Lusty v CRA20

Case [2020] FCA 1737

FEDERAL COURT OF AUSTRALIA

Lusty v CRA20 [2020] FCA 1737  

File number: NSD 653 of 2020
Judgment of: ABRAHAM J
Date of judgment: 3 December 2020
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 answer questions in examination – where respondent pleaded guilty – where respondent did not subsequently purge contempts despite opportunities to do so – where summons no longer extant - fixed term of imprisonment imposed  
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7, 7C, 20, 21, 22, 28, 30, 34A, 34B, 46B

Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 4) 2018

Criminal Code (Cth) Part 9.1, Division 400

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 BYF19 [2019] FCA 1959

Anderson v DKH18 [2018] FCA 1571

Anderson v DKH18 (No 2) [2019] FCA 1352

Anderson v GPY18 [2019] FCA 954

Anderson v XLVII [2015] FCA 19

Australian Competition and 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 et al (No 2) [2011] WASC 26; (2011) 205 A Crim R 386

Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366

Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90

Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494

R v Drever [2010] SASCFC 27

R v Smith (1987) 44 SASR 587

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596

Von Doussa v Owens (No 3) (1982) 31 SASR 116

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567

Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 62  
Date of last submissions: 23 November 2020
Date of hearing: 9 November 2020
Solicitor for the Applicant: Mr C Hutchins of Australian Government Solicitor
Counsel for the Respondent: Mr D McMahon
Solicitor for the Respondent: Murphy’s Lawyers Inc

ORDERS

NSD 653 of 2020
BETWEEN:

DAVID LUSTY, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant
AND:

CRA20

Respondent

ORDER MADE BY:

ABRAHAM…

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Details
AGLC
Lusty v CRA20 [2020] FCA 1737
Case
[2020] FCA 1737
Decision Date

CaseChat Overview and Summary

The respondent in this case was summoned to appear before the Federal Court for an examination conducted by the Australian Criminal Intelligence Commission (ACIC). The respondent pleaded guilty to charges of contempt of court for refusing to answer questions during the examination, despite being informed of the consequences and given multiple opportunities to seek legal advice. The ACIC, established under the Australian Crime Commission Act 2002, is responsible for collecting and analysing criminal intelligence and conducting special operations related to federally relevant criminal activity. The examination in this case was part of a special operation concerning high-risk and emerging drugs.

The court was required to determine an appropriate sentence for the respondent's contempt, considering factors such as the seriousness of the offence, the respondent's deliberate and repeated refusal to answer questions, and the impact of his conduct on the ongoing investigation. The court also needed to assess the mitigating factor of the respondent's claimed fear for his safety, which was deemed insufficient to warrant significant weight in sentencing.

The court imposed a fixed term of imprisonment of eight months for the respondent, noting that this sentence would be reconsidered if the respondent chose to purge his contempt. The court highlighted the importance of the ACIC's examination process in obtaining information relevant to their functions and the necessity of general deterrence in such cases. The court also emphasised that generalised fears of retribution do not constitute a valid reason for refusing to provide information, as it would impede the exercise of powers to investigate criminal activities.

The court ordered the respondent to be imprisoned for eight months, with the custodial period running from 3 December 2020 to 2 August 2021. A warrant for the respondent's committal to prison was to be issued, and the parties were at liberty to apply if the respondent chose to purge his contempt. Additionally, the respondent was to pay the applicant's costs of the application if not agreed upon. The orders previously made prohibiting the publication of the respondent's name and suppressing access to the court file were to continue.

Orders

Orders of the court

1. The respondent is to be imprisoned for a period of 8 months.

2. The custodial period of 8 months imprisonment is to date from 3 December 2020 to 2 August 2021.

3. A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.

4. The parties be at liberty to apply in the event that the respondent purges his contempt.

5. The orders previously made prohibiting the publication of the respondent’s name, and suppressing access to the court file are to continue.

6. The respondent is to 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.

Background

Background to the litigation

In that submission the respondent objected to [25(b)] and [25(c)] of the affidavit of Shane Douglas Neilson on the basis that it is outside the leave granted, and that in any event, it contains opinions of such generality as to be of no real probative value. Those paragraphs are outside the leave granted, and, if evidence was sought to be led on those topics it ought to have been done in chief. The paragraphs are also of a general nature. That said, for the reasons given below, even if those paragraphs were considered they do not affect the result. Statutory and regulatory background The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c). The Board of the ACIC has issued a number of determinations about high risk and emerging drugs and has determined that they are special operations. Relevantly, the examination in this matter was for the purposes of a Special ACIC Operation being undertaken by the ACIC pursuant to the Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 4) 2018. This instrument authorised an intelligence operation to determine whether federally relevant criminal activity had been committed, was being committed or may be committed; and if so, the nature and extent of the activity and the identity and role of entities involved in it. The intelligence operation concerned activities connected with high risk and emerging drugs, including offences under Part 9.1 (serious drug offences) of the Criminal Code (Cth) (Criminal Code) punishable by 3 years imprisonment or more and a range of offences connected with a course of activity involving the commission of the above mentioned offences, such as money laundering offences contrary to Division 400 of the Criminal Code. In carrying out the ACC functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 20-22 of the ACC Act. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28 of the ACC Act. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30 of the ACC Act. It is evident that the examination of persons by examiners, such as the respondent in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: Anderson v DKH18 [2018] FCA 1571 (DKH18) at [6]; Anderson v XLVII [2015] FCA 19 (XLVII) at [15].

Evidence

Evidence Before The Court

For the reasons set out below, I am satisfied that a fixed sentence of imprisonment is appropriate in the present case and I impose a term of imprisonment of 8 months. I order that there be liberty to apply if the respondent chooses to purge his contempt and if that were to occur I would reconsider the sentence and subject to any further submissions, would be minded to suspend the remainder of the sentence.Evidence In support of the application the applicant relied on the following material at the hearing: (1)originating application dated 10 June 2020;(2)statement of charge dated 10 June 2020;(3)affidavit of [REDACTED] affirmed on 4 June 2020;(4)affidavit of Cameron Hutchins sworn 24 September 2020;(5)outline of submissions dated 25 September 2020;(6)an aide memoire of comparative sentences. In addition, filed after the hearing with leave, was the affidavit of Shane Douglas Neilson sworn 13 November 2020. The respondent relied on the following material: (1)outline of submissions filed on 29 October 2020;(2)character references from his employer dated 21 October 2020, a work colleague dated 23 October 2020, and his sister dated 21 October 2020. Following the filing of the affidavit of Shane Douglas Neilson dated 13 November 2020 by the applicant the respondent, with leave, filed supplementary submissions on 23 November 2020. In that submission the respondent objected to [25(b)] and [25(c)] of the affidavit of Shane Douglas Neilson on the basis that it is outside the leave granted, and that in any event, it contains opinions of such generality as to be of no real probative value. Those paragraphs are outside the leave granted, and, if evidence was sought to be led on those topics it ought to have been done in chief. The paragraphs are also of a general nature. That said, for the reasons given below, even if those paragraphs were considered they do not affect the result. Statutory and regulatory background The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c). The Board of the ACIC has issued a number of determinations about high risk and emerging drugs and has determined that they are special operations. Relevantly, the examination in this matter was for the purposes of a Special ACIC Operation being undertaken by the ACIC pursuant to the Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 4) 2018. This instrument authorised an intelligence operation to determine whether federally relevant criminal activity had been committed, was being committed or may be committed; and if so, the nature and extent of the activity and the identity and role of entities involved in it. The intelligence operation concerned activities connected with high risk and emerging drugs, including offences under Part 9.1 (serious drug offences) of the Criminal Code (Cth) (Criminal Code) punishable by 3 years imprisonment or more and a range of offences connected with a course of activity involving the commission of the above mentioned offences, such as money laundering offences contrary to Division 400 of the Criminal Code.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In GPY18 at [29] Banks-Smith J provided an analysis of some of the sentences imposed for the offence of contempt, including for the refusal or failure to answer questions, which reflects the breadth of the sentencing options.Consideration The respondent’s contempt was deliberate. The respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to speak to his counsel to obtain legal advice and to consider that legal advice. In the context of the statutory scheme, this offence of contempt is properly characterised as serious: see for example: DKH18 at [18]-[24]. As I observed in BYF19 at [54], the respondent’s approach in refusing to answer questions undercuts the effectiveness of the scheme which authorises these compulsory examinations. The examination processes would be hamstrung if all witnesses adopted the approach that the respondent has taken. The investigations of which the examination was a part, are of significant importance to the protection of the broader community. The serious impact on the community of illicit drug use and supply, and associated crime is uncontentious. General deterrence must necessarily play a prominent role in any such sentence. The special intelligence operation is ongoing and the applicant deposed that a delay in the continuation of the examination has already impacted adversely on the ACIC’s ability to obtain and analyse current intelligence relating to the special operation. The respondent took issue with the evidence presented by the applicant, which resulted in leave being granted to the applicant to file additional material. I will return to this topic below. That said, I am satisfied that the respondent’s conduct frustrated and impeded the examination and, in turn, the progress of the ACIC investigation. The respondent has chosen not to purge his contempt despite subsequently being given repeated opportunities to do so. In the context of declining to give any reason for the refusal to answer the questions, when asked by the applicant if he had any fears or concerns, the respondent said “Just for my safety, that’s it”, but when invited to elaborate on that by the applicant, he declined to do so. It is also apparent from the transcript of the examination that his counsel informed the applicant that that was the respondent’s instructions to him, and that it also related to the safety of his family. It is well established that fear of retribution will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43]; Hannaford (No. 2) at [33]; BFY19 at [58]-[61]. This is because the exercise of such powers as possessed by the ACIC to facilitate the investigation of matters of this nature would be significantly impeded if mitigating weight were to be given to an assertion of fear of retribution as a reason for refusing to provide information. This fear expressed was no more than a generalised fear. There is no evidence of any specific threat having been made to either the respondent or his family. That was so at the time of the questioning and continues to be the case at the time of sentence. It is based on what is really seen to be inherent in being involved with criminal activity of the type being investigated: BFY19 at [63]. As was the case in GPY18 and Hannaford (No 2) and BFY19, the respondent offers no more than a generalised fear which, in the assessment of mitigation, cannot be given any real weight.