In the matter of Reece George Barnes

[2016] NSWSC 133

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Reece George Barnes [2016] NSWSC 133
Hearing dates:	18 December 2015
Date of orders:	12 February 2016
Decision date:	12 February 2016
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Reece George Barnes (the Contemnor) is convicted of contempt of court. The Contemnor is sentenced to a term of imprisonment for 1 year and 10 months to commence on 28 April 2016 and to expire on 27 February 2018, with a non-parole period of 10 months to commence on 28 April 2016 and to expire on 27 February 2017.
Catchwords:	CRIMINAL LAW – contempt of court – refusal to give evidence – warning – sentencing - relevant factors on sentencing – objective gravity of offence – special circumstances on the basis of need for appropriate accumulation and concurrency of pre-existing sentence and sentence to be imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Supreme Court Rules
Cases Cited:	European Asian Bank v Wentworth (1986) 5 NSWLR 445 Honourable Acting Justice Ireland v Russell (2001) NSWSC 468 In the matter of Bauskis [2006] NSWSC 908 In the matter of David James Ezold (2002) NSWSC 574 In The Matter of Steven Smith (No 2) [2015] NSWSC 1141 Principal Registrar of Supreme Court (NSW) v Jando (2001) 53 NSWLR 257; 125 A Crim R 473 R v Aubusafiah, (1991) 24 NSWLR 531; 56 A Crim R 424 R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 Re Steven Smith [2015] NSWSC 832 Registrar of Court of Appeal v Gilbey (NSW Court of Appeal, 20 August 1991, unreported) Registrar of Court of Appeal v Raad (NSW Court of Appeal, 9 June 1992, unreported) Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183; 166 A Crim R 393 Smith v The Queen (1991) 25 NSWLR 1; 56 A Crim R 148 Trad v Pickles Auction Pty Ltd; in the matter of Carl Trad (2006) NSWSC 1177 Wood v Galea (1997) 92 A Crim R 287 Wood v Staunton (No 5) (1996) 86 A Crim R 183
Category:	Principal judgment
Parties:	Reece George Barnes (Contemnor)
Representation:	Counsel: B Baker (Amicus Curiae) A Evers (Contemnor)   Solicitors: Crown Solicitor’s Office (Amicus Curiae) Scott Murrell Lawyers (Contemnor)
File Number(s):	2015/300305

Judgment

1. On 18 December 2015, Reece George Barnes, who will be referred to in these remarks as "the contemnor", pleaded guilty before me to a charge laid orally against him on 13 October 2015 that on that date he was in contempt of the Supreme Court of New South Wales arising out of his wilful refusal to take the oath or make an affirmation when required to do so for the purpose of giving evidence in a criminal trial.

2. The contemnor was charged with contempt of court under Pt 55, r 3(a) of the Supreme Court Rules. The proceedings were then adjourned from time to time; and in due course he appeared before me on 18 December 2015, on which occasion he was represented by Mr A Evers of counsel, who confirmed that his client had pleaded guilty to the offence and adhered to that plea. On the latter date I heard submissions by Ms B Baker of counsel, who appeared as amicus curiae, and Mr Evers on behalf of the contemnor.

Procedure in Appointment of Amicus

3. Under the summary procedure for contempt where a contemnor is charged by the trial judge, the matter may proceed without the involvement of a prosecutor. I refer to European Asian Bank v Wentworth (1986) 5 NSWLR 445. It is accepted procedure that counsel may appear as amicus to assist the judge by way of adducing evidence and making submissions. Such procedure has been adopted in a number of cases, as noted by Ms Baker in her written submissions: Honourable Acting Justice Ireland v Russell (2001) NSWSC 468; In the matter of David James Ezold (2002) NSWSC 574; In the matter of Bauskis [2006] NSWSC 908; Trad v Pickles Auction Pty Ltd; In the matter ofCarl Trad (2006) NSWSC 1177; Re Steven Smith [2015] NSWSC 832.

The Criminal Trial

4. The contemnor and Chad Frederick Misiepo were both charged with offences arising out of the death of Peter Leslie Martyn on 1 January 2014 at Port Macquarie.

5. Mr Martyn (“the deceased”) died as a result of three stab wounds to the chest inflicted on that date.

6. The contemnor had been charged with the unlawful killing of the deceased, with an alternative charge of assault occasioning actual bodily harm. On 9 September 2015, following a trial in Newcastle, he was acquitted of both charges.

7. The contemnor's co-accused, Chad Frederick Misiepo, was charged with the murder of Mr Martyn on 1 January 2014. He was tried in a separate trial, before a jury, held in Coffs Harbour. He was acquitted of the charge of murder, but convicted of the manslaughter of Mr Martyn.

8. The events that occurred during a Basha inquiry conducted on 13 October 2015, when the contemnor was called to give evidence, have conveniently been summarised in the written submissions of Ms Baker dated 17 December 2015. Mr Evers, at the hearing on 18 December 2015, accepted Ms Baker's written submissions as accurately recording those events: T 8. The account below concerning the relevant events, accordingly, draws upon paragraphs 7 to 16 of those submissions. In summary, the relevant events are as follows.

9. On 13 October 2015 the contemnor was called by the Crown to give evidence on a Basha inquiry. At the outset of the inquiry, the contemnor was asked by the Court Officer whether he would take an oath or an affirmation. He replied “Neither. I don't wish to be here at all.” When I repeated the question as to whether he would take an oath or an affirmation, he repeated that answer.

10. The contemnor was then warned that if he refused to take an oath or affirmation he ran the risk of placing himself in contempt of court. The transcript at pages 3 to 4 records the following:

“HIS HONOUR: Mr Barnes, if you refuse to take either an oath or affirmation you run the risk of placing yourself in contempt of court. And that can result in unfortunate consequences in terms of the criminal justice system being activated involving you for contempt. We don't want to get into a situation whereby that situation eventuates and I want to just put you on notice there so you don't jeopardise your own interests.

The position is that you are required by order of the Court to attend to give evidence in these proceedings.

I appreciate what you've said that you don't wish to give evidence but it's not a personal wish in these proceedings, it's a question of obligation by law that every citizen has. You understand what I'm saying?”

11. The contemnor replied "Yeah."

12. The transcript further records:

“HIS HONOUR: I just don't want you to be in the dark as to the consequences of you refusing to take an oath or affirmation. In fairness to you I want to put you on notice so that you don't get yourself into any difficulties. The first step, as I say, is to take either an oath or affirmation. If you refuse to do that, then you are starting to put yourself in jeopardy.

So Mr Barnes, the position is that you are required to do that and then we will take it to the next step.

Do you understand what I've said?

WITNESS: Yeah.

HIS HONOUR: Now Mr Barnes, I'll ask you again. Do you take an oath or affirmation?

WITNESS: Neither. I refuse to participate.”

13. As recorded in Ms Baker's submissions in paragraph 9, there was further discussion concerning whether the contemnor had obtained legal advice. The proceedings were adjourned to enable him to obtain legal advice. Further discussion on that matter, as set out in paragraph 9 of Ms Baker's submissions, took place.

14. After the luncheon adjournment, Ms Manuell of Senior Counsel appeared and advised the Court that she had been instructed by the Legal Aid Commission to provide advice to the contemnor: T 14:35. The matter was again stood down to enable Ms Manuell to speak to him.

15. Following this adjournment, Ms Manuell advised the Court that she had explained to the contemnor what contempt is, how a finding of contempt may be made by his refusal to take an oath, and that she had explained the consequences of a finding of contempt: T 16:5. Ms Manuell stated that the contemnor instructed her that, notwithstanding this advice, he did not wish to take an oath in the proceedings, or to participate any further.

16. The following exchange then occurred: T 16:30 to T 17:10:

“HIS HONOUR: Yes. Mr Barnes, I adjourned this morning so that you would have the opportunity of considering the position, having heard what I said then, to reflect upon the position and obtain some legal advice. Very fortunately, you have the services of Ms Manuell SC this afternoon and, notwithstanding that, you still maintain the position whereby you will not take an oath or affirmation. I have indicated before the seriousness of that position, so far as the Court is concerned and so far as you personally are concerned. Notwithstanding that, your position is that you still maintain your refusal, is that right?

WITNESS: Yes.”

17. The transcript then records the contemnor was informed that he left the Court with no alternative but to charge him with contempt, and the charge was then read to him. He was directed to make his defence to the charge of contempt.

18. The transcript further records, as extracted in paragraph 12 of Ms Baker's submissions, that the contemnor was advised as follows:

“Notwithstanding the fact that you have had the benefit of legal advice this afternoon, I am going to afford you a further opportunity of preparing any defence that you wish to make to the charge and I am going to list those proceedings later this week. Insofar as you require legal advice or representation in relation to the charge of contempt of this Court, if you are unable to afford legal representation then Legal Aid may be available to you from the Legal Aid Commission. I propose, accordingly, to stand the contempt proceedings over to Thursday of this week.”

19. Discussions then ensued as to the future listing of the contempt charge.

20. The contempt matter was next before the Court on 22 October 2015. There was discussion then with counsel for the accused Misiepo as to Mr Barnes refusing to take oath in the presence of the jury.

21. On 27 October 2015, the contemnor was called before the jury in the Misiepo trial. The following exchange occurred:

“HIS HONOUR

Q.   Sir, would you state your name?

A.   Reece Barnes.

Q.   Mr Barnes, you've been subpoenaed to give evidence, is that true?

A.   Yes.

Q.   I'll ask that you take an oath or affirmation as you choose for the purpose of giving evidence.

A.   Sorry, I can't do that.

Q.   When you say you can't do that, that means what?

A.   No.

Q.   That you are refusing to?

A.   Yes.

Q.   And are you indicating by that refusal that you are refusing to give evidence in this trial?

A.   Yes.”

22. There was further discussion as set out in Ms Baker's submissions, and as noted in paragraph 16, the contemnor was not charged with contempt arising out of this second refusal to be sworn.

Evidence Tendered at the Sentence Hearing

23. The evidence tendered at the sentence hearing was entirely documentary. Ms Baker tendered the following documents relating to the contemnor:

Exhibit A – Criminal History as at 12 October 2015. Bail Report

Exhibit B – New South Wales Department of Corrective Services Statement of conviction, sentences and appeals

Exhibit C – Inmate Profile Document dated 17 December 2015.

24. Mr Evers tendered the following documents:

Exhibit 1 – Transcript of a recording between Detective Senior Constable Sanger and Reece Barnes dated 1 January 2014

Exhibit 2 – Transcript of the listening device recorded conversation between Mr Barnes and an unnamed person on 8 January 2014

Exhibit 3 – Transcript of conversation between Mr Barnes and "Brendan" 11 February 2014

Exhibit 4 – Recording of phone call with Mr Barnes' father on 12 February 2014

The Contemnor's Subjective Circumstances

25. The contemnor was born on 9 December 1988. He was, accordingly, 26 years of age at the time of the subject offence.

26. His criminal record contains a number of relatively minor offences, including driving offences on or about 31 October 2006. On 12 February 2014, he was charged with drug offences; namely, possess prohibited drug and supply of prohibited drug.

27. On 12 February 2014, he was sentenced by the Port Macquarie District Court for the offence of supply prohibited drug to imprisonment for a period of 2 years commencing 28 April 2015 and concluding on 27 April 2017, with a non-parole period of 1 year commencing 28 April 2015 and concluding on 27 April 2016.

28. The Director of Public Prosecutions did not proceed on the offence of possess prohibited drug.

29. The contemnor did not give evidence in his trial, nor did he give evidence before me at the sentence hearing in respect of the contempt charge.

30. In respect of the trial of Misiepo, the Crown case was that he, Misiepo, inflicted the three stab wounds on Mr Martyn which occurred outside a block of home units at Port Macquarie in the early hours of New Year's Day. Immediately before the attack on Mr Martyn, he and his partner, Megan Hill, arrived outside the home unit block, there having been an earlier incident involving Ms Hill. Soon after their arrival, Ms Hill and two other women identified as the Park sisters, who had been staying in the home unit block along with Mr Misiepo and the contemnor, commenced fighting. The Crown case was that Misiepo engaged in fighting Mr Martyn, during which he stabbed the deceased.

A Serious Class of Contempt

31. It is well-established that contempt of court may fall into different categories with different levels of seriousness. InTheMatter of Steven Smith(No 2) [2015] NSWSC 1141, Wilson J observed:

“The authorities have identified different categories of contempt, being technical contempt, wilful contempt and contumacious contempt. The least serious category is that of technical contempt, whilst the most serious is contumacious contempt. This latter category encompasses acts of wilful and intentional defiance of the court's authority, such that the proper administration of justice is diminished.” (at [39])

32. The contempt count against the contemnor in the present proceedings concerns his refusal to take an oath or affirmation preparatory to giving evidence in the proceedings against Chad Frederick Misiepo for the offence of murder. In this respect I note that the then accused, Misiepo, disputed that he was the person who stabbed Mr Martyn. Accordingly, a factual question arose in the trial as to whether the fatal stab wounds were inflicted by Misiepo or by another person. It was suggested to the jury by counsel for Misiepo in his closing address that on the evidence the jury should find that the contemnor, Mr Barnes, was the person who inflicted the fatal wound upon the deceased.

Sentencing Principles: The Offence of Contempt

33. There is no maximum penalty prescribed by statute for the offence of contempt of court, it being a common law offence. Accordingly, the penalty for such an offence is at large.

34. In accordance with the provisions of Pt 55, r 13 of the Supreme Court Rules, the court may impose a fine or a term of imprisonment.

(1)   Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

(2)   …

(3)   The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in the case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.”

35. As observed in the matter of Steven Smith (No 2) to which I have referred, r 13 is a declaratory provision rather than being an exhaustive statement of the penalties that may be imposed: Wilson J's remarks at [38].

Factors Relevant to Sentence

36. The Crimes (Sentencing Procedure) Act 1999 applies to the sentencing of persons convicted of contempt: Principal Registrar of Supreme Court (NSW) v Jando (2001) 53 NSWLR 257; 125 A Crim R 473 at [42]-[45]; R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 at [42] per Johnson J.

37. Accordingly, it is necessary that I consider the general sentencing principles enunciated in s 3A of that Act and the criteria set out in s 21A of that Act insofar as they have application to the present case.

The Objective Gravity of the Offence

38. An assessment of the objective gravity of an offence of contempt has been an essential part of the sentencing process: Steven Smith (No 2) at [42]. As Wilson J observed in that case, the factors to be taken into account in making that assessment in relation to an offence of contempt were stated by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. His Honour there identified ten specific factors. They are:

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.

10. Denunciation of the contempt.

(1) The Seriousness of the Contempt Proved,

39. There is a long line of cases that have recognised and emphasised the serious nature of contempt of court by way of a refusal to be sworn or affirmed or to answer questions. In R v Razzak, at paragraph 39, Johnson J extracted dicta from a number of cases which supports the proposition that it is critical that the authority of the court is not subverted by conduct such as that with which the contemnor in the present proceedings has been charged. In Registrar of Court of Appeal v Raad (NSW Court of Appeal, 9 June 1992, unreported at p 14), the then President, Kirby P, emphasised that the class of contempt involving a wilful refusal to be sworn or affirmed or to answer questions undermines the rule of law in our society.

40. In Smith v The Queen (1991) 25 NSWLR 1; 56 A Crim R 148, Mahoney JA observed at [23]:

“Conduct of this kind will not be deterred by admonition or by gesture: it is necessary that the punishment for it be direct, immediate and exemplary.”

41. In Registrar of Court of Appeal v Gilbey (NSW Court of Appeal, 20 August 1991, unreported), the Court of Appeal stated (at 27):

“It may be accepted that if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the Law will be, and will seen to be, punished.”

42. The contempt in this case was clearly a very serious one. In this case, and in a number of well-known authorities where a person with relevant evidence declines to give evidence, the contempt strikes at the heart of the system of the administration of justice. The contemnor was subpoenaed by the Crown to give evidence in the murder trial involving Misiepo but he persistently refused to cooperate in the trial process, resulting in its frustration in the way to which I shall refer.

43. As I have stated, this contempt occurred in the course of a trial for the very serious charge of murder. The refusal to give evidence did, in my assessment, in the way in which I will shortly refer, have a real tendency to frustrate the administration of justice with respect to the trial in which he was subpoenaed to give evidence.

44. The contemnor's refusal to be sworn or affirmed represented a global refusal by him to comply with his duty, having been subpoenaed by the Crown to give evidence to do so. Such a refusal may be regarded as striking at the heart of the system of the administration of justice.

(2) Whether the Contemnor Was Aware of the Consequences to Himself of What He Did

45. As the summary of the events to which I have referred indicates, the contemnor was made aware of the potential consequences of his refusal to be sworn or affirmed and to give evidence.

45. He was given the opportunity of considering his position and of obtaining legal advice. On 13 October 2015, as I have stated earlier, he had the benefit of the advice of very experienced Senior Counsel but again refused to take an oath or an affirmation.

46. The proceedings were stood over so that he was given the opportunity of reconsidering his position and obtaining further legal advice, and yet he maintained his refusal to give evidence.

(3) The Actual Consequences of the Contempt of the Relevant Trial

48. Submissions were made by Mr Evers on behalf of the contemnor that the refusal of the contemnor to give evidence did not have any real practical effect upon the trial.

49. Ms Baker, on the other hand, in her oral submissions contended that the assertion made by Mr Evers on behalf of the contemnor as to the effect on the trial was "somewhat speculative": Submissions at T 19.

50. In addition to relying upon Exhibits 1 to 4 inclusive, Mr Evers also relied upon particular extracts of the transcript from the trial of Misiepo as a basis for establishing, in his submission, that much of the evidence that could have been adduced from the contemnor was in fact adduced in other ways in the trial. In this respect he relied upon Exhibit 1 and portions of the transcript of Detective Senior Constable Halverson at T 429-432 and 439, T 520-521. Reference was also made to T 550-553 of the Crown Prosecutor's closing address.

51. I have examined Exhibit 1 and the above portions of the transcript of the trial. Exhibit 1 is the transcript of an interview between Detective Senior Constable Sanger and the contemnor. In brief, the first reference of the transcript relates to police investigations at the home unit, including a statement attributed to Pania Park to police that "Reece didn't kill him, he didn't do it". The second transcript includes a reference to a note written by Misiepo said by the Crown at trial to have constituted evidence of an admission by him. The reference to the Crown Prosecutor's closing address relates to a segment where a reference was made by the Crown Prosecutor to evidence that the Crown pointed to as establishing Misiepo as the offender.

52. Mr Evers also referred to evidence going, amongst other things, to the identification of the assailant given by Ms McKenzie and Mr Paine. Those witnesses were subject to fairly extensive cross-examination. The jury was required to carefully assess the accuracy of their observations of fast moving events from a distance.

53. The contemnor's refusal to take an oath or affirmation, involving a deliberate refusal to discharge his obligation to do so, and to give evidence, occurring in the context of a trial for murder involved, in my view, an effective frustration of the administration of criminal justice in the way to which I shall refer. The contemnor's refusal was of particular significance to the trial in which the then accused charged with the offence of murder, now the offender Misiepo, was pursuing a defence based upon the proposition that he was not the stabber and that the jury should consider the contemnor as having been the person who inflicted the fatal stab wound to Mr Martyn.

54. Whilst Detective Constable Rider gave evidence that the contemnor, when interviewed by him, denied having stabbed Mr Martyn, that does not, as Mr Evers argued, in my view, diminish the seriousness of the contempt. The contemnor stated in the presence of the jury, in effect, that he would not give evidence. The jury, of course, was left in the position of not knowing why he refused, though they were instructed that they should not speculate as to the reason or basis for his refusal. Plainly, the contemnor was, on the evidence, present in the vicinity of the attack on Mr Martyn when it occurred and he was therefore in a position to give evidence on the central issue; namely, whether it was Misiepo who inflicted the fatal stab wounds.

55. The fact that Detective Constable Rider gave evidence at the trial as to the contemnor's denial of having stabbed Mr Martyn was, of course, evidence on that question of an entirely different character to sworn evidence that the contemnor was in a position to give. The jury was, of course, directed that caution was required in acting on Detective Rider's evidence of the above denial by the contemnor given that it was an unsworn out of court statement attributed to the contemnor that was not capable of being tested by cross-examination. I refer in that respect to the summing-up at page 74. When so considered, the contemnor's contempt conduct in refusing to give evidence had, in my view, a real tendency to frustrate the administration of criminal justice in the Misiepo trial, and it carried the serious potential of deflecting the jury from being in a position to effectively discharge its important function in determining the facts alleged by the prosecution on sworn eyewitness evidence.

56. Whilst the Crown case relied upon a considerable amount of circumstantial evidence, some of which was referred to in the extracts in the transcript relied upon by Mr Evers, that does not, in my opinion, mitigate the fact that refusal by the contemnor, as a key witness, to give evidence placed a significant obstacle in the path of the jury's deliberations in determining the factual findings to be made in reliance upon circumstantial and other evidence.

57. The fact that the jury ultimately was able, on the evidence, to arrive at a guilty verdict does not, in my assessment, reduce the seriousness of the contempt. The jury did not have available to it the contemnor's sworn evidence on the issue as to the stabbing of Mr Martyn to assist them in resolving issues concerning criminal liability as alleged in the proceedings. It may be readily inferred that the jury would have been troubled and concerned by the contemnor's unwillingness to give evidence from the witness box, the defence case being conducted on the basis to which I have earlier referred. A jury, of course, should in no circumstances be obstructed or hindered in any way by the deliberate refusal of a key witness to give evidence.

58. Mr Evers placed much emphasis upon the fact that the evidence of witnesses such as Ms McKenzie and Mr Paine, and the circumstantial evidence as well as DNA evidence, enabled the Crown to construct its case, as I have already referred to. Whilst it is, of course, the case that the Crown was in a position to adduce evidence from a number of sources, nonetheless without sworn and tested evidence from the key witness I do not consider those matters are definitive on the issue presently under consideration.

59. The jury's task of assessing the evidence in order for it to be satisfied to the requisite standard that the contemnor had not inflicted the fatal wound to Mr Martyn but that the offender Misiepo had done so, was, as I have stated, significantly obstructed by the contemnor's refusal to give evidence on what became the sole ground of defence. The fact that the jury deliberated for in excess of three days is, in the circumstances, understandable.

60. As I have previously noted, not only was the contemnor given the opportunity to seek legal advice concerning his obligations and his refusal but he also had the benefit of advice from Ms Manuell SC who, it is plain, fully advised him of the consequences of his refusal to take an oath or an affirmation and give evidence. He was granted an adjournment in order to permit this to be done. Notwithstanding advice and being made aware of the position before he was charged, the contemnor maintained and continued his refusal to take an oath or affirmation or to participate in the proceedings.

61. Accordingly, it is plain that the contemnor was well aware of the consequences of his actions in refusing to be sworn or affirmed on 13 October 2015.

(4) Whether the Contempt was Committed in the Context of Serious Crime

62. As to the issue of whether the contempt was committed in the context of a serious crime, it is clear that the contempt was committed in the most serious context of a murder trial.

(5) The Reason for the Contempt

63. The contemnor did not give evidence in the proceedings before this Court. The evidence contained in Exhibits 2, 3 and 4, being, respectively, the transcript of a listening device recording made on 8 January 2014, and the intercepted calls on 11 February 2014 between the contemnor and "Brendan", and an intercepted telephone call on 4 February 2014 between the contemnor and his father, provides some evidence of his determination not to divulge evidence to investigating police for fear of retribution. I am prepared to accept that the contemnor was influenced, at least in part, in his refusal to take an oath or an affirmation or to give evidence of a fear that there could be reprisals upon himself.

64. It is accepted that although a subjective apprehension of danger is not sufficient to constitute duress, it may be taken into account in mitigation of penalty where a contemnor is guilty of contempt. I refer to the decisions in Wood v Galea (1997) 92 A Crim R 287 at 291, Trad v Pickles Auction Pty Limited, supra, at [16]; R v Razzak, supra, at [63].

65. Accordingly, if the contemnor acted as he did by reason of a subjective fear, that is a matter capable of operating, as I have said, as a mitigating factor on sentence for contempt of court. As was noted in Razzak at [64], this principle is reflected in s 21A(3)(d) of the Crimes (Sentencing Procedure) Act which provides, as a mitigating factor on sentence, circumstances where "the offender was acting under duress". In Razzak, Johnson J observed that clearly the word "duress" in this provision relates to partial duress in the sense of subjective fears in accordance with the first leg stated in R v Aubusafiah, (1991) 24 NSWLR 531; 56 A Crim R 424.

66. There is no evidence from the contemnor himself in these sentencing proceedings on this question other than the material to which reference was made by Mr Evers in his submissions contained in the exhibits in the proceedings, Exhibits 2, 3 and 4. I accept that the contemnor did have a concern or apprehension that if he disclosed information concerning the offender Misiepo's participation in the events leading to the death of Mr Martyn he could be the subject of reprisals. Accordingly, I accept that there was some measure of subjective fear in him at the time when he committed his contempt. I have, accordingly, taken this matter into account in determining the sentence to be imposed.

(6) Whether the Contemnor has Received any Benefit by Indicating an Intention to Give Evidence

67. As to whether the contemnor received any benefit by indicating an intention to give evidence, that factor is not relevant in the present proceedings.

(7) Whether there was any Apology or Public Expression of Contrition

68. There has been no apology offered by the contemnor, nor has there been any expression of contrition.

69. In that respect I note that the contemnor, as I have stated, was given a further opportunity to reverse his refusal to give evidence when he was called to give evidence during the trial itself. Although he was not further charged with contempt on that occasion, this did represent a further opportunity for him to, in effect, purge his earlier contempt, but he did not do so.

70. I have, of course, also taken into account the factors under s 21A of the Crimes (Sentencing Procedure) Act insofar as they are relevant. In particular, I take into account the fact that the contemnor has pleaded guilty to the charge, a matter to which s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act refers. Some limited utilitarian value, in my view, attaches to the plea. Such value is at the lower end of the scale that might be envisaged. It might be said there was some limited saving of court time by reason of the plea. In the circumstances, I consider a modest allowance only should be made for the plea of guilty in the circumstances of this case.

(8) The Character and Antecedents of the Contemnor

71. As to the character and antecedents of the contemnor, I have previously referred to the fact that the contemnor is presently aged 27 years of age, 26 years at the time of the attack on Mr Martyn, and I have identified the evidence tendered by Mr Evers at the sentencing hearing. I have had regard to the other exhibits as to the contemnor's background. There is no other evidence by way of his background or personal information.

(9) General and Personal Deterrence

(10) Denunciation of the Contempt

72. I turn to the issue of general and personal deterrence. Each of these matters, and the need for denunciation of the contempt, assume relevance in the present case. I consider there is a need in determining the appropriate punishment to take into account and to give effect to considerations of general and personal deterrence, and to denunciate the serious contempt by the contemnor.

73. I have referred to the contemnor's criminal antecedents earlier. Whilst, as I have indicated, the contemnor's history of offending is limited, it is not a theoretical possibility, in my view, that at some future time the contemnor may find himself as a potential Crown witness with respect to some other crime. I do not, however, put this possibility at a high level. I bear in mind the absence of any expression of contrition or remorse as an important aspect in relation to the issue of personal deterrence.

74. I consider that general deterrence is an important factor in determining sentence in the present case. It is well-accepted that persons who are called as witnesses in criminal proceedings must understand that significant consequences will flow from a refusal to be sworn or affirmed or to give evidence, referring in that respect, as I do, to Court of Appeal, Registrar v Gilbey (NSW Court of Appeal, 40172 of 1991, 20 August 1991, unreported). Johnson J in Razzak also observed at [78]:

“If witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that in this regard, disobedience of the law will be, and will be seen to be, punished.”

75. In Gilbey, supra, strong emphasis was placed by the court in that case upon the duty of citizens to give evidence in criminal trials.

76. Johnson J in Razzak further observed at [81]-[82]:

“The response of the justice system to these circumstances must be to facilitate the giving of evidence by witnesses and to minimise the effects of intimidation. This can be done by various means, including the use of witness protection (for witnesses in the community), protective custody (for witnesses in custody) and the giving of evidence from a remote location by audio-visual link. Other protective measures are no doubt also available to the authorities.

In addition to these measures, however, it is important that the courts send a message that refusal by a witness to give evidence in criminal proceedings, through fear or otherwise, will not be treated lightly.”

77. The operation of the principle of general deterrence in relation to contempt of the kind to which the contemnor has entered a guilty plea makes plain to future witnesses in criminal trials that a refusal to give evidence will be met by stern penalties, and for this purpose it is accepted that in order to vindicate the criminal justice system a meaningful sentence to denounce a contempt of this class should be considered. I refer in that respect to his Honour's observations in Razzak at [86].

Determination of Punishment

78. I have given close consideration to the submissions that have been made on sentence. I have been referred to sentences imposed in other cases for contempt of the kind with which this case is concerned. Those cases refer to a wide range of sentencing outcomes. As has been observed, comparative cases do not so much provide "any safe guide to the proper tariff or punishment for contempt of court. This is because both the nature of the contempt itself and its consequences vary so greatly in different cases": Wood v Galea, supra, at 277 per Hunt CJ at CL. See also Registrar of Supreme Court (NSW) v Tran [2006] NSWSC 1183; 166 A Crim R 393 per Buddin J at [36]-[40].

79. In the present case, notwithstanding the subjective features of the contemnor's case, I have come to the view that no penalty other than a full‑time custodial sentence should be imposed.

80. I am mindful, of course, of the fact that the contemnor is currently serving a sentence. In determining sentence in respect of the charge of contempt of court, any sentence to be imposed must have regard to the terms of the sentence imposed in respect of the drug offences to which I have earlier referred.

81. In determining sentence I have regard, firstly, to the non-parole and parole periods to which the contemnor is presently subject under the sentences imposed upon him by the Port Macquarie District Court for the supply of prohibited drug, being, as I have earlier stated, a sentence of 2 years imprisonment commencing 28 April 2015 and expiring 27 April 2017, with a non-parole period of 1 year commencing 28 April 2015 and concluding on 27 April 2016.

82. Accordingly, under that sentence the contemnor will be eligible for parole on 27 April 2016.

83. Section 47 of the Crimes (Sentencing Procedure) Act contains provisions concerning the commencement of sentences. Section 47(2) is in the following terms:

“A court may direct that a sentence of imprisonment:

(a)   is taken to have commenced on the day occurring before the day on which the sentence is imposed, or

(b)   commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.”

84. Section 47(2) is to be read in the light of s 47(4), which is in the following terms:

“The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of information currently available to the court) that the offender:

(a)   will become entitled to be released from custody, or

(b)   will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject.”

85. The provisions of s 47(2)(b) set out above, accordingly, are relevant to the present case.

86. In determining the sentence to be imposed I take into account the following matters:

1. The fact that the contemnor is presently serving a non-parole period under the sentence imposed by the District Court.

2. The District Court in respect of that sentence made a finding of special circumstances in terms of s 44(2) of the Crimes (Sentencing Procedure) Act and varied the statutory ratio in respect of the non-parole and parole periods for that offence. The special circumstances included the assessed need for a longer period of supervision on parole.

3. The head sentence imposed by the District Court for the drug supply offence was clearly an important aspect of the sentencing process undertaken by the District Court.

4. In the circumstances of this case there is a need:

1. for the imposition of an appropriate non-parole period that gives effect to the principles of general deterrence.

2. in imposing a sentence for the subject offence there is a need to avoid a sentence that defeats the purpose of the sentencing judge's decision in the District Court, which impliedly recognised the need for a 12 month parole period.

87. It is, in my assessment, appropriate that a finding of special circumstances be made under s 44 of the Crimes (Sentencing Procedure) Act in respect of the sentence now to be imposed so as to vary the statutory ratio of the non-parole and parole periods. The basis for such a finding, as sought on behalf of the contemnor, and accepted in the submissions of Ms Baker, is the need for provision to be made in the sentencing for an appropriate accumulation and concurrency in respect of the District Court sentence and the sentence to be imposed. On that basis I do make a finding of special circumstances.

87. The sentence which I will impose is to commence upon the expiry of the non-parole period for the sentence imposed by the District Court; namely, on 27 April 2016. It will include a non-parole period of 10 months, with a parole period of 12 months, which I note is consistent with the length of the parole period that was determined by the District Court in respect of the supply drug offence.

88. I make the following orders:

1. Reece George Barnes, in respect of the charge of contempt of court you are convicted.

2. You are sentenced to a term of imprisonment for 1 year and 10 months to commence on 28 April 2016 and to expire on 27 February 2018, comprising a non-parole period of 10 months to commence on 28 April 2016 and to expire on 27 February 2017, with a parole period of 12 months to expire on 27 February 2018. The first date upon which you will be eligible for parole, accordingly, is on 28 February 2017.

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Decision last updated: 03 March 2016