Prothonotary of the Supreme Court of NSW v A

By a summons filed on 3 April 2014 the Prothonotary of the Supreme Court of NSW (“the Prothonotary”) seeks the following orders:

The summons was supported by an affidavit of Brett Thomson of 28 April 2014 and Exh. BT-1 to that affidavit. I was informed at the conclusion of the hearing that order (3) was no longer sought, and was invited to make no order as to costs.

The contemnor has entered a plea of guilty to the charge of contempt and accordingly, the matter comes before me for the determination of penalty. At the hearing, senior counsel sought a non-publication order in respect of the name of the contemnor, and any other evidence from which he might be identified. That order was not opposed and was made. I have also anonymised the name of the contemnor for the purposes of this judgment.

The facts of the matter are not in dispute. The following summary is drawn, in part, from the written submissions of the Crown Advocate who appeared on behalf of the Prothonotary.

Shortly after midnight on [redacted] thirteen rounds of ammunition were fired at a unit block in western Sydney, penetrating two units in the block in which persons were present. Four offenders were identified in connection with the shooting, one of whom was the contemnor. Specifically, the contemnor was identified as the person who had driven the vehicle containing the other offenders to and from the scene. One of those other offenders was a minor to whom I shall refer as “L”.

On the evening of [redacted], the contemnor was arrested and charged with an offence of firing a firearm at a dwelling house with reckless disregard for safety, contrary to s. 93GA(1) of the Crimes Act 1900 (NSW).

The contemnor pleaded guilty to the offence in [6] and was committed for sentence to the Parramatta District Court. On [redacted] he appeared before his Honour Judge Lerve and asked that two additional matters on a Form 1 be taken into account on sentence. At the conclusion of the hearing, his Honour sentenced the contemnor to imprisonment for a period of 21 months, which he fully suspended pursuant to s. 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) upon the contemnor entering into a bond. In the course of his remarks on sentence, his Honour noted the assistance which the contemnor had given, and had undertaken to give, to the authorities, which included an undertaking to give evidence against L. His Honour also noted the concession of the Crown as to the discount to which the contemnor was entitled on account of that assistance.

In late 2013, the contemnor was issued with a subpoena requiring him to attend the trial of L and give evidence for the Crown. L’s trial was due to commence at the Parramatta District Court on 17 February 2014. When the matter came before Acting Judge Phegan on that day, the contemnor failed to appear, necessitating an application by the Crown for an adjournment. In making that application, the Crown Prosecutor said:

His Honour issued a warrant for the contemnor’s arrest and the matter was adjourned until the following day, 18 February 2014. When the contemnor had still not been located on that day, the Crown made an application to vacate L’s trial. The proceedings were adjourned until 24 February 2014. On the morning of 21 February the contemnor was brought before Acting Judge Phegan following the execution of the warrant. On that occasion he was represented by Mr Guirguis, solicitor. In light of the difficulties which had been encountered in locating the contemnor, his Honour ordered that he remain in custody until the commencement of L’s trial.

When L’s trial came before Acting Judge Phegan on 24 February 2014 the Crown called the contemnor to give evidence. The transcript records the following (commencing at T18 L1):

His Honour then made arrangements for the contemnor to obtain legal advice. The Crown Prosecutor again confirmed (at T33 L28) that the Crown case was entirely dependent upon the evidence of the contemnor.

Upon the resumption of the proceedings on the afternoon of 24 February 2014, the contemnor confirmed to his Honour that he had refused, and continued to refuse, to take an oath or affirmation and give evidence. The following exchange then took place (commencing at T33 L48):

Later on the same day, the following further exchange occurred (commencing at T38 L20):

There followed a discussion between his Honour and the Crown Prosecutor, following which his Honour (commencing at T39 L25) explained to the contemnor that he had the option of referring the contempt to this Court, or dealing with it himself. The contemnor confirmed that he understood that, quite apart from action being taken against him in respect of the contempt, the Court which imposed sentence upon him would now be asked to reconsider that sentence in light of his failure to adhere to the undertaking that he had given to assist the authorities. In the course of that exchange with his Honour, the contemnor indicated that he had been advised that he should give “his honest reasons why” he had refused to give evidence. His Honour thought it appropriate that the contemnor obtain legal advice before taking that step and the proceedings were adjourned until the following day.

When the matter came back before his Honour on 25 February 2014, Mr Guirguis again appeared for the contemnor and the following exchange took place (commencing at T5 L3):

Mr Guirguis then indicated to his Honour that the contemnor wished to obtain private representation in relation to the matter. The proceedings were then adjourned until 26 February at which time Mr Kahn, solicitor, appeared for the contemnor. His Honour proceeded to make an order under Part 55 Rule 11(3) of the Supreme Court Rules 1970 (NSW) (“the Rules”) which is in (inter alia) the following terms:

In a report provided pursuant to s. 203 of the District Court Act 1973 (NSW) and Part 55.11(3) of the Rules his Honour stated the following:

I have previously noted (at [8] above) that the Crown case against L was totally dependent upon the evidence of the contemnor. That view was shared by counsel for L who described the contemnor as “effectively the Crown case”. In this respect, Acting Judge Phegan made the following observations when the proceedings were before him on 26 February 2014 (commencing at T5 L25):

Addressing the position which might arise in the event that the Crown was successful in relying upon the contemnor’s induced statement in support of its case against L, his Honour said (commencing at T6 L6):

Ultimately, his Honour upheld an application by the Crown to rely on the induced statement of the contemnor in the trial of L pursuant to s. 65 of the Evidence Act 1995 (NSW). However, L’s trial was not reached on several occasions before finally coming before his Honour Judge Colefax SC for hearing, without a jury, in March 2016.

It is accepted by the Prothonotary that on or about 23 October 2014 the contemnor changed his position from that which he had adopted before Acting Judge Phegan. From that point onwards, the contemnor indicated a willingness to give evidence against L at his trial.

I have noted in [14] above that in the course of the proceedings before Acting Judge Phegan on 24 February, the contemnor made reference to wanting to explain why he had chosen to refuse to take an oath and give evidence. For obvious reasons, his Honour was reticent in permitting him to do so. However, such explanation appears in a Pre-Sentence Report which is before the Court, under the heading “Attitude to offending”. The nature of what is set out in that part of the report is such that it should not be further disclosed, other than to say that it goes to the issue of the contemnor’s personal safety. The Crown Advocate took no issue with the veracity of what the contemnor told the author of the report in that respect, and expressly accepted that it amounted to what he described as “non-exculpatory duress” or in other words, duress which, although not sufficient to provide the contemnor with a defence, remains a mitigating factor pursuant to s. 21A(3)(d) of the Sentencing Act.

On 28 January 2016 the contemnor filed an application for leave to appeal against his conviction for the offence contrary to s. 93GA(1) of the Crimes Act 1900 (NSW) for which he had been sentenced by Judge Lerve. On 18 October 2016 the Court of Criminal Appeal (Ward JA, Davies J and RS Hulme AJ) made orders (inter alia) allowing the appeal, quashing the conviction and remitting the matter to the District Court for a hearing de novo pursuant to s. 12(2) of the Criminal Appeal Act 1912 (NSW). In doing so the court found that the contemnor’s liability for the offence contrary to s. 93GA(1) to which he had pleaded guilty was (as the Crown had conceded on the appeal) unsound.

Subsequently, the contemnor appeared before her Honour Judge Norton SC in the District Court and entered a plea of guilty to an offence of being an accessory after the fact to an offence contrary to s. 93GA(1). Her Honour noted that the Crown did not take issue with the fact that the period of 73 days which the contemnor had previously spent in custody was an appropriate sentence, and proceeded to make an order under s. 10A of the Sentencing Act, convicting the contemnor but imposing no other penalty.

On [redacted] L’s trial came before Judge Colefax SC, sitting without a jury. L entered a plea of not guilty and the contemnor gave evidence for the Crown. After the contemnor had given evidence, L entered a plea of guilty to two offences in connection with the events set out in [5] above and was sentenced by his Honour. The fact that L entered a plea of guilty immediately following the contemnor’s evidence is confirmation (if any were needed) of the importance of such evidence in the Crown case against L.

On behalf of the Prothonotary, the Crown Advocate pointed out that the penalty for the common law offence of contempt is at large, and that the provisions of s. 23A of the Sentencing Act were required to be taken into account in determining an appropriate penalty.

The Crown Advocate emphasised the serious nature of an offence of contempt which is constituted by a refusal to be sworn, and/or a refusal to answer questions. He pointed out that in the present case, the contemnor was warned, on more than one occasion, of the consequences of refusing to give evidence and that he had, in the face of those warnings, maintained such refusal. It was submitted that it was significant that this occurred in circumstances where the contemnor’s evidence was critical to the Crown case against L, such that the contemnor’s refusal to give evidence in the first instance precluded L’s trial from progressing. That said, the Crown Advocate expressly accepted that from about 23 October 2014 the contemnor had indicated a willingness to give evidence for the Crown in the proceedings against L and that this amounted to the contemnor taking steps to purge his contempt.

As noted at [22] above, it was accepted on behalf of the Prothonotary that the contemnor’s explanation for taking the position that he did stemmed from justified concerns for his safety. The Crown Advocate also drew attention to the fact that in re-sentencing the contemnor on 8 November 2016, Judge Norton SC had recorded that the contemnor had apologised for his contempt.

The Crown Advocate emphasised the need for any sentence to reflect considerations of general deterrence, and denunciation of the contempt. In terms of aggravating and mitigating factors under the Sentencing Act, he accepted that there was no identified aggravating factor under s. 23A(2), but that there were a number of mitigating factors under s. 23A(3) which I have discussed more fully below.

Ultimately, the Crown Advocate submitted that it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind. However, he accepted that there were “unusual and perhaps exceptional” circumstances in the present case, such that it would be open to me to impose a sentence which did not incorporate a requirement for the contemnor to immediately serve a period of full time custody.

Senior counsel for the contemnor emphasised the circumstances which explained the reasons behind the commission of the offence. Senior counsel was quick to point out that he did not advance those matters by way of an excuse, but submitted that they served to explain the contemnor’s actions, and place them in their proper context.

Senior counsel also emphasised the somewhat unusual circumstances which led to the quashing of the contemnor’s original conviction by the Court of Criminal Appeal. He submitted that this had been productive of a significant period of delay, the blame for which could not be laid at the feet of the contemnor, and that this was a relevant matter to take into account. Senior counsel submitted that the contemnor had not been properly advised as to his legal position as to the charge which was originally found against him.

Senior counsel also emphasised that on or about 23 October 2014, the contemnor had purged his contempt and had later given evidence against L, as a consequence of which it was clear that L had changed his plea and had been convicted. He also stressed a number of other subjective factors including the contemnor’s plea of guilty, his apology to Judge Norton SC and his lack of criminal convictions (other than that arising from the events referred to in [5] above).

Senior counsel described the entirety of the circumstances of this case as “most unusual” and submitted that in all of the circumstances, the matter could appropriately be dealt with pursuant to s. 10A(1) of the Sentencing Act, by imposing a conviction with no additional penalty. Alternatively, he submitted that all of the relevant sentencing considerations could be met by the imposition of a suspended sentence.

Before dealing with the particular circumstances of the present case, it is appropriate that I make reference to some general principles applicable to sentences for offences of contempt.

In R v Razzak [2006] NSWSC 1366 Johnson J (at [39]) emphasised the serious nature of an offence of contempt of court which is constituted by a refusal to be sworn, and/or a refusal to answer questions. One of the authorities to which his Honour referred was Registrar of the Court of Appeal v Raad [1992] NSWCA 207 where Kirby P had said:

In Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 the Court (Mahoney, Priestley and Clarke JJA) observed:

The seriousness of a contempt of this kind is such that it would only be in an exceptional case that a custodial sentence would not be imposed: Principal Registrar of the Supreme Court of New South Wales v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 at [37] per Buddin J.

A number of circumstances, both objective and subjective, have been identified as being relevant to the determination of penalty in a case such as the present: Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 at 316 – 317 per Kirby P; Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185 per Dunford J. Those circumstances include:

Those matters do not, of course, constitute an exhaustive list of relevant considerations. As submitted on behalf of the Prothonotary, the provisions of s. 21A of the Sentencing Act apply to the determination of penalty: Principal Registrar of the Supreme Court (NSW) v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 at 538; [45] per Studdert J.

With these matters in mind I turn to address those relevant considerations as they apply to the circumstances of the present case.

The serious nature of a contempt constituted by circumstances such as the present has been emphasised on many occasions. A refusal to take an oath and/or to answer questions strikes at the heart of the administration of justice. The contemnor was warned by Acting Judge Phegan of the consequences he faced by taking the course that he did, and thereafter maintaining it. The contemnor did so in circumstances where, on any view, his evidence was a critical component in the Crown case against L, to the point where the Crown in fact had no case against L without such evidence. The contemnor’s refusal to take an oath or affirmation and give evidence prevented L’s trial from proceeding for a considerable period of time. Moreover, the contempt was committed in the context of the contemnor’s own serious offending, in which both he and L were involved, and in circumstances where the contemnor had received a discount on account of his promise to assist the authorities by giving evidence against L.

Whilst there are no statutory aggravating factors under s. 21A(3)(2) of the Sentencing Act, it remains the case that when all relevant factors are taken into account, the conduct of the contemnor was of significant objective gravity.

That said, there are a number of mitigating factors, both within s. 21A(3) of the Sentencing Act and otherwise. In particular, there is no dispute between the parties that:

Further, it was accepted on behalf of the Prothonotary that in taking the position that he did, the contemnor was acting under duress of a kind which, although not sufficient to exculpate him from criminal liability, is nevertheless a mitigating factor: s. 21A(3)(d). It is important to note that the veracity of the matters relied upon by the contemnor to establish that duress have been independently assessed and verified by the authorities.

Although the contemnor’s plea of guilty was formally entered before me, the Crown Advocate conceded that the contemnor had given a firm indication of a plea as far back as October of 2014. In these circumstances, the Crown Advocate categorised the plea as “not a late plea of guilty”. In the circumstances, and bearing in mind that the timing of a plea is an important consideration in assessing the discount applicable, an appropriate discount to reflect the plea is 20%: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418; [154] per Spigelman CJ.

Senior counsel for the contemnor emphasised the circumstances which resulted in the Court of Criminal Appeal quashing the contemnor’s original conviction. In the course of advancing submissions in relation to that issue, senior counsel submitted it was of some significance that the contemnor had obviously been wrongly advised as to his position in respect of that charge. However in my view, but for the fact that those various circumstances caused some delay in the finalisation of the proceedings against the contemnor, they have little relevance to the sentencing in task. In particular, such matters are largely irrelevant to the circumstances in which the offence of contempt was committed.

It must be recognised that having committed the offence, the contemnor purged his contempt about eight months later. Whilst no single factor is determinative, purging the contempt when the opportunity to do so arises is necessarily something that should be encouraged. As such, it is a strong subjective factor. At the same time, the reasons which render the present contempt serious are the same reasons which require that any sentence imposed be such as to properly reflect considerations of general deterrence and denunciation. In Razzak Johnson J explained the reasons for the necessity to take that approach (at [78]):

The importance of general deterrence is not lessened by the non-exculpatory duress to which the contemnor pointed. In Tiknius v R [2011] NSWCCA 215 Johnson J (with whom Tobias AJA and Hall J agreed) said (at [51]):

His Honour’s observations were obviously made in a context different to the present but they are nonetheless apt. As Callaway JA observed in R v Roach [2005] VSCA 162 at [15] (Ormiston and Charles JJA agreeing):

The contemnor has presented a strong subjective case characterised, in particular, by the non-exculpatory duress which related to the commission of the offence, and his purging of the contempt at a relatively short time after the offence was committed. However for the reasons I have stated, the nature of the contempt and its consequences constitute an offence of considerable objective seriousness. I was provided by the Crown Advocate with a schedule of penalties imposed in other cases of contempt although in providing that material to the Court, the Crown Advocate was certainly not suggesting that I should set out to achieve some degree of numerical equivalence with any sentence or sentences previously imposed.

Notwithstanding the contemnor’s strong subjective case, the objective seriousness of the offending and the need to impose a sentence which properly reflects considerations of general deterrence, require the imposition of a sentence of imprisonment. The submission advanced by senior counsel for the contemnor that the matter could be appropriately dealt with pursuant to s. 10A of the Sentencing Act must be rejected. The disposition of the matter in that way would completely fail to recognise those factors to which I have just referred, and would result in the imposition of a manifestly inadequate sentence.

In my view, no penalty other than a sentence of imprisonment is appropriate. Taking into account all relevant factors, including the discount to reflect the contemnors’ plea of guilty, a sentence of 12 months imprisonment should be imposed.

However I am satisfied in the circumstances that such period of imprisonment should be wholly suspended. In particular, I am satisfied that such a penalty remains significant, and one which is effective to address the various matters to which I have referred: R v Zamagias [2002] NSWCCA 17 per Howie J (Hodgson JA and Levine J agreeing) at [31] citing R v Foster [2001] NSWCCA 215 at [36] and R v JCE [2000] NSWCCA 498 at [25].

For the forgoing reasons I make the following orders: