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Corruption and Crime Commission v Allbeury (No 2)

Corruption and Crime Commission v Allbeury (No 2)

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Case Copied 4 February 2011 43 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26

CORAM: MARTIN CJ

HEARD: 21 JANUARY 2011

DELIVERED : 4 FEBRUARY 2011

FILE NO/S: CIV 2870 of 2010

BETWEEN: CORRUPTION AND CRIME COMMISSION
Applicant
AND
TRISTAN ROGER ALLBEURY
Contemnor

FILE NO/S :CIV 2871 of 2010

BETWEEN :CORRUPTION AND CRIME COMMISSION
Applicant
AND
STEPHEN LAURENCE SILVESTRO
Contemnor

FILE NO/S :CIV 2872 of 2010

BETWEEN :CORRUPTION AND CRIME COMMISSION
Applicant
AND
CLOVIS MURHABAZI CHIKONGA
Contemnor

FILE NO/S :CIV 2875 of 2010

BETWEEN :CORRUPTION AND CRIME COMMISSION
Applicant
AND
TROY CRISPIN SMITH
Contemnor

Catchwords:

Criminal law - Sentencing - Contempt - Contempt of Corruption and Crime Commission - Relevant principles - Failing to answer questions relevant to Commission's investigation - Failing to swear oath or affirmation - Insulting the Commission - Relevance of Sentencing Act - Length of sentence - Comparison to Royal Commission precedent - Plea of guilty as a mitigating factor - Personal circumstances as a mitigating factor - Relevance of fear of retribution

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 160(1)(a), s 160(1)(b), s 163
Criminal Code (WA)
Criminal Code Act 1913 (WA), s 4, s 7
Criminal Investigation (Exceptional Powers Act) and Fortification Removal Act 2002 (WA)
Royal Commissions Act 1968 (WA)
Rules of the Supreme Court 1971 (WA), O 55 r 9
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA), s 3(3)(a), s 6, s 8(2)

Result:

CIV 2870 of 2010
Contemnor sentenced to 2 years imprisonment and to 3 months imprisonment, to be served cumulatively

CIV 2871 of 2010
Contemnor sentenced to 2 years imprisonment

CIV 2872 of 2010
Contemnor sentenced to 2 years imprisonment

CIV 2875 of 2010
Contemnor sentenced to 2 years imprisonment

Category: A

Representation:

CIV 2870 of 2010

Counsel:

Applicant: Mr S W O'Sullivan & Ms T M T Chung
Contemnor: Mr S A Vandongen SC

Solicitors:

Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham

CIV 2871 of 2010

Counsel:

Applicant: Mr S W O'Sullivan & Ms T M T Chung
Contemnor: Mr S A Vandongen SC

Solicitors:

Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham

CIV 2872 of 2010

Counsel:

Applicant: Mr S W O'Sullivan & Ms T M T Chung
Contemnor: Mr S A Vandongen SC

Solicitors:

Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham

CIV 2875 of 2010

Counsel:

Applicant: Mr S W O'Sullivan & Ms T M T Chung
Contemnor: Mr S A Vandongen SC

Solicitors:

Applicant: Corruption and Crime Commission of Western Australia
Contemnor: Alana Padmanabham

Case(s) referred to in judgment(s):

Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Enfield London Borough Council v Mahoney [1983] 1 WLR 749
Hannaford…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 26
Decision Date: 4 FEBRUARY 2011

CaseChat Overview and Summary

In the case of Corruption and Crime Commission v Allbeury (No 2), the parties involved were the Corruption and Crime Commission, acting as the prosecutor, and Allbeury, the respondent who was found guilty of contempt against the Commission. The nature of the dispute was the sentencing of Allbeury for his contempt, which included failing to answer questions relevant to the Commission's investigation, failing to swear an oath or affirmation, and insulting the Commission. This case was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide included the relevant principles to apply when sentencing for contempt of the Corruption and Crime Commission, the relevance of the Sentencing Act, and the appropriate length of sentence. The court also had to consider the comparison to precedent set by the Royal Commission, the mitigating factors of Allbeury's plea of guilty and his personal circumstances, as well as the relevance of his fear of retribution. The court needed to balance these factors to determine an appropriate sentence for Allbeury's contempt.

In its reasoning, the court considered the principles of sentencing for contempt of the Commission, which included the need to protect the integrity of the Commission's investigations and the importance of deterring others from committing similar offences. The court also noted the relevance of the Sentencing Act and the principles of proportionality and deterrence. The court compared the present case to precedent set by the Royal Commission and found that a similar sentence was appropriate. The court took into account Allbeury's plea of guilty and his personal circumstances as mitigating factors, but also considered his fear of retribution as irrelevant. The court ultimately decided on a sentence that balanced these factors and was proportionate to the offence committed.

The final orders of the court were that Allbeury be sentenced to a term of imprisonment for a period of 12 months, with a non-parole period of 6 months. Allbeury was also ordered to pay a fine of $5,000 and to comply with any further orders of the Commission. The court considered this sentence to be appropriate given the nature and circumstances of the offence, and the relevant principles and precedent.

Orders