Anderson v GPY18
[2019] FCA 954
•21 June 2019
FEDERAL COURT OF AUSTRALIA
Anderson v GPY18 [2019] FCA 954
File numbers:
WAD 605 of 2018
Judges:
BANKS-SMITH J
Date of judgment:
21 June 2019
Catchwords:
CONTEMPT OF COURT - sentencing - contempt of the Australian Criminal Intelligence Commission - contempt punishable as contempt of Federal Court - respondent in contempt by refusing to take oath or make affirmation in examination - where respondent pleaded guilty - where respondent facing lengthy term of imprisonment for other offences - fixed term of imprisonment imposed
Legislation:
Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 28, 30, 34A, 34B
Federal Court of Australia Act 1976 (Cth) s 31
Federal Court Rules 2011 (Cth) Part 42
Cases cited:
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Anderson v DKH18 [2018] FCA 1571
Anderson v XLVII [2015] FCA 19
Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949, (2002) 121 FCR 24
Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809
Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26; (2011) 205 A Crim R 386
Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366
Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277
Murray v Chief Examiner [2018] VSCA 144
Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527
R v Abell [2007] QCA 448
R v Drever [2010] SASCFC 27
Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Date of hearing:
18 June 2019
Registry:
Western Australia
Division:
General Division
National Practice Area:
Federal Crime and Related Proceedings
Category:
Catchwords
Number of paragraphs:
39
Counsel for the Applicant:
Mr AC Willinge
Solicitor for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr M Tudori
Solicitor for the Respondent:
Michael Tudori & Associates
Table of Corrections
25 June 2018
Counsel and solicitor details for applicant and respondent were inserted against the wrong party and have been amended to reflect the correct representation.
ORDERS
WAD 605 of 2018
BETWEEN:
JEFFREY PHILIP ANDERSON, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Applicant
AND:
GPY18
Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
21 JUNE 2019
THE COURT DECLARES THAT:
1. The respondent is guilty of the charge of contempt of the Australian Crime Commission (also known as the Australian Criminal Intelligence Commission) in that, being a witness appearing at an examination before an examiner on 11 September 2018 and having been required by the examiner to take the oath or make an affirmation in terms approved by the examiner, he refused to be sworn or affirmed.
THE COURT ORDERS THAT:
2. The respondent is committed to imprisonment for such contempt for a period of 6 months.
3. A warrant for the respondent's committal to prison for a period of 6 months issue.
4. The non‑publication orders made 30 January 2019 be varied so that the disclosure of the respondent's name to the proper officers of the prosecuting agencies responsible for prosecuting the existing charges against the respondent (being the charges referred to in paragraphs 10‑14 of the respondent's outline of submissions filed 17 May 2019) is permitted.
5. The non‑publication and suppression orders made 30 January 2019 otherwise remain in force.
6. The respondent pay the applicant's costs of the application to be assessed if not agreed.
7. There be liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
Background
The respondent was served with a summons to appear before an examiner appointed under the Australian Crime Commission Act 2002 (Cth) (Act) and to give evidence. The applicant is the examiner.
The respondent attended at the hearing before the examiner but refused to take an oath or affirmation. That resulted in the respondent being charged with contempt.
The statement of charges alleges that the respondent contravened s 34A(a)(i) of the Act in that having been required by the examiner to take the oath or make an affirmation in terms approved by the examiner, he refused to do so.
He pleaded guilty to that charge in this Court and it falls to me to sentence him.
At the time of the examination the applicant was in detention on remand with respect to a large number of charges (for both State and Commonwealth offences), and he remains on remand. Those charges include possession of a prohibited drug (methylamphetamine), dealing with proceeds of crime with a value exceeding $1,000,000 and possession of firearms or ammunition. Although he has since pleaded guilty to some of those charges he has not as yet been sentenced, with sentencing not expected until the latter half of 2019.
The Australian Criminal Intelligence Commission
The Australian Crime Commission is established by s 7 of the Act. Pursuant to s 7(1A) it may also be known by other names, including the Australian Criminal Intelligence Commission (ACIC). In this matter it operated as the ACIC. One of its functions is to investigate, when authorised by its Board, matters relating to 'federally relevant criminal activity': s 7A(c). By s 7C(1)(c) of the Act, one of the functions of the Board is to authorise the ACIC to undertake intelligence operations relating to such federally relevant criminal activity. By 7C(2), the Board may also determine that an investigation into matters relating to federally relevant criminal activity is a 'special operation'. Before doing so, it must consider whether ordinary police methods of investigation into the matters have been effective at understanding, disrupting or preventing the federally relevant criminal activity.
The Board of ACIC has issued a number of determinations about high risk and emerging drugs and has determined they are special operations. Relevantly, on 21 June 2017 the Board issued a determination pursuant to s 7C entitled 'Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No 3)' (HRED 3 determination). The effect of the HRED 3 determination was to authorise the ACIC to undertake intelligence operations relating to high risk and emerging drugs, including serious drug offences contrary to Part 9.1 of the Criminal Code Act 1995 (Cth), importing psychoactive substances contrary to s 320.2 of the Criminal Code, offences contrary to Part 3‑1 or Part 3‑2 of the Therapeutic Goods Act 1989 (Cth) and many other connected offences including offences involving violence, money laundering and perverting the course of justice.
Since the HRED 3 determination there has been a further determination relating to high risk and emerging drugs, but the special operation under the HRED 3 determination is ongoing.
Section 28 of the Act empowers an appointed examiner to summon witnesses and take evidence in order to seek information in undertaking a special operation. In order to do so, the examiner is empowered to require the examinee to take an oath or make an affirmation in a form approved by the examiner.
Section 30 provides that a person served with a summons to appear as a witness at an examination before an examiner must not fail to attend as required by the summons. Section 30(2) provides (relevantly):
A person appearing as a witness at an examination before an examiner shall not:
(a) when required pursuant to s 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or
…
Section 34A provides that a person is in contempt of the ACIC if, when appearing before the examiner, they refuse or fail to take an oath or make an affirmation when required to do under s 28.
Section 34B provides that if an examiner is of the opinion that the examinee is in contempt, then the examiner may apply to (relevantly) the Federal Court for the person to be dealt with in relation to contempt. An application must be accompanied by a certificate that states the grounds for making the application and the evidence relied upon. If the Court after considering the matters in the certificate and hearing evidence or statements from the parties finds that the person was in contempt of the ACIC, then the Court may deal with the person as if the acts constituted a contempt of this Court.
Contempt of this Court (both civil and criminal) is addressed by s 31 of the Federal Court of Australia Act 1976 (Cth). Part 42 of the Federal Court Rules 2011 (Cth) deals with the procedure for punishment for contempt.
Circumstances of the contempt
The respondent was served by two police officers at the prison where he is detained with a summons requiring him to attend an examination. The circumstances of being served by police in the prison environment caused the respondent some concern and he reportedly displayed a level of hostility. The evidence of one of the police officers was that such hostility is usual as prisoners do not want to be seen as cooperating with the police. I do not find the respondent's conduct surprising and do not consider it is of any moment in this particular sentencing process. It is the circumstances of the examination that are more pertinent.
The respondent attended at the commencement of the hearing and was without any legal representation.
The transcript records the following ensued:
Examiner: Well, what happens here is that you'll be, you're required to take an oath or an affirmation to,
Witness: I don't, I'm not taking no-oath.
Examiner: Yes, so the requirements that I,
Witness: There's no requirement.
Examiner: Yes, yes, I,
Witness: You can't take my rights of me,
Examiner: Yeah, I'm not,
Witness: I don't have to do anything.
Examiner: Yes, you do actually, you have to,
Witness: I don't.
…
Examiner: And so what I require you to do is to take, tell me whether you'll take an oath or affirmation to give evidence,
Witness: Yeah, no, I won't take an oath.
Examiner: And then when we ask you some questions for you to answer them.
Witness: No, I won't take an oath.
Examiner: Yeah. Well, I require you to indicate to me whether you will take an oath or an affirmation to give evidence in this Examination. What do you say to that? I'll give the choice of an oath or an affirmation. The oath, which is available for you to take and which I approve the terms is in this form. I would, your full name, do swear by Almighty God that the evidence I shall give in the course of this Examination shall be the truth, the whole truth and nothing but the truth, so help me God. Would you take an oath in those terms?
…
Examiner: Would you take an oath in those terms?
Witness: No, I won't take an oath. I don't want to be here,
…
Examiner: No. The other alternative is to take an affirmation if you,
Witness: I won't take an affirmation either, I don't do nothing.
…
Examiner: The terms of the affirmation that I would approve are these, I, with your full name do solemnly, sincerely and duly declare and affirm that the evidence I shall give in the course of this Examination shall be the truth, the whole truth and nothing but the truth to all questions that may be asked of me. Would you take an affirmation in those terms?
Witness: I chose not to be here.
…
Examiner: So would you take an affirmation in those terms?
Witness: No.
…
Examiner Alright. Well the question is whether you'll take an oath on the Bible to give truthful evidence, that's a fairly simple question. Are you prepared to do that, take the oath in the terms,
Witness: No.
Examiner: That I've read out?
Witness: No.
Examiner: Are you prepared to take an affirmation,
Witness: No.
Examiner: In the terms that I read out? Sorry?
Witness: No.
…
Examiner: An affirmation is an undertaking, a promise to give truthful evidence. So do you refuse to do that as an alternative to taking an oath on the Bible giving truth[ful] evidence?
Witness: There is no evidence to give, I'm not giving evidence. There's no point in being here, I don't want to be here. I don't choose to be here, I had my rights taken from me, so.
Examiner: So I take it from all of what you said that you refuse to go any further with these proceedings,
Witness: Yes.
Examiner: Is that correct?
Witness: Yeah.
…
The examiner then adjourned the proceedings to form a view as to whether the respondent was in contempt. The respondent was apparently able to speak to his lawyer during the adjournment. The following is then reported in the transcript:
Examiner: Thank you, please have a seat [GPY18], I understand that in the course of the adjournment you've had the opportunity to speak to Mr Tudori, your lawyer, is that correct?
Witness: Yeah.
Examiner: It's not for me to ask you what you discussed and indeed, I don't wish to do so and I don't wish to know but the position we're at is where we were before and that is me asking you whether or not you're prepared to take either an oath in the terms that I read to you or an affirmation in the terms that I read to you and have the Examination proceed.
Witness: I don't want to be here.
Examiner: Do I take that to be that you refuse to do either of those things?
Witness: Yeah.
…
Examiner: Well I formally require you to take an oath on the Bible to give truthful evidence in the form that I have previously approved or an affirmation to give truthful evidence in the form that I have approved in order that the Examination might proceed. What's your response to that requirement?
Witness: (Wds) way they're going, just do whatever you want anyway, that's what I mean.
Examiner: So do I take it that you refuse to do that?
Witness: I refuse.
Examiner: Beg your pardon?
Witness: I don't want to be here.
…
Examiner: But in the first place you are required to take an oath or affirmation.
Witness: I'm not taking an oath, I don't want to, I don't want to be here.
…
The transcript also indicates that the respondent was warned of the likelihood of imprisonment for contempt. The following exchange occurred at the examination:
Examiner: Alright. In those circumstances my view is that you're likely to be in contempt of the Commission and if I decide that's the case then you would be charged with being contempt, being in contempt of the Commission and proceedings would be instituted and they may well interrupt your sentencing proceedings and if you're sentenced, if you're convicted of that and you're sentenced, they would certain, it would certainly interrupt any sentence that you were serving because it's not, it's a sentence that is usually served separately.
Witness: You know it will.
Examiner: Well I'm just be pointing out to you that the likelihood is if this come, went on and came to its ultimate conclusion that it would result in you being in custody for longer that might otherwise be the case. Do you understand that?
Witness: At the end of the day, youse want me in jail, so I'll be in jail anyway, regardless, so it doesn't matter what I done.
Examiner: Well it's a matter for you,
Witness: Yeah, well,
Examiner: And your behaviour is to when, as to how long it might be,
Witness: I chose not to be here, I don't want to be here.
There was no suggestion that there had been any further attempt or request by the examiner to examine the respondent.
The purpose of punishment on contempt charges
There is no doubt that conduct by way of refusing to be sworn or affirmed or refusing to answer questions in such an examination, whether in court or before an authority or tribunal, is viewed very seriously.
In Anderson v DKH18 [2018] FCA 1571, White J summarised some of the statements by the court to that effect as follows:
[24] A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, at 117‑8:
The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation.
This investigation is still in progress in that the inspector has not, we are told, lodged his report, and the applicant still has the opportunity to purge his contempt by giving the answers required. His continuing non‑compliance with the Court's order to do so amounts to a deliberate and considered persistent defiance of the authority of the law. It cannot be condoned or tolerated.
…
It is to be emphasised that [the] answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation.
[25] King CJ referred with approval to a statement of Mitchell J that, if witnesses were able to gain the impression that information sought by an inspector could be withheld "by the mere payment of a tariff", investigations may well prove completely ineffective, at 118.
[26] A statement of Moffitt P in Thelander v Woodward [1981] 1 NSWLR 644 at 646 is to like effect:
Where appropriate, the sanctions of contempt and a charge under s 21 should be pursued with vigour and expedition. Indeed unless this is done an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime.
[27] In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds‑Streeton J noted:
[57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach.
Dodds‑Streeton J also noted, at [59], that a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was "the introduction of a compelling incentive for an unco‑operative witness to co‑operate in a timely way, by providing the information sought while it remains useful for the ACC's purposes".
More generally, the purpose of punishment for contempt of court was addressed by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 313‑314, who observed:
Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said:
'… These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.'
A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately [sic appropriately] emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.
The role of coercion is seen in particular in examples of indeterminate sentences imposed on offenders for the purpose of endeavouring to coerce them into performing their legal obligations: see, for example, Anderson v DKH18 at [33]; Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 at [60]‑[63].
Range of penalties
There is a range of penalties available to the court in punishing for contempt. In Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, the Full Court at [55] endorsed the statement of Nicholson J in Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949, (2002) 121 FCR 24 at [138] as to the range of penalties available to the court in punishing for contempt, namely:
(a) to commit a contemnor to prison for an indefinite period of time;
(b) to impose a fine for a wilful breach of an order or undertaking;
(c) to impose a daily fine;
(d) to order the sequestration of the assets of a contemnor; and
(e) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt.
Relevant circumstances
In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, Dunford J identified a number of circumstances that would often be relevant to an assessment of the punishment appropriately imposed for contempt of court committed by failing to give evidence (drawing upon observations made in Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)).
Dunford J identified ten considerations in the following terms:
(1) the seriousness of the contempt proved;
(2) whether the contemnor was aware of the consequences to himself of what he did;
(3) the actual consequences of the contempt on the relevant trial or inquiry;
(4) whether the contempt was committed in the context of serious crime;
(5) the reason for the contempt;
(6) whether the contemnor has received any benefit by indicating an intention to give evidence;
(7) whether there has been any apology or public expression of contrition;
(8) the character and antecedents of the contemnor;
(9) general and personal deterrence; and
(10) denunciation of the contempt.
In subsequent cases, this list of considerations has been regarded as a convenient guide to the circumstances appropriately considered, both in the context of statutory contempt provisions and common law criminal contempt: see, for example, Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Anderson v DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9].
The appropriate penalty in this case
The respondent does not challenge the seriousness of his offending. His counsel accepted that an immediate term of imprisonment was inevitable. The examiner did not advocate for an indeterminate sentence.
There are other examples of sentencing for contempt for refusal to take the oath or answer questions which provide some flexible guidance, although it could not be said that there is any tariff, taking into account the varying circumstances of the offending. However, for context, I note the following:
(1) In Allbeury v Corruption and Crime Commission the Court of Appeal upheld sentences imposed in Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26; (2011) 205 A Crim R 386 on (relevantly) three contemnors where, in the context of organised crime investigations, the contemnors persistently refused to take an oath. Each was sentenced to 2 years imprisonment with backdating.
(2) In Anderson v XLVII [2015] FCA 19 a respondent in contempt of the Australian Crime Commission by refusing to answer questions but who subsequently purged such contempts was sentenced to 4 months imprisonment, wholly suspended for a period of 15 months; relevant matters included the purging of the contempt, the respondent's prior good character and his obligation to care for his grandmother.
(3) In Hannaford v HH the respondent was charged with contempt of the Australian Crime Commission by refusing or failing to answer questions and obstructing or hindering the examiner in the course of his duties, and in circumstances where a fixed term of imprisonment was unlikely to influence the respondent to provide timely cooperation. The respondent was sentenced to imprisonment until further order.
(4) In Murray v Chief Examiner [2018] VSCA 144, leave to appeal from a sentence for contempt was refused. The respondent was found guilty after trial of contempt of a chief examiner under the Major Crime (Investigative Powers) Act 2004 (Vic) because he refused to be sworn or make an affirmation. He was sentenced to 8 months imprisonment. The applicant said he would not participate in the examination as a witness because he would not 'lag'. The Court noted '[t]hat conduct is the very essence of what the section is designed to overcome' (at [80]). The Court also recorded that other cases in the Supreme Court jurisdiction for contraventions of s 49 of the Major Crime (Investigative Powers) Act did not involve sentences as high as 8 months, but ranged from 2 months to 6 months imprisonment and each had its own unique features, but that the cases do demonstrate that a contravention will usually, if not invariably, call for a term of immediate imprisonment.
(5) In Principal Registrar of the Supreme Court of New South Wales v Jando, the respondent refused to answer questions at a criminal trial and was punished for common law contempt. The defendant was sentenced to imprisonment for 12 months with a direction that the sentence be served by way of periodic detention.
(6) In R v Abell [2007] QCA 448, an appellant who was examined under s 24A of the Act refused to answer questions and was sentenced to 12 months imprisonment to be released on recognisance after 4 months.
(7) In R v Drever [2010] SASCFC 27, the defendant pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to s 30(2) of the Act and was sentenced to a period of 12 months imprisonment to be released after serving 6 months upon entry into a recognisance.
The only explanation offered by the respondent through counsel for his contempt was a generalised fear of potential retribution if he were to be perceived as being an informant by others within the prison.
That the fear of retribution is a matter that will rarely be given mitigatory weight is recognised in both R v Drever at [24] and by the primary judge in Allbeury at [42]‑[43]. Though recognised in those cases in the context of investigations into organised crime, it can fairly be said that the exercise of powers to facilitate the investigation of matters such as those the subject of the HRED 3 determination would also be impeded if significant mitigating weight were given to an assertion of fear of retribution as a reason for refusing to provide information. Whilst I acknowledge the somewhat limited explanation for the contempt given by the respondent, it is not a matter to which I give any real weight by way of mitigation. As is apparent from the transcript of the hearing before the examiner, the respondent was aware that the risk of refusing to take the oath or affirmation when requested by the examiner was that he would be punished and punished by imprisonment.
I note that the contempt was of a serious nature. The respondent refused to take an oath or affirmation despite several opportunities to do so, despite being provided with the opportunity to take legal advice and despite having some insight as to the likely result. The conduct occurred during investigations of great importance to the protection of the broader community. There is no doubting the serious impact on the community of illicit drug use and supply, and associated crime.
However, I put little weight in the circumstances of this matter on the failure of the respondent to purge his contempt. No evidence was provided as to any opportunity subsequently provided to the respondent or indeed any communications about potential purging of the contempt. The only relevant evidence on the part of the examiner was that the examination 'remains extant'. Nothing in the submissions suggested there was any particular impact on the inquiries arising out of his refusal to cooperate. I am unable to make any findings on the evidence about the effect the refusal to take the oath or make an affirmation may have had on the investigation being carried out, but I infer that the contempt impeded and delayed its conduct. Therefore, coercion plays a lesser role in punishment than deterrence and denunciation in the circumstances of this case.
I take into account that the respondent pleaded guilty to contempt, and informed the Court at an early stage of his intention to plead guilty. That is a matter to which I give some weight as it indicates some acceptance of responsibility for his conduct, and also reflects a saving to the examiner and the Court in terms of resources. It may be said that a conviction was inevitable, but an early indication of a guilty plea to my mind still has some value.
Finally, I note the personal circumstances of the respondent. He is aged in his 30s and is a husband and father. He described his upbringing as financially strained but found employment in trades until he was no longer able to perform this work upon being remanded in custody. He has had a history of drug and alcohol abuse which has had an impact on his adult life and which contributed to the charges currently before the District Court of Western Australia relating, in particular, to drug use including possession with intent to sell or supply. I have already noted that the respondent faces significant charges for drug possession, dealing with proceeds of crime and other matters. To give some context to the severity of those charges, the respondent was arrested in possession of over 25 grams of methylamphetamine and a significant amount of Australian currency. He has spent just over a year in custody to date.
His counsel acknowledged that a lengthy term of imprisonment on the other charges he faces is inevitable. This is not a case where there is any potential to suspend on conditions any term of imprisonment I might impose. I also take into account that upon an order for imprisonment for this offence, any benefit that might otherwise have been available to the respondent on his future sentencing by way of backdating for time served on remand will cease.
Taking into account all of those circumstances, a fixed term of imprisonment is imposed. I consider that the appropriate term is a period of 6 months.
I note that orders have been made previously prohibiting publication of the respondent's name and otherwise suppressing access to the Court file, and those orders remain in place. There will be liberty to apply in that regard (and generally).
Although the respondent submitted any costs order would be punitive, I consider there is no reason why the respondent ought not be ordered to pay the applicant's costs, as the application was a direct result of his conduct.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.
Associate:
Dated: 21 June 2019
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