Prothonotary of the Supreme Court of New South Wales v Shane Francis Dowling

1. [1]

   HER HONOUR: Shane Francis Dowling appears for sentence with respect to three counts of contempt of court, offences of which he was found guilty on 3 August 2017.

2. [2]

   The circumstances in which the contempt arose, and the facts of the offences, are fully set out in Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 664. I do not propose to refer to them in detail here. Suffice to say that count 1 reflects the contemnor’s act in disrupting the proceedings before a Registrar of this Court on 3 February 2017 by loudly and aggressively making insulting and baseless allegations to the officer presiding; whilst counts 2 and 3 both relate to material published by the contemnor in deliberate contravention of orders of Beech-Jones J that had been made on 3 February 2017.

3. [3]

   The contemnor does not dispute that he acted as he was found to have done by this Court. His pleas of not guilty were based upon his assertion that his conduct was not in contempt of court, as it was protected by a right to make what the contemnor refers to as “political communication”.

Delay

1. [4]

   Before turning to consider matters relevant to sentence, something should be said to explain the extraordinary delay in bringing this matter to sentence.

2. [5]

   Upon the contemnor being found guilty of the three counts brought against him, an adjournment was sought by him to permit him to obtain legal representation, the contemnor having until that point represented himself. Time was allowed for that purpose. There followed a series of adjournments on the application of the contemnor whilst he pursued a grant of legal aid.

3. [6]

   Having been initially refused legal aid, the contemnor was ultimately granted aid, and a solicitor and counsel were briefed. The contemnor quickly withdrew instructions from counsel. Alternative counsel was retained, but the contemnor again withdrew his instructions, from both his solicitor and barrister. When the sentence was ultimately heard, on 17 August 2018, the contemnor was unrepresented (although he did have the benefit of submissions on sentence drafted by counsel).

4. [7]

   Over the year that it took the contemnor to obtain legal representation, and then withdraw his representatives’ instructions, the Prothonotary was at all times ready to proceed, and the Court was in a position to hear the matter.

The Principles of Sentence Relevant to Contempt

1. [8]

   In In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 I set out the principles that apply when sentencing a contemnor, at [36] – [41]:

2. [9]

   In R v Dent [2016] NSWSC 444 R A Hulme J, referring to that portion of In the Matter of Steven Smith, added a further sentencing consideration, at [53], saying,

3. [10]

   There is a further issue of law that arises, or which may arise with respect to this matter, being the possible application of rule 40.7 of the Uniform Civil Procedure Rules 2005 (“UCPR”). That rule relevantly provides:

4. [11]

   If applicable, the rule would operate to prevent the imposition of a custodial sentence upon the contemnor with respect to counts 2 and 3 unless he had earlier been served with a sealed copy of the orders he breached that bore a notice warning that disobedience to the order could result in imprisonment.

5. [12]

   Whilst a copy of the orders of Beech-Jones J was served upon the contemnor on 3 February 2017, the document did not bear a notice of the type referred to in r 40.7(3) UCPR.

6. [13]

   The Prothonotary argues that the rule does not apply in the circumstances of this matter, as the orders made by Beech-Jones J were not specifically directed to the contemnor, but were general orders. In the written submissions filed by the contemnor (which were written by counsel before counsel’s instructions were withdrawn) the contemnor took the same position. In oral submission however, the contemnor expressed the contrary view, arguing that, in the absence of a notification to him of the danger of a custodial penalty being imposed in the event of a breach of the order, to impose such a sentence is impermissible.

7. [14]

   In my view the written submissions of the parties are correct, and the rule does not apply in this matter, because of the general nature of the orders made by Beech-Jones J. The orders were not directed to any specific person who was to be “bound by the judgment”, and in those circumstances there was no requirement for a warning to persons at large of the potential consequences of breaching a court order.

8. [15]

   If that conclusion is wrong, this is a matter where I would, in any event, have exercised the dispensing power provided by r 40.7(5) and, to the extent that it is necessary to do so, the requirement for notice referred to in r 40.7(3) of the UCPR is dispensed with.

9. [16]

   From his previous experience of contempt proceedings, the contemnor would have been well aware of the possibility of a custodial sentence being imposed upon those who breach court orders and are subsequently dealt with for contempt. In Jane Doe 1 & Anor v Shane Dowling, proceedings which pre-date these matters, and to which the contemnor is a party, Campbell J made non-publication orders that were served upon the contemnor, and which carried the warning required by r 40.7(3). The contemnor has been on notice at least since that point that imprisonment is a sentence that may be imposed upon those who are in contempt of court.

10. [17]

    Further, on all of the evidence available to the Court there is no reason to conclude that, had the notice been included in the order, the contemnor would have desisted from breaching it. In the Jane Doe proceedings, and despite having been served with the orders and notice, the contemnor breached the Court’s orders both by allowing material the subject of non-publication orders to remain on his website, and by publishing further material. He did that in full knowledge of the potential consequences.

11. [18]

    With respect to these matters the evidence is that the contemnor, having been found guilty of contempt for, in part publishing material in breach of the orders of Beech-Jones J, left the material on his website, where it apparently remains to this day. The contemnor told this Court that he did not obey the orders of Beech-Jones J because he regards the orders as invalid (at Transcript on Sentence - “TOS” – 37). It seems that he reserves to himself the right to decide which court orders he will obey and which he will disobey. Indeed, in his evidence and submissions on sentence the contemnor, despite my repeated requests that he not do so, frequently restated the very matters that are presently the subject of the non-publication order, in circumstances where there was no forensic necessity or advantage to him in doing so. His conduct in that regard appeared entirely wilful.

12. [19]

    Although the contemnor claimed that, because of the absence of the penal notice endorsed on the orders of Beech-Jones J, he believed that the orders were nothing more than an attempt to intimidate him, I do not accept that self-serving statement.

13. [20]

    I have no doubt at all that the contemnor has long understood the prospect that he could be gaoled if found to be in contempt of court, and well understood it when he was notified of the orders made by Beech-Jones J.

The Objective Gravity of the Offending Conduct

1. [21]

   As with any offence, it is essential for the Court to make an assessment of the gravity of the matters listed for sentence. Factors to be considered in making that assessment in relation to an offence of contempt were comprehensively set out by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, by reference to ten specific factors. They are:

2. [22]

   Count 1 is a serious example of contempt because of the nature and extent of the disruption occasioned to the proceedings of the Supreme Court by the contemnor’s conduct. A busy list before a Registrar of the Court was disrupted and prevented from continuing for a time by the disgraceful and scurrilous attack upon the Court that was made by the contemnor, and the aggressive and intimidating way in which the attack was made. In excess of forty persons present in the court room were exposed to the contemnor’s conduct, which must have been highly disturbing to all of those present, and the matters those persons were present to have the Court deal with were delayed. A judicial officer was subjected to a tirade of distressing abuse delivered in an intimidating way, and another judicial officer (who was not present) was made subject of the same baseless abuse.

3. [23]

   The situation is akin to that before Buddin J in Prothonotary v Wilson [1999] NSWSC 1148, where it was said, at [21] – [23]:

4. [24]

   In this case the scurrilous abuse directed at a registrar and a judge of the Court interfered with the proper administration of justice, and undermined the authority of the Court. This was contumacious contempt.

5. [25]

   The contemnor sought to rely upon remarks made by McCallum J in Capilano Honey Ltd v Dowling [2018] NSWSC 876 at [20] to diminish the seriousness of his attack upon the Court, by asserting that he was entitled to say what he liked, to or about a judicial officer, in a court room or outside the court, but his assertion is an empty one. There is nothing in Capilano Honey that could legitimately give rise to such a belief.

6. [26]

   Counts 2 and 3 represent deliberate and wilful defiance of the orders of the Court, acts which undermine and demean the authority and integrity of the Court, and which is contumacious. There is no question but that the contemnor breached the orders of Beech-Jones J knowingly, and intending to do so. He continues to be in breach of the orders in that he maintains the material on his website.

7. [27]

   The work of the Court, and the administration of justice more widely is frustrated if court orders are disobeyed. The contemnor’s conduct in defiantly disobeying the Court are most serious breaches.

8. [28]

   With respect to count 1, it is difficult to conclude otherwise than that the contemnor must have had some appreciation of the consequences to him of his conduct in court on 3 February 2017. He was warned by the Registrar that steps would be taken against him, but remained defiant in his aggressive abuse. The contemnor subsequently referred on his website to his act in giving the registrar “a mouthful”, with apparent pride. He acted in spite of an understanding of the possible consequences, not in ignorance of them.

9. [29]

   As to counts 2 and 3, I have already concluded in the context of the potential applicability of r 40.7 to the contemnor’s case that the contemnor well understood the possible consequences to him of breaching the orders.

10. [30]

    Although the contemnor’s evidence on sentence on 17 August 2018 was given long after his commission of these offences, it is clear from that evidence (TOS 33:41) that the contemnor regards imprisonment as an expected evil of the justified crusade he regards himself as being on. Having regard to his not inconsiderable experience of contempt proceedings, I am satisfied beyond reasonable doubt that this was also his view in February 2017.

11. [31]

    The contempt of which the contemnor has been found guilty arose in the context of, but did not directly relate to, the Jane Doe proceedings. Because there is no direct link, there is no actual consequence of the contempt for those proceedings. The consequences are more broadly to the proper administration of justice.

12. [32]

    As observed, the context of the acts of contempt was the Jane Doe proceedings, which are civil rather than criminal.

13. [33]

    The reason behind the commission of the conduct the subject of count 1 is obscure. It seems that the contemnor objected to the Jane Doe matter being mentioned before the Registrar and his abusive tirade may have been intended to cause the Registrar to remove the matter before a judge of the Court. If so, his contempt would represent an attempt to manipulate the process of the Court, aggravating its seriousness. I cannot however, be satisfied to the criminal standard that such was his motivation.

14. [34]

    The most that can be said is that each act of contempt occurred against a background of the contemnor’s perception of himself as a person fighting against a legal system he believes to be populated by judicial officers who are or may be corrupt, and who are or may be “paedophiles”.

15. [35]

    I am prepared to accept that the contemnor’s beliefs in that regard are honestly held, no matter how deluded, and that he feels compelled to speak out against a system he believes to be flawed.

16. [36]

    However, the contemnor himself acknowledged before me that he is unaware of any child who has made an allegation of having been assaulted at the hands of any judicial officer whom he has named as a “confirmed paedophile” or a “suspected paedophile”. Further, he has no information to substantiate his allegations of judicial corruption. The only basis upon which the contemnor asserts corruption and paedophilia appears to be that individual judicial officers have made decisions or given judgments with which the contemnor does not agree. In circumstances such as these the persistence of the contemnor’s belief in the righteousness of his cause is demonstrative of not just a profound lack of insight, but of a dangerous delusion.

17. [37]

    There is no evidence that the contemnor has received any direct benefit from his contempt. I am satisfied, however, that he has benefitted from his contempt nevertheless. The contemnor’s conduct has given him a platform against which to solicit financial reward in recognition of his acts of contempt of court, and it has given him – at least in his own eyes – significance and status as a self-perceived defender of children and the community.

18. [38]

    As Harrison J said when sentencing the contemnor for contempt of court in Doe v Dowling [2017] NSWSC 1037, at [28] – [29],

19. [39]

    On the contemnor’s website, wherein he published the suppressed material, these prominent calls for donations can be seen adjacent to the publication of material the subject of the non-publication orders, including the links to a recording made (probably illegally) by him of his conduct on 3 February 2017.

20. [40]

    Not only has there been no acknowledgment of wrongdoing from the contemnor, he appears to take pride in what he has done.

21. [41]

    Rather than contrition, the contemnor has compounded his contempt, by maintaining the publication of the offending material on his web-site, including the link to his recording of 3 February 2017. That is so despite the finding of this Court against him on 3 August 2017 (by which the extent of his wrongdoing should have been made clear to the contemnor), and despite receiving correspondence from the Crown Solicitor’s Office asking him to take the material down.

22. [42]

    Further, there is evidence tendered by the Prothonotary that establishes that the contemnor has published additional material on his website, on or about 15 April 2017, which again breaches the orders of Beech-Jones J, together with related material in breach of non-publication orders made by Adamson J on 6 April 2017.

23. [43]

    Although the judgment of the Court of 3 August 2017 was restricted as caught by the non-publication orders made by Beech-Jones J, the contemnor has also published the judgment on his website, again knowingly breaching the Court’s orders.

24. [44]

    This wilful defiance and refusal to be bound by court orders demonstrates the continuing nature of the contemnor’s disobedience to court orders, and his determination to flout the authority of the Court.

25. [45]

    The contemnor has twice before been found guilty of contempt of the Supreme Court.

26. [46]

    On 22 July 2014 the contemnor was found guilty of contempt, in that he published on his website and via a Twitter account information which was the subject of a suppression order: Munsie v Dowling [2014] NSWSC 962. Sentence was imposed on 31 July 2014 by Nicholas AJ, with the contemnor ordered to pay a fine in the sum of $2000, together with the plaintiff’s costs on an indemnity basis: Munsie v Shane Dowling (No 2) [2014] NSWSC 1042.

27. [47]

    When sentencing the contemnor Nicholas AJ said, at [16] – [18],

28. [48]

    The contemnor boasted to this Court in his exhibited case that he has not paid either the fine or the costs awarded against him.

29. [49]

    The second conviction for contempt is that to which I have already referred, being the finding of Harrison J of 15 March 2017: Doe v Dowling [2017] NSWSC 202. The contemnor published information the subject of suppression orders made by Campbell J, and did so intentionally, wilfully, and deliberately. Indeed, Harrison J concluded that the contemnor “rejoiced in his own defiance of the orders” (at [57]).

30. [50]

    On 10 August 2017 a sentence of imprisonment for 4 months was imposed upon the contemnor, to date from that date, expiring on 9 December 2017.

31. [51]

    The contemnor has no other criminal convictions recorded against him.

32. [52]

    I referred earlier to the decision of Director of Public Prosecutions v John Fairfax & Sons Ltd. In that case Kirby P referred to the need to ensure that contemptuous conduct “is emphatically denounced and effectively deterred”.

33. [53]

    There is a strong need in this case for a sentence which properly reflects the principles of both general and specific deterrence.

34. [54]

    For the rule of law to be maintained it is critical that others who might be tempted to disregard the orders of a court are deterred from such conduct, by the prospect of a stern sentence awaiting any offender. Others must see that the courts will take firm steps to protect the administration of justice, and deal sternly with those who would seek to frustrate it.

35. [55]

    Having regard to the contemnor’s antecedents, and his self-proclaimed right to disobey any court order he does not regard as valid, the sentence to be imposed upon him must import a strong element of specific deterrence.

36. [56]

    The contemnor clearly believes that the law does not apply to him: he must be deterred from putting that belief into action again in the future, to the prejudice of the administration of the law, and the community that the law protects.

37. [57]

    For the same reasons “emphatic denunciation” is required. The contemnor’s conduct must be strongly condemned; only a stern sentence imposed upon him can serve that end.

The Subjective Case

1. [58]

   Although the contemnor has appeared before the Court in relation to these proceedings over an extended period, and had the assistance of legal representatives at least for a time, there is very little information available to the Court about his personal circumstances.

2. [59]

   In his voluminous documentary case the contemnor chose to tender material that was largely irrelevant to sentence, and which principally sought to re-agitate the question of his guilt of the offences.

3. [60]

   The contemnor provided a number of decisions (part of Ex. 1 on sentence) which he relied upon to show that the verdict entered against him by Harrison J for contempt is “unstable”, and will not survive the appeal against conviction that the contemnor proposes at some stage to file. Other decisions provided by him go to, he asserts, the incorrectness of the judgment of this Court of 3 August 2017.

4. [61]

   The balance of the contemnor’s case went to suggest the value of the role he sees himself performing, in bringing a corrupt and criminal judiciary to account. The contemnor tendered recordings of himself describing the role as he sees it of his website; and commenting on the decision of McCallum J in Capilano Honey. A third recording, from 2009, was of a person who claimed to be an English barrister, who reviewed the contemnor’s self-published book, Love Letters from the Bar Table. This material is of limited relevance and little weight.

5. [62]

   As to his own circumstances, the contemnor deposed that he is 50 years of age. He described himself as a “journalist”, although he conceded in cross-examination that he “just put that down as an occupation because it is relevant to the proceedings […] and I started doing that when I had a defamation proceedings instituted against me” (TOS 36:10).

6. [63]

   At the time when he adopted “journalist” as his claimed occupation the contemnor was in fact working as an operator in a call centre for a Federal Government agency. He has no qualifications as a journalist, and has never had an article of his published by any media outlet, other than his own website. He has never been employed as a journalist.

7. [64]

   The contemnor lost his employment as a call centre operator when he was gaoled in August last year. He also lost the tenancy of the unit in which he had lived for the previous ten years. The contemnor now resides in a boarding house. He is not currently employed, but does undertake some voluntary work with St Vincent de Paul, in a clothing and general sales outlet, where he restocks shelves and the like.

8. [65]

   The contemnor appears to have little community support locally. His family are in Queensland and his contact with them is ordinarily limited to telephone calls. The contemnor said in evidence that, when he was incarcerated, he was not troubled by the lack of local support, because he did not wish to have visitors, and was able to maintain his usual telephone contact with family.

9. [66]

   Apart from a passing reference from the contemnor to investigations being presently carried out to determine if he has a food allergy, nothing is known of the contemnor’s health. There is no evidence to suggest that the discomfit that has led to tests for food allergies is in any way serious; indeed, the contemnor suggested that he only chose to explore the possibility because it may give him access to free soy milk in custody.

10. [67]

    Whilst there must be, at least, a possibility that the contemnor suffers from a mental disorder, given his fixed obsession with what he believes to be judicial corruption, there is no evidence of it, and I must set that matter aside.

11. [68]

    What is known of the contemnor’s circumstances comes largely from a Pre-Sentence Report (“PSR”) and an updated PSR ordered by the Court.

12. [69]

    In the first report of 18 September 2017 the author reported interviewing the contemnor when he was in custody. He was reported to be compliant with correctional centre routine, and he had not incurred any institutional offences.

13. [70]

    He was noted to be one of four siblings. He grew up under his mother’s care, after his father left the family home when he was aged about 2 years. He remains close to his mother and siblings.

14. [71]

    The contemnor completed secondary schooling and, at age 23, commenced university studying Economics. He did not complete his degree course, finding that he enjoyed only the social aspects of university life. The contemnor commenced but did not complete a TAFE course in accounting, and joined the Armed Forces but left after a year.

15. [72]

    The contemnor told the author of the PSR that he had once been involved in an intimate relationship of two years duration, but it ended because his focus was on achieving his goals, something not consistent with a relationship.

16. [73]

    As to the offences, the contemnor said he believed his conduct was lawful and his motivation “honourable”. He did, however, express an intention to comply with court orders in future.

17. [74]

    That assertion is at odds with much of the contemnor’s evidence to this Court, and with his conduct in maintaining and adding offending material to his website subsequent to being found guilty of these offences.

18. [75]

    The updated PSR of 15 March 2018 recorded that the contemnor’s circumstances were largely unchanged since the previous report. He was reported as living in a boarding house and being in receipt of social welfare, whilst “working on his webpage”.

19. [76]

    The author of the updated report noted that the contemnor’s interest in judicial corruption began in 2006 after a ruling in an unfair dismissal case was adverse to him. When he could not interest mainstream media outlets in his story, he took to “blogging”. The contemnor described himself as “taking a stand” against “perceived injustices, corruption, and systemic paedophilia within the judicial sphere”. The author thought his views were both “entrenched” and “aggrandised”, and reported the contemnor’s intention to continue his activism. The difference in his attitude to that expressed in September 2017 was noted.

Other Matters Relevant to Sentence

1. [77]

   On all of the evidence before the Court I am unable to conclude other than that the contemnor, as an unrepentant self-described “activist” has very limited prospects of rehabilitation. He continues to defend his right to obey or not any court order as he pleases, by reference to whether or not he considers the order valid. In light of that, I cannot accept his assertion before the Court, or to the author of the 2017 PSR, that he will obey court orders in the future.

2. [78]

   In asserting to be “non-existent” the possibility that he would re-offend, the contemnor made it plain that his assertion was based on a belief that he was entitled to say and do whatever he wished. He said (at TOC 64:23 - 30):

3. [79]

   The contemnor is a zealot, and one who is legally uninformed, and factually deluded. There is a very real prospect that he will continue his campaign of defiance of court orders, and endeavouring to undermine the authority of the courts.

4. [80]

   As earlier noted, there has been a delay of over a year between the commission of the offences and imposition of sentence. None of the delay is attributable to the Prothonotary, or to the Court.

5. [81]

   There is no evidence to point to the delay as having had an adverse impact upon the contemnor; he appears to have continued on with his activities undisturbed by the unresolved proceedings. There is no basis to conclude that any amelioration of sentence is required on this basis.

6. [82]

   The contemnor is to be sentenced for three offences and regard must be had to the principle of totality. Although the criminality of the three offences is separate, and there is no strong basis upon which to allow a degree of concurrency, there will be some concurrency of sentence to reflect the totality principle.

7. [83]

   In all of the circumstances I am satisfied that no penalty other than imprisonment is appropriate. No other sentence will meet the purposes of sentence set out in s 3A of the Crimes (Sentencing Procedure) Act.

8. [84]

   I have concluded that an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act is appropriate in all of the circumstances. There is no basis upon which to make a finding of special circumstances, although any rounding of sentence in calculating the ordinary statutory ratio will be in the contemnor’s favour.

9. [85]

   I make the following orders:

   1. (1)

      Shane Francis Dowling is convicted of three counts of contempt of the Supreme Court of NSW.

   2. (2)

      Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 he is sentenced to a term of 18 months imprisonment, to date from 22 August 2018 and expiring on 21 February 2020. I fix a non-parole period of 13 months, expiring on 21 September 2019.

   3. (3)

      The indicative sentences are: