order dissolved; and the sincerity and completeness of the apology she made to the court and to the plaintiff. The term of imprisonment must be well below the starting point. I fix the term as six weeks.
    

STEP 7: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?

27. Suspending all or part of the prison term is an option under Order 14, Rule 49(3) of the National Court Rules, which states:
    

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

28. I have decided not to suspend the punishment as that would create the impression (as would be the case if a fine were imposed) that the Court is showing excessive leniency for what is a very serious matter.
    

COSTS

29. It would cause undue hardship to the contemnor if she were, in addition to serving time in custody, be required to pay the plaintiff's legal costs. I will order that the parties bear their own costs.
    

ORDER

30. The formal orders of Court are:
    
    • (1) The contemnor, Christine Gawi, having been convicted of contempt of court, is punished as follows:
      

(2) The parties will bear their own costs.

Punishment accordingly.

Young Wadau Lawyers: Lawyers for the Plaintiff
Ashurst Lawyers: Lawyers for the Contemnor