Field v New South Wales Crime Commission - [2009] NSWCA 144

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Field v New South Wales Crime Commission [2009] NSWCA 144

FILE NUMBER(S):
40408/2008

HEARING DATE(S):
26 March 2009

JUDGMENT DATE:
12 June 2009

PARTIES:
Malcolm Gordon Field (Appellant)
NSW Crime Commission (Respondent)

JUDGMENT OF:
Beazley JA McClellan CJ at CL Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
11852/01

LOWER COURT JUDICIAL OFFICER:
Adams J

LOWER COURT DATE OF DECISION:
13 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 103

COUNSEL:
Appellant in person
I D Temby QC (Respondent)

SOLICITORS:
Appellant in person
NSW Crime Commission (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - contempt - refusal to take oath or affirmation - refusal to answer questions - whether sentence excessive - whether appropriate weight given to appellant's medical condition - appeal dismissed

LEGISLATION CITED:
Criminal Assets Recovery Act 1990
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 Principal Registrar of Supreme Court of NSW v Tran (2006) NSWSC 1183; 166 A Crim R 393
R v Bilal Razzak (2006) NSWSC 1366; 166 A Crim R 132
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

TEXTS CITED:

DECISION:
1. Leave granted to the appellant to appeal out of time
2. Appeal dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2008/40408
BEAZLEY JA
McCLELLAN CJ at CL
HANDLEY AJA
FRIDAY 12 JUNE 2009

FIELD v NEW SOUTH WALES CRIME COMMISSION

Judgment

BEAZLEY JA: I agree with McClellan CJ at CL.
McCLELLAN CJ at CL: Malcolm Gordon Field (“the appellant”) appeals to this Court against a sentence of four years and six months imposed on him by Adams J following his conviction for contempt of court. The contempt comprised a refusal by the appellant to comply with an order of the Supreme Court that he be examined on oath before a registrar pursuant to s 12(1) of the Criminal Assets Recovery Act 1990. The appeal is out of time and for that reason leave to appeal is required. The appellant is unrepresented and the respondent does not oppose a grant of leave. In my opinion leave should be granted.
The order for examination was made following the arrest of the appellant on 5 January 2001 upon charges arising out of the importation into Australia of approximately 34 kilograms of ecstasy. On 10 January 2001 the respondent obtained a restraining order in respect of the appellant’s property. On 4 July 2001, the respondent commenced proceedings to obtain a further restraining order and at the same time sought an examination order pursuant to ss 10 and 12 of the Criminal Assets Recovery Act 1990. Simpson J granted the application and made an order requiring the appellant to attend before a registrar of the Supreme Court to be examined. When the appellant appeared for his examination on 13 August he indicated to the court that he would refuse to answer any questions. He took this course, although he had been advised by his legal representatives that he had no valid ground for refusing to answer questions and his refusal could result in his being charged with contempt.
The appellant was convicted and sentenced for contempt on 29 May 2003 by Bell J. When considering the appropriate sentence her Honour was mindful of the appellant’s physical difficulties arising from severe adult-onset asthma which had required him to be hospitalised on a number of occasions. However, her Honour concluded that appropriate medical treatment would be available within the prison system and, although imprisonment would impose a greater burden on the appellant than on a healthy person, a period of fulltime custody was required. He was sentenced to twelve months imprisonment to commence on 5 June 2007 and expire on 4 June 2008.
By the time the appellant was sentenced by Bell J he had been convicted and sentenced for the drug offence. For that offence he was sentenced to imprisonment for 13 years commencing on 5 January 2001 with a non-parole period of 7 years which expired on 4 January 2008. It was for this reason that Bell J determined to commence the sentence she imposed on 5 June 2007.
On 17 June 2005 the appellant was again ordered to attend before a registrar of the Supreme Court to be examined on his oath. Although he attended on the day appointed, which was 29 June 2005,when asked to take the oath he said “I refuse to take anything.” Counsel for the appellant indicated to the registrar of the court that the appellant intended to take the same course at any further date to which the examination might be adjourned. He told the registrar that the appellant was “fully aware of the consequences of that attitude.”
On 16 December 2005 the appellant was dealt with by Hulme J for this later contempt. Hulme J was aware of the appellant’s health problems and when sentencing the appellant referred to the fact that there was evidence of “some brain damage injury and psychological disturbance or disability”. However Hulme J rejected a submission that the appellant refused to subject himself to examination because of a paranoid belief about persecution by the Crime Commission coupled with an impairment in his reasoning processes.
Hulme J concluded that a further term of imprisonment was required. He referred to the fact that the sentence imposed by Bell J did not appear to have affected the appellant’s attitude to being examined and his Honour concluded that a significantly harsher penalty was appropriate. He committed the appellant to imprisonment until further order of the court. His Honour appreciated that the sentence would not have any practical effect until the expiration of the non-parole period imposed in respect of his earlier drug offence which occurred on 4 January 2008.
On 10 June 2007 the respondent filed a notice of motion in the Supreme Court seeking an order that the offender be released on a specified date from the imprisonment ordered by Hulme J. This course was taken because it was anticipated that the order which had been made restraining the appellant’s assets would in due course be overtaken by an assets forfeiture order pursuant to s 22 Criminal Assets Recovery Act 1990 with the consequence that no further opportunity would be available to the appellant to purge his contempt. It was in these circumstances that the matter came before Adams J for consideration of the appropriate determinate sentence.
Adams J identified that in sentencing the appellant he was required to proceed in accordance with the Crimes (Sentencing Procedure) Act 1999 (see Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at 537-538; Principal Registrar of Supreme Court of NSW v Tran (2006) NSWSC 1183; 166 A Crim R 393; R v Bilal Razzak (2006) NSWSC 1366; 166 A Crim R 132).
Before Adams J the appellant made three points. He firstly submitted that the restraining order, which was the foundation for the order for examination, should not have been granted since it was procured by the Commission fraudulently and oppressively. Secondly the appellant submitted that he was justified in refusing to assist by participating in an examination because the respondent had acted unlawfully. Finally he submitted that the order for his examination was contrary to his fundamental right not to give evidence that might incriminate him.
Adams J received evidence concerning the appellant’s physical and psychological condition. With respect to these matters his Honour concluded that:
“I think it appropriate that I do make some allowance for the offender’s mental condition which has made it somewhat more difficult for him than would otherwise be the case to rationally and calmly consider his position. At the same time I am quite convinced that his refusal to obey the orders for examination is motivated, in essence, by a desire to keep from the authorities any information that might assist them to locate assets of which, he believes, they are presently unaware. To some extent also I accept that this may place him at a disadvantage in dealing with other prisoners and the prison environment.
I also take into account the offender’s medical condition. I am satisfied that it does make it much more difficult for him to cope with the prison environment than an ordinary prisoner. This is exacerbated by his extreme sensitivity to cigarette smoke which he claims (and I have little difficulty in accepting) is virtually every where in the prison.
With respect to the appropriate sentence his Honour said:
30An appropriate punishment for the offender’s contempt, taking into account all the objective and subjective features to which I have referred, is of the order of three years. The purpose of this punishment would be frustrated if the term were concurrent with the sentences which he is presently serving. As will have been noted, the term of imprisonment relating to his involvement with the importation of drugs expired on 4 January 2008 though the sentence does not expire until 4 January 2014. The twelve-month sentence imposed by Bell J commenced on 5 June 2007 and expires on 4 June 2008.
31I bear in mind that it is necessary to have regard to the principle of totality when accumulating sentences. Were it not for Hulme J’s sentence I would have sentenced the offender to a fixed term of imprisonment for three years. If this term is added to the sentence imposed by Bell J, the offender would be entitled to be considered for parole on 4 June 2011. If released on that date, he would be on parole for a further two years and five months to complete the sentence imposed for the drug offence. This would mean that he would have spent ten years and five months in continuous custody. Having regard to the principle of totality, I consider that this sentence of effective imprisonment should be reduced somewhat. Accordingly, I propose to make an order that will permit the offender to be considered for release on parole on 15 June 2010. It seems to me that it would not be appropriate to sentence the offender to a fixed term of three years to commence on the date upon which he was sentenced by Hulme J because this sentence would be almost completely concurrent with those imposed for the drug offence and by Bell J. The purpose of punishing for contempt would, as I have mentioned, be almost completely frustrated. The effect of my order will be to reduce the potential parole period envisaged by the terms of the drug sentence, but this is inescapable. In the circumstances, I do not think that any further reduction in the time to be served by the offender for his contempt can be justified.
32Accordingly, the sentence I impose is a fixed term of four years and six months commencing 16 December 2005 and ending on 15 June 2010 upon which date the offender will be eligible to be considered for parole in respect of the sentence of thirteen years he is serving for the drug offence which expires on 4 January 2014.”
The appellant appears for himself. The ground of appeal identified in his Notice of Appeal reads:
“To appeal conviction and the severity of contempt of court before Registrar Youness. The appeal is expressed to be against the decision of Adams J.”
The appeal was supported by lengthy written submissions. In those submissions the appellant argued that his conviction for contempt should be set aside. He emphasised that the affidavit which supported the orders that he attend for examination was sworn by Mark Standen, an assistant director/senior investigating officer of the respondent, who has since been arrested and charged with serious offences, making his evidence in the appellant’s proceedings unreliable. He further submitted that because an order has now been made that he forfeit his assets there is no utility in his further punishment for contempt. He further submitted that the sentence imposed by Adams J was excessive and that his Honour failed to give appropriate weight to the appellant’s medical condition, in particular the report of Dr Braune which referred to the possibility that the appellant may have paranoid ideation, be mentally impaired by way of judgment and have some other symptoms of organic brain disease.
The charge of contempt was founded on the disobedience by the appellant of the order that he answer questions before the registrar of the Supreme Court. Unless that order was set aside the appellant was required to answer when asked.
The evidence before Hulme J, which I do not understand to be disputed by the appellant, was that the appellant indicated to a registrar that he was not prepared to take an oath or affirmation or be examined as required by the order made by Simpson J on 4 July 2001. That order was not appealed and when the matter came before Hulme J no challenge was made to it. The appellant pleaded guilty to the charge of contempt.
By his plea of guilty the appellant acknowledged both his obligation and his failure to obey the court’s order. He was rightly convicted of contempt. The challenge which the appellant now seeks to make to his conviction by reason of the fact that Mr Standen has been charged is not a matter which can be considered by this Court.
In support of the submission that the sentence imposed by Adams J was manifestly excessive the appellant referred to 11 decisions of this Court where, in varying circumstances, custodial sentences and, in some cases, fines were imposed for contempt. The maximum penalty imposed in these cases was imprisonment for a period of 12 months. He argued that by comparison the sentence of a fixed term of 4 years and 6 months imposed by Adams J was excessive. He further submitted that his Honour should have imposed a period of parole and, I infer, submitted that part of the determinate sentence should have been served on parole. He nominated a period of 13½ months as the appropriate period of parole which would have allowed his release from prison in April 2009.
The actions of the appellant in twice refusing to submit to an examination before the Supreme Court were serious. It was a contumacious contempt in circumstances where the appellant was fully aware of the possible consequences. This Court has on many occasions considered the correct approach to punishment for contempt in similar circumstances. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Kirby P observed at 314-315:
“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 emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.
…
The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR1422 (1927) at 1429. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard: see Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333. The procedures of a criminal prosecution must be strictly observed: see Spindler v Balog (1959) 76 WN (NSW) 391 at 393.”
In Registrar of the Court of Appeal v Gilby (unreported, NSWCA 20 August 1991) this Court identified the factors to be taken into account when punishing for a contempt in the context of deliberate refusal to give evidence. They are:
1. the objective seriousness of the contempt;
2.whether the contemnor was aware of the consequences of what he proposed to do;
3.whether the contempt was committed in the context of serious crime;
4.whether the contempts were motivated by fear of harm should evidence be given;
5.whether the contemnor had received a benefit by indicating an intention to give evidence.
In the present case there was no suggestion that the appellant was motivated by a fear of harm should he give evidence. There was also no suggestion that he had received a benefit by indicating a previous intention to give evidence. The contempt was committed in the context of serious crime, being his involvement in substantial drug offences. It was the second occasion upon which he had refused to give evidence and, compounding his contempt, he made plain that he would continue to do so.
The Criminal Assets Recovery Act 1990 has been provided by the Parliament for the purpose of ensuring that those who seek to profit from major crime are deprived of the benefit of their illegal activity. The legislation provides investigative processes designed to facilitate the recovery of the relevant assets. When, as in the present case, an individual refuses to cooperate and answer questions the purpose of the legislation can be entirely frustrated.
Adams J gave careful consideration to the length of the sentence and its relationship to the sentences which the appellant was already serving for his drug offences. His Honour considered the date upon which the sentence should commence, mindful of the need to provide for effective punishment of the appellant for his contempt, and also allow for an appropriate period of parole to be served pursuant to the sentence imposed for the drug offence. After giving consideration to questions of totality his Honour imposed a sentence of a fixed term of 4 years and 6 months. Although his Honour did not expressly refer to the need to consider a non-parole period for the contempt offence, his Honour’s discussion of the relationship between the proposed sentence and the existing sentences make plain that he was mindful of the need to provide for an appropriate period of fulltime custody for the contempt offence. His Honour’s approach was appropriate.
It is apparent from the remarks of Adams J that his Honour was mindful of the appellant’s health problems. His Honour indicated that he accepted that the appellant suffers from Churg-Strauss syndrome with associated breathing difficulties. This may make it more difficult for him to cope with the prison environment, particularly if exposed to smoke, but there is no suggestion that his health has been or will be further compromised by his continuing incarceration.
It is correct, as the appellant identified, that a forfeiture order has now been made and the coercive component of the sentence is now irrelevant. However, it was because it was contemplated that a forfeiture order would be made that it was decided that a determinate sentence should be imposed, the sentence imposed by Hulme J having failed to persuade the appellant to respond to the order for the examination.

Notwithstanding the appellant’s lengthy written submissions I am not persuaded that Adams J failed to have appropriate regard to relevant matters or that his sentencing discretion has miscarried. Having regard to the objective circumstances of the offence and notwithstanding the appellant’s health difficulties the sentence was not excessive.
In my opinion leave should be granted to the appellant to appeal out of time but the appeal should be dismissed.
HANDLEY AJA: I agree with McClellan CJ at CL.
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LAST UPDATED:
15 June 2009