Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym)

1. [1]

   The contemnor, Mr Patrick, is to be punished for three charges of contempt arising out of his refusal to answer questions as a witness in a murder trial. He is a Wiradjuri man currently serving a lengthy sentence for murder. On 23 November 2022, Campbell J made non publication orders in relation to his identity. I propose to refer to him in these reasons as “the contemnor”.

2. [2]

   By summons filed on 23 November 2022 the Prothonotary of the Supreme Court of NSW (the Prothonotary) sought the following orders:

   1. (1)

      A declaration that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 27 January 2022, the contemnor, when called as a witness in proceedings between the Crown and the co-offender, did wilfully refuse to continue giving evidence, thereby interfering with the administration of justice (the first offence);

   2. (2)

      A declaration that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 27 January 2022, the contemnor, when called as a witness in proceedings between the Crown and the co-offender did wilfully conduct himself in a manner of extreme disrespect for the authority of the court by using foul and abusive language and disobeying a judicial direction to sit back down in the witness box, thereby interfering with the administration of justice (the second offence);

   3. (3)

      A declaration that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 31 January 2022, the contemnor, when called as a witness in proceedings between the Crown and co-offender, did wilfully refuse to continue giving evidence, thereby interfering with the administration of justice (the third offence);

   4. (4)

      An order that the contemnor be punished or otherwise dealt with for such contempt of court;

   5. (5)

      An order that the contemnor pay the plaintiff’s costs of the proceedings; and

   6. (6)

      Any such order that the court deems fit.

3. [3]

   The matter was listed for hearing on penalty before me on 3 August 2023. At the conclusion of the hearing, the parties agreed that I should defer my final decision on penalty until such time that the contemnor’s application for leave to appeal to the Court of Criminal Appeal (CCA) against his sentence for murder (and two firearms offences) was finalised. That application was heard by the CCA on 28 April 2023 and was reserved.

4. [4]

   On 16 August 2023, the CCA upheld the contemnor’s appeal and he was re-sentenced to imprisonment for 21 years and 9 months. That sentence comprised a non-parole period of 16 years and 3 months to commence on 5 October 2016 and a balance of term of 5 years and 6 months: Decision restricted [2023] NSWCCA 198. The applicant’s non-parole period will now expire on 4 January 2033. Clearly, any penalty I impose must have regard to the lengthy sentence he is presently serving.

The background

1. [5]

   On 11 December 2017, the contemnor pleaded guilty to murder in the Local Court and agreed to give evidence against his co-offender. He provided a statement to police around 25 June 2018. On 3 August 2018, he was sentenced by Schmidt J for the offences of murder and two counts of use or supply a stolen firearm or firearm part. His sentence was reduced not only for his early plea of guilty but also for his offer of assistance to authorities by giving evidence against his co-offender.

2. [6]

   The contemnor’s co-offender pleaded not guilty and proceeded to a trial before Schmidt J and a jury on the charge of murder (the first trial). The contemnor gave evidence for the Crown and was cross-examined from 19 November to 22 November 2018. The co-offender was found guilty and convicted. In November 2020, that conviction was quashed by the CCA and a new trial was ordered (the second trial): Decision restricted [2020] NSWCCA 284.

The facts of the contempt

1. [7]

   The second trial commenced before R A Hulme J in January 2022 and a jury was empanelled on 19 January 2022. Prior to the commencement of the trial, on 12 January 2022, the Crown prosecutor informed R A Hulme J that he proposed to tender a copy of the contemnor’s evidence at the first trial (under the since repealed s 362 of the Criminal Procedure Act 1986 (NSW)). R A Hulme J allowed that course but, on defence application, permitted the defence to cross-examine the contemnor again.

2. [8]

   The contemnor was called to give evidence on 27 January 2022. Not long into that cross-examination (by Mr Ron Druells of counsel), the following exchange occurred (in the context of putting to the contemnor he did not feel bad implicating his co-offenders):

3. [9]

   The contemnor stood up during this exchange. It is open to infer that he attempted to leave the witness box but, in any event, he was stopped and accompanied from the courtroom by Correctional Officers. The incident was captured by closed circuit television (CCTV) without sound. The footage was played in court during the penalty hearing, and I am satisfied that it is consistent with the agreed facts in this matter.

4. [10]

   On 31 January 2022, the contemnor appeared via AVL for the purpose of completing his evidence. In the absence of the jury, the following exchange occurred:

5. [11]

   On 16 February 2022, the contemnor appeared before RA Hulme J via AVL and confirmed that he did not want to seek legal advice. His Honour made an order pursuant to Part 55 r 11(1) of the Supreme Court Rules 1970 (NSW) confirming that it appears that the contemnor is guilty of contempt. The matter was then referred to the Prothonotary to commence proceedings.

6. [12]

   The contemnor entered pleas of guilty to all three charges on 20 April 2023.

What happened in the trial?

1. [13]

   On 16 February 2022, the jury in the second trial was unable to reach a verdict in respect of the guilt of the co-offender and was discharged.

2. [14]

   A third trial of the co-offender took place from 22 August 2022 to 9 September 2022 by judge-alone before Ierace J. On this occasion, the Crown did not call the contemnor as a witness; instead, recordings of his evidence at the first and second trial were tendered. In fact, recordings of all of the witnesses, except the officer in charge, were admitted and played. On 26 September 2022, Ierace J delivered a judgment in which he found the co-offender guilty of the murder of the deceased.

Proceedings on penalty

1. [15]

   At the hearing on penalty, Dr David Kell SC appeared with Ms Courtney Raad for the Prothonotary and Mr Paul Coady of counsel appeared for the contemnor. Both parties provided helpful written submissions. A court book was tendered comprising the summons, suppression and non-publication orders made by Campbell J, the variation of those orders, signed agreed facts, the CCTV footage and transcript, the contemnor’s updated criminal history and the decision of Ierace J. The contemnor relied on the report of psychologist Dr Amanda White, Corrective Service Intelligence reports, the statement of Detective Sergeant Christopher Reay dated 18 November 2018 and selected Corrective Services and Justice Health documents.

Relevant principles

1. [16]

   The power of the Supreme Court to impose a penalty for contempt derives from its inherent jurisdiction to safeguard the administration of justice and uphold the rule of law. In addition, Part 55, rule 13 of the Supreme Court Rules provides as follows:

2. [17]

   An offence of contempt is a common law offence. This means that the maximum penalty is at large. The Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to contempt matters: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 (“Dowling”) at [49] per Basten JA (Meagher JA agreeing). Although, the statutory considerations contained in provisions such as ss 3A, 5(1) and s 21A of the Crimes (Sentencing Procedure Act) no longer apply when a punishment is imposed for contempt, those factors generally reflect common law principles, which remain applicable. The forms of punishment that may be imposed are those specified in Part 55 rule 13 of the Supreme Court Rules.

3. [18]

   Kirby P (as his Honour then was) outlined the key principles applied by the court in imposing a penalty for contempt of court in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314:

Objective seriousness

1. [19]

   The Prothonotary submitted that the contemnor’s conduct comprising each offence represents a serious contempt of court. The contemnor submitted that the fact that he had already given evidence in the first trial reduces the seriousness of the first and third offences, which would usually be regarded as serious. It was submitted that the second offence is of lesser seriousness, although it was disrespectful, unsettling to the judicial process and unacceptable.

2. [20]

   All three offences each involve a contempt in the face of the court as they comprise an act which has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings: Witham v Holloway (1995) 183 CLR 525 at 538-539; [1995] HCA 3, per McHugh J. The first and third offences involve a wilful refusal to give evidence which is regarded as a serious contempt that is apt to undermine the rule of law and interfere with the administration of justice. As Kirby P said in Registrar of the Court of Appeal v Raad (unreported, NSW Court of Appeal, NSW, No 40585 of 1991, 9 June 1992) at 14:

3. [21]

   It was common ground that I would assess the objective seriousness of the contempts involving the refusal to answer questions having regard to the (relevant) matters enumerated by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. That case involved a contemnor who refused to give evidence at the Royal Commission into the NSW Police Service. Dunford J identified the matters usually taken into account in assessing the proper punishment for contempt as follows (at 185):

   1. (1)

      The seriousness of the contempt proved;

   2. (2)

      Whether the contemnor was aware of the consequences to himself or herself of what he or she did;

   3. (3)

      The actual consequences of the contempt on the relevant trial or inquiry;

   4. (4)

      Whether the contempt was committed in the context of serious crime;

   5. (5)

      The reason for the contempt;

   6. (6)

      Whether the contemnor has received any benefit by indicating an intention to give evidence;

   7. (7)

      Whether there has been any apology or public expression of contrition;

   8. (8)

      The character and antecedents of the contemnor;

   9. (9)

      General and personal deterrence; and

   10. (10)

       The need for denunciation of the contempt.

4. [22]

   I will consider these factors, where applicable, in turn.

5. [23]

   The contemnor was clearly aware of the consequences of his actions, as his exchange with R A Hulme J extracted above at [10] makes clear. His Honour warned the contemnor that he would be charged with contempt of court if he refused to answer questions. I am satisfied that the contemnor was aware that he may receive a further custodial sentence before the judicial warning in any event given that he told R A Hulme J that, “if I don’t do this, I am going to get more time.”

6. [24]

   A recording of the contemnor’s evidence was played to the jury in the second trial. The significance of the fact that the defence was denied the opportunity to cross-examine him at the second trial is difficult to assess as the jury had to be discharged as they were unable to reach a verdict.

7. [25]

   This is not a case where the Prothonotary could submit that the contemnor’s conduct led to an acquittal. On the contrary, his evidence given at the first trial (and his short evidence at the second trial) was tendered at the third trial and led to a conviction of his co-offender.

8. [26]

   Although I accept the Prothonotary’s submission that the conduct deprived the court of the opportunity to hear potentially important evidence, I am unable to conclude that there were any actual adverse consequences to the result following the contemnor’s conduct. Similarly, although I also accept the Prothonotary’s submission that the second offence disrupted the trial and its gravity, that is as high as any assessment of actual consequences goes.

9. [27]

   I am satisfied that the fact that the contemnor’s evidence still played a role in a conviction sets the matter apart from other similar cases where no evidence was given by the contemnor at all.

10. [28]

    The contempt occurred in the context of the co-offender’s murder trial, which is a serious crime punishable by life imprisonment.

11. [29]

    The contemnor claims that he did not give evidence due to fears for his safety. There was material put before the court which satisfies me that this claim went beyond a general fear in the custodial environment of being labelled a “dog”.

12. [30]

    The contemnor told Dr Amanda White, a Forensic Psychologist and Clinical Neuropsychologist who interviewed him on 27 June 2023, that after giving evidence in 2018 he received death threats, was stabbed and assaulted on several occasions, experienced daily verbal abuse and was called names such as “rat” and “dog”. He reported that other inmates threatened to harm his family and kidnap and rape his children. He did not understand why he had to give evidence again given that the evidence he provided in 2018 was to be used again.

13. [31]

    Justice Health records support the contemnor’s claim. The contemnor had a nasal bone fracture and nosebleed on 22 July 2018 after an alleged assault in custody by another inmate. He was placed in Special Management Area Placement (SMAP) and a Protection Non Association Area (PRNA). He told staff a hit had been placed on him for a drug debt. He was reportedly assaulted again in December 2021. He expressed fears for his safety in September 2020, February 2021, and in April, November and December 2022. Records also show repeat incidents of self-harm, which he explained was because of the statement and evidence provided in the 2018 trial of his co-accused, missing his family and the “dynamics” in his pod. He again reported issues relating to money owed to him in December 2022.

14. [32]

    The Corrective Services NSW notes record the contemnor expressing fear on a number of occasions. Significantly, the notes record that the co-offender was sending letters requesting that people harm the contemnor and that she was spreading his name as a “dog”. One such report indicated that the contemnor was likely at risk from SMAP inmates as the co-offender had also contacted them. A letter from the co-offender to another inmate dated 28 April 2019 stated the following:

15. [33]

    When the contemnor was served with a subpoena to give evidence for the second time in January 2022, he indicated that he did not intend to attend the trial as he had been stabbed, assaulted and moved several times in custody after giving evidence in the first trial. His solicitor told the court on 12 January 2022 at a pre-trial hearing that the contemnor gave instructions that he would refuse to give evidence because of his safety as he had been assaulted and stabbed in custody.

16. [34]

    The Prothonotary accepted that the contemnor had genuine concern for his and his family’s safety if he gave evidence for the prosecution but submitted that courts have emphasised that matters such as fear of safety may explain but not excuse contempt: In the Matter of Steven Smith (No.2) [2015] NSWSC 1141 at [73].

17. [35]

    In Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495, Bellew J emphasised the importance of general deterrence even in cases where the contemnor refused to give evidence because of matters going to their personal safety. His Honour said at [49]-[50]:

18. [36]

    Johnson J also highlighted the importance of general deterrence in contempt matters in in R v Bilal Razzak [2006] NSWSC 1366 at [78]:

19. [37]

    In relation to the second offence, Wood CJ at CL’s comments in Prothonotary v Wilson [1999] NSWSC 1148 at [21] are relevant:

20. [38]

    I am satisfied on the balance of probabilities that there was a threat that was clearly communicated to the contemnor, and it was in fact effected by way of physical violence. Whilst the need for general deterrence is a relevant factor, the fact that the contempt was motivated by fear of harm had he given evidence remains relevant as well: Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964 at [64]; Wood v Galea (1997) 92 A Crim R 287 at 291.

21. [39]

    In relation to the first and third offences, the contemnor received a discount of 13% for the assistance on his sentence for murder and two counts of possessing a stolen firearm because he agreed to give evidence. The CCA was satisfied in his recent appeal that the applicant fulfilled what he promised to do by giving evidence at the first trial, which was replayed at the second and third trials: at [95].

22. [40]

    The contemnor submitted that he fulfilled his undertaking by providing a statement to police and giving evidence in the first trial.

23. [41]

    In assessing the objective seriousness of the contempts involving the refusal to answer questions, I have had regard to some unusual features of this case. In particular, the contemnor did in fact give evidence at the first trial; it is in relation to his refusal to do so again at a second trial that he is to be punished. I note in that regard that he did not stand to receive any further benefit for doing so.

24. [42]

    Another unusual feature of the conduct is that his recorded evidence at the first trial ultimately secured a conviction in any event. Nor was the contemnor’s fear about giving evidence a speculative one; there was evidence before the court that he was in fact assaulted for being a witness.

25. [43]

    I have considered the contemnor’s submission that the fact that he was motivated by fear is relevant to reduce the objective seriousness of the offending and to reduce his moral culpability: Paterson v R [2021] NSWCCA 273; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156. I propose to have regard to this aspect as being relevant to his motive which forms part of my assessment of the objective seriousness. It was further submitted on behalf of the contemnor that the objective seriousness of this conduct is further reduced by the contemnor’s mental condition and childhood of substantial deprivation. I propose to have regard to those matters when assessing his moral culpability below.

26. [44]

    Despite the seriousness with which the courts treat a refusal to answer questions, I consider those two charges (the first and third offences) to be at the lower end of seriousness for that sort of contempt in the unusual circumstances of this case.

27. [45]

    As for the contemnor’s conduct in being verbally abusive to the judge (the second offence), I would consider that to be a moderately serious example of such conduct given that the court’s authority was undermined but it was less serious than the refusals to answer questions.

Subjective matters

1. [46]

   The contemnor grew up in Lithgow NSW. He reported to Dr White a background of disadvantage including parental drug and alcohol use and exposure to domestic violence at a young age. He has experienced longstanding depression, anxiety and self-harming behaviour and has used drugs and alcohol since the age of 12. He told Dr White that he has Attention Deficit Hyperactive Disorder (ADHD), mild Tourette’s syndrome and Oppositional Defiant Disorder (ODD) and was prescribed some medication as a child. He described his family as being supportive at present, including his parents, brother and sister. He has regular phone contact with his three children, who currently live with his father.

2. [47]

   The contemnor has a lengthy criminal history starting in the Childrens Court when he was 13 years old. He has been subject to community service orders, probation, bonds and custodial sentences. Many of his offences are not serious and include using offensive language near a school, riding a motorbike without an approved helmet, smoking and drinking on public transport. He has also been convicted of multiple property offences, including larceny, demanding property with menaces, stealing from the person, breaking and entering property and taking a car and boat without the owner’s consent. He has also been convicted of violent offences of common assault and damaging property.

3. [48]

   The contemnor reported multiple suicide attempts since being in custody and at times daily suicidal ideation. Dr White noted:

4. [49]

   Dr White also flagged the possibility that the contemnor might have foetal alcohol spectrum disorder (FASD) as follows:

5. [50]

   On the evidence before the court, the contemnor accepted that I cannot make a finding that he suffers from FASD nor that it was causative of this conduct.

6. [51]

   The contemnor entered a plea of guilty on 20 April 2023 at the earliest opportunity. It was common ground at the hearing that, by analogy to the Crimes (Sentencing Procedure Act), a discount of up to 25% for the utilitarian value of the plea would be appropriate. Although the contemnor has not apologised to the court or expressed remorse or contrition to Dr White, I am satisfied that the fact that he pleaded guilty at the first opportunity is indicative of some contrition

7. [52]

   The contemnor relied on the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy). In Bugmy, the High Court considered the relevance of an offender’s deprived background to offending as an adult. On that issue, the court observed the following at [44] (footnote omitted):

8. [53]

   The contemnor also relied upon his mental health issues. As Beech-Jones CJ at CL observed in Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407 at [91], the principles applied to sentencing mentally ill offenders are applicable to the imposition of punishments for contempt. The relevant principles were summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194 at [177] as follows:

9. [54]

   It was submitted that a constellation of factors point to the contemnor’s heightened impulsivity, fear response and inability to cope with stress. It was submitted that the court would be satisfied on the balance of probabilities that these factors lower the contemnor’s moral culpability.

10. [55]

    Although it is well established that the sentencing principles of general deterrence and denunciation are important in contempt cases, I am satisfied that they play a lesser role in this case given the contemnor’s subjective background. Given the uncontradicted expert evidence before me, I am satisfied that the applicants’ moral culpability is reduced on account of both his deprived childhood and mental illness.

Comparable cases

1. [56]

   The Prothonotary attached a schedule summarising the penalties imposed in 32 other cases in which a contemnor refused to give evidence. This schedule was an updated version of the schedule before the court in Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183 (“Tran”). Having considered that schedule, I am satisfied that the cases are all different and none of them concerned a contemnor who had willingly given evidence once but baulked at having to do so again at a second trial.

2. [57]

   No two cases can ever be seen as truly comparable. Further, although a range of sentences can be a “yardstick” against which to examine any proposed sentence, it does not fix the boundaries within which a judge must sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 54.

3. [58]

   Despite this, I note that, with the exception of three cases (Ireland AJ v Russell [2001] NSWSC 468, Prothonotary of the Supreme Court of NSW v Jalalabaddi [2008] NSWSC 811 and Prothonotary of the Supreme Court of NSW v Ceren [2016] NSWSC 1187), a sentence of imprisonment has been imposed in every contempt matter since 2000. The length of the sentences imposed varies from 21 days imprisonment to 4 years and 6 months imprisonment. In Tran, a case involving the refusal to give evidence in a criminal trial, Buddin J observed at [37] that “it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind”.

Conclusion

1. [59]

   It was common ground that non-custodial options are unavailable given that the contemnor is already serving a lengthy sentence. I am satisfied that a short custodial sentence is warranted in any event. Although I am unable to accept the contemnor’s submission that I would impose sentences to be served entirely concurrently with the sentence he is currently serving, I propose to allow a significant degree of concurrence in the interests of totality.

2. [60]

   As with any sentencing exercise, I have identified and considered all factors relevant to the sentence and, ultimately, made a value judgment as to what is the appropriate sentence given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; confirmed by the court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

3. [61]

   As there are three contempts, the totality principle is to be applied in fixing the sentence in this matter. I am required to arrive at a sentence for each contempt, fix a total sentence and then review it to determine whether it is “just and appropriate”: Mill v The Queen (1988) 166 CLR 59 at 63; [1998] HCA 70.

4. [62]

   In Council of the New South Wales Bar Association v Rollinson Beech-Jones CJ at CL observed at [94] that although the Court of Appeal in Dowling fixed one sentence for all of the contempts, it did not appear to proscribe such a course. I propose to adopt the course favoured by Beech-Jones CJ at CL in order to enhance transparency. I will impose one sentence but indicate the individual periods I consider appropriate for each contempt. I am satisfied that the total period of custody reflects the overall culpability of the contemnor’s conduct: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27].

5. [63]

   After applying a discount of 25% in relation to each of the three offences for the early pleas of guilty, I would propose punishment of 8 months comprised of 4 and a half months for each of the two instances of refusing to answer questions and 2 months for the third charge.

6. [64]

   The orders of the court are:

   1. (1)

      The court declares that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 27 January 2022, when called as a witness in proceedings between the Crown and the co-offender, he did wilfully refuse to continue giving evidence, thereby interfering with the administration of justice.

   2. (2)

      The court declares that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 27 January 2022, when called as a witness in proceedings between the Crown and the co-offender, he did wilfully conduct himself in a manner of extreme disrespect for the authority of the court by using foul and abusive language and disobeying a judicial direction to sit back down in the witness box, thereby interfering with the administration of justice.

   3. (3)

      The court declares that the contemnor is guilty of contempt of the Supreme Court of New South Wales in that, on 31 January 2022, when called as a witness in proceedings between the Crown and co-offender, he did wilfully refuse to continue giving evidence, thereby interfering with the administration of justice.

   4. (4)

      The contemnor is committed to a correctional centre for a period of 8 months to commence on 5 July 2032 and expire on 4 March 2033.