NSW Crime Commission v Field

[2003] NSWSC 5

CITATION:	NSW Crime Commission v Field [2003] NSWSC 5
HEARING DATE(S):	5/4/02, 26/4/02, 17/5/02, 23/5/03
JUDGMENT DATE:	29 May 2003
JUDGMENT OF:	Bell J at 1
DECISION:	Sentenced to a term of twelve months' imprionment; That sentence is to be taken to commence on 5 June 2007 and to expire on 4 June 2008
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Assets Recovery Act 1990 Drug Trafficking Civil Proceedings Act 1990 Sentencing Act 1989 Supreme Court Rules 1970
CASES CITED:	New South Wales Crime Commission v Johns (unreported) NSWSC, 5 June 1997 New South Wales v Whiley (1993) 31 NSWLR 314 R v Duncan [2000] NSWSC 440 R v Smith (1987) 44 SASR 587 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 Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 Reid v Howard (1995) 184 CLR 1 Wood v Galea (unreported) NSWSC, 29 February 1996
PARTIES :	NSW Crime Commission (Plaintiff) Malcolm Gordon Field (Defendant)
FILE NUMBER(S):	SC 11852/01
COUNSEL:	Ms E L Fullerton SC (Plaintiff) Mr G Jones (Defendant) Mr S Hanley (Defendant)
SOLICITORS:	Mr J M Giorgiutti Solicitor (Plaintiff) Paul Hardin, Hardinlaw - Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 29 May 2003

11852/01 New South Wales Crime Commission v Malcolm Gordon Field

JUDGMENT

1 BELL J: By notice of motion filed on 22 August 2001 the New South Wales Crime Commission (“the Commission”) claims the following orders:

(i) That the respondent be found guilty of contempt of this Court for failing to comply with the Order of this Court made by Justice Simpson on 4 July 2001 that he be examined on oath before a Registrar pursuant to s 12(1) of the Criminal Assets Recovery Act.
(ii) That the respondent be committed to imprisonment for disobeying the said Order and that a warrant issue (sic) accordingly.
(iii) That the Sheriff be directed to bring the respondent before the Court before taking the respondent to the place of imprisonment.

2 The proceedings were brought pursuant to Pt 55 r 7 of the Supreme Court Rules 1970 (“the SCR”). The statement of the charge, which is annexed to the notice of motion is in these terms:

“The respondent is guilty of contempt of the Court in that in breach of the Order made by Justice Simpson on 4 July 2001 he refused to be examined on oath before a Registrar of this Court at 10:00 am on Monday 13 August 2001 being the time and date appointed by Deputy Registrar Bhaskari Sivagnana for the examination ordered by Justice Simpson.”

3 In support of the charge the Commission relied on the affidavit of Inese Holz, sworn on 22 August 2001. Ms Holz is an accountant employed as a senior financial investigator with the Commission. She was cross-examined. The essential features of her evidence were not the subject of challenge.

4 On 4 July 2001 Simpson J made orders in respect of the respondent’s interests in property and the interests in property of other named individuals pursuant to s 10 of the Criminal Assets Recovery Act 1990 (the Act). Her Honour also made orders pursuant to s 12(1) of the Act, including that the respondent be examined on oath before a Registrar concerning his affairs and the affairs of a number of identified persons and entities. The Commission was given leave to approach the Court to appoint a time and date for the examination on oath of the respondent. A copy of those orders is annexed to Ms Holz’ affidavit.

5 On 13 July 2001 the respondent was served with a copy of the orders.

6 On 31 July 2001 Deputy Registrar Bhaskari Sivagnana ordered that the respondent attend before a Registrar of the Court in Sydney at 10:00 am on Monday 13 August 2001 and at any adjourned date thereafter for his examination on oath.

7 On 13 August 2001 Ms Holz was present at the Supreme Court when the respondent appeared for his examination before Deputy Registrar Younes. Annexed to her affidavit is a transcript of the proceedings on that day. Relevantly the transcript records the following:

“Fullerton: I call Malcolm Gordon Field.
Deputy Registrar: He would need to give evidence from this part here. Thank you sir. May the witness be sworn please.
Court Officer: Mr Field, would you like to swear the oath or make an affirmation?
Deputy Registrar: Sir, you’ll have to respond to what the Court Officer has asked you.
Jones: Registrar, I can indicate for the convenience of the Court my instructions are that this examinee wishes to remain silent until after completion of his criminal trial. He is currently confronting the Court on criminal charges, serious criminal charges, and I understand on instructions that will be the position he’ll be taking in respect of these proceedings and …
Deputy Registrar: Does he know though that it is not a ground?
Jones: He knows it is not a ground.
Deputy Registrar: I presume you have advised him that …
Jones: And I have had a conference with him this morning with my solicitor and he has been made aware of the implications and the primary implication is that it could result in a contempt charge …
Deputy Registrar: Yes, it will be.
Jones: … and following from that would be some form of custodial order.
Deputy Registrar: Yes.
Jones: And he has been made aware of that and I’ll make that as a matter for the record now.
Deputy Registrar: OK. Ms Fullerton, do you wish to address me on that issue at all?
Fullerton: No, I don’t Madame Registrar. If that is the position that my learned friend advances on behalf of the examinee and that the examinee is aware both of his obligation and that a criminal contempt can be found against him by reason of the position he takes, I don’t need to address you further, save as to ask that Mr Field’s contempt proceeding, because it is a contempt in the face of this Court, be stood over to one day next week in order that a notice of motion might be made returnable on that day and the matter be processed in accordance with Pt 55 of the Supreme Court Rules.
Deputy Registrar: I’ll just give him a warning.
Fullerton: I think you should do that.
Deputy Registrar: If you don’t answer any questions that are put to you today, there is a possibility, indeed a probability that you will be found of criminal contempt of this Court, do you wish to pursue the line of action that you are taking at the moment, namely that you don’t answer any questions?
Jones: I’m instructed that‘s the case, Registrar.”

8 The proceedings came on before me for hearing on 5 April 2002. There was no issue as to the accuracy of the transcript of the proceedings before the Registrar.

9 Mr Jones, who appeared on the respondent’s behalf, contended that the respondent had a reasonable excuse for refusing to be examined. In written submissions he put it this way:

“Field’s excuse is that he wishes to remain silent until after his criminal trial. It is submitted that he has a reasonable belief that the NSW Crime Commission is actively involved in his criminal prosecution and that there could be derivative use of anything he may say under compulsion to his prejudice at his criminal trial.”

10 It is necessary to refer to the history of the criminal proceedings and the confiscation proceedings in order to put Mr Jones’ submission in context.

11 The respondent was arrested on 5 January 2001 following a joint investigation involving the Commission, the Australian Federal Police and the New South Wales Police Service. He was charged with a number of offences arising out of the importation into Australia of approximately 34 kilograms of methylenedioxymethamphetamine (commonly known as ecstasy).

12 On 10 January 2001 the Commission obtained an order restraining all of the respondent’s interests in property pursuant to s 10 (2)(a) of the Act based upon the suspicion that the respondent had engaged in serious crime related activity.

13 On 27 March 2001 the proceedings were settled. Consent terms were filed in court.

14 The confiscation proceedings commenced on 4 July 2001 sought to restrain specified property pursuant to s 10(2)(b) of the Act. The orders obtained in these proceedings related to the suspicion that a person named Ricky Montgomery was engaged in serious crime related activity.

15 The application before Simpson J was supported by the affidavit of Mark William Standen sworn on 3 July 2001. Mr Standen is the Assistant Director, Investigations of the Commission. A copy of Mr Standen’s affidavit was annexed to the affidavit of Ms Holz.

16 At the respondent’s trial on the charges arising out of his arrest on 5 January 2001 it was anticipated that the Crown would call Mr Standen in its case.

17 Mr Jones invited me to approach the question of whether the Commission had established the respondent’s guilt upon the footing that the respondent may reasonably have feared that the Commission was employing the confiscation proceedings as a device to identify avenues of investigation so as to gather additional evidence to be used at his trial. The circumstance that further confiscation proceedings had been commenced seeking an order for the examination of the respondent, after the settlement of the proceedings relating to his interests in property, was said to lend colour to such a view. As was the fact that the Commission was involved in the investigation of the criminal proceedings.

18 Section 13 of the Act operates to abrogate the privilege against self-incrimination with respect to examinations conducted under s 12 of the Act. Relevantly it provides:

“13(1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that:

(a) the answer or production might incriminate, or tend to incriminate the person or make the person liable to a forfeiture or penalty; or

(b) production of the document would be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document, or

(c) the answer or production would disclose information that is the subject of legal professional privilege.
(2) A statement or disclosure made by a person in answer to a question put in the course of an examination under section 12, or any document or other thing obtained as a consequence of the statement or disclosure, is not admissible against the person in any civil or criminal proceedings except proceedings that comprise:

(a) proceedings in respect of the false or misleading nature of a statement or disclosure made under this Act; or

(b) proceedings on an application under this Act; or

(c) proceedings ancillary to an application under this Act; or

(d) proceedings for enforcement of a confiscation order; or

(e) in the case of a document or other thing – civil proceedings for in respect of a right or liability it confers or imposes.”

Mr Jones sought to deal with s 13 in this way. Section 13(1) provides that the topics addressed in subparagraphs (a) to (c) do not constitute matters of lawful excuse for a refusal to answer questions at an examination. This was said not to exclude that a person may have a lawful excuse for refusing to answer questions by reason of some right or priviledge not caught by the terms of s 13(1) (a) to (c).

19 Mr Jones took me to a number of well known authorities dealing with the privilege against self-incrimination and in particular to the judgment of Deane J in Reid v Howard (1995) 184 CLR 1 at 6 in which his Honour discusses “derivative use” in the context of the scope of the privilege. He submitted that the terms of s 13(2) might not afford adequate protection to the respondent against the derivative use of any answers given by him (or of any document or thing produced by him) at his trial.

20 I was invited to infer, in the absence of any evidence, that it was the fear of derivative use being made of any answers that he gave that led the respondent to refuse to be examined and that this was a matter of reasonable excuse constituting a defence to the charge of contempt.

21 It is not self evident that any concern as to derivative use being made of an answer to a question (or the production of a document or thing) given at a s 12 examination falls outside the terms of s 13(1)(a). It is a concern that the answer (or production) might tend to incriminate the person.

22 The contempt charged against the respondent is his wilful refusal to comply with the terms of the order made by Simpson J that he be examined before the Registrar. There is no issue about the fact that the respondent declined to be examined and that his decision so to do involved a deliberate exercise of will on his part. He did not take an objection to answering a particular question or questions on the ground of any claimed privilege. He refused to be sworn or affirmed.

23 As I have noted, there was no evidence before me that the respondent’s refusal stemmed from a fear that any evidence that he gave might be used to shore up the Crown case at his trial. The existence of such a fear conscientiously held might bear on the question of sentence, I am not persuaded that it would afford a defence to the charge.

24 I am satisfied beyond reasonable doubt that the respondent was required by the order made by Simpson J on 4 July 2001 to submit to an examination before the Registrar pursuant to s 12(1) of the Act. I am satisfied beyond reasonable doubt that he wilfully failed to comply with the terms of that order by refusing to take the oath or to make an affirmation when called before Deputy Registry Younes on 13 August 2001. I find the respondent to be guilty of the contempt charged and I convict him of that offence.

25 I turn now to a consideration of the appropriate punishment for his contempt.

26 Part 55 r 13 of the SCR provides:

“(i) Where the contemnor is not a corporation, the court may punish contempt by committal to a correctional centre or fine or both.
…
(iii) The court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in 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.”

27 In Attorney-General forNew South Wales v Whiley (1993) 31 NSWLR 314 the Court observed at 320:

“A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 at 314:
‘ … 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.’
Being a common law offence there is no statutory maximum penalty. Punishment for contempt is referred to in Supreme Court Rules 1970, Part 55 Rule 13(1) but, as was said in Registrar of the Court of Appeal v Maniam [No 2] , this rule confirms the court’s power of punishment but does not exhaust it.”

28 In Whiley the Court found that there were strong policy reasons for applying the Sentencing Act 1989 to the sentencing of persons convicted of contempt. Thus, a contemnor sentenced to imprisonment may be afforded the opportunity of release on parole.

29 In Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 Studdert J referred to a number of cases decided after Whiley in which contemnors had been sentenced pursuant to the provisions of the Sentencing Act. Jando was dealt with after the commencement of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). Studdert J considered that there was no reason in principle why the considerations that had led the Court of Appeal to hold that the Sentencing Act applied to the sentencing of contemnors should not lead to the application of the Sentencing Procedure Act in such cases. No contrary submission was advanced before me. I proceed upon the basis that in sentencing for the common law offence of contempt it is appropriate to apply the provisions of the Sentencing Procedure Act.

30 In Registrar of theCourt of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Kirby P observed at 314 and 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 appropriately 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 LR 1422 (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.”

31 The factors to be taken into account in punishing for the offence of contempt of court, in the context of a deliberate refusal to give evidence, were enunciated in Registrar of the Court of Appeal v Gilby (unreported) NSWCA, 20 August 1991 as follows at 26 - 29:

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 contempt was motivated by fear of harm should evidence be given;
5. Whether the contemnor had received a benefit by indicating an intention to give evidence.

32 It is apparent that some of the considerations in Gilby have greater relevance to a case where the refusal occurs in the context of a criminal trial.

33 The contempt in this case is a serious offence in that it involved a conscious defiance of the authority of the Court. I am satisfied that the respondent was aware of the consequences of his refusal. It is apparent that he had received advice and that he chose to take the course that he did. The Parliament has enacted a scheme for the confiscation of the proceeds of criminal activity. An important part of that scheme is the provision for the compulsory examination of persons pursuant to s 12.

34 In Mr Jones’ submission the refusal to give evidence at a s 12 examination is to be viewed as a less serious contempt than the refusal to give evidence at a criminal trial. It seems to me that the objective seriousness of a contempt arising out of a refusal to testify must be judged by the circumstances of each case. This is consistent with the observations in Wood v Galea (unreported) NSWSC, 29 February 1996. In that case Hunt CJ at CL reviewed a number of cases involving a deliberate refusal to give evidence. Galea had refused to give evidence before the Royal Commission into the New South Wales Police Service. His Honour, while not categorising the contempt as within the worst class of case, considered that it was a most serious category of contempt. In coming to this view he took into account the purpose for which the Royal Commission had been established and that the Galea’s stance was one that seriously frustrated the progress of its investigations. A sentence of two years and three months imprisonment was imposed in that case. I consider the contempt in Galea to have been of a more serious character than the present case.

35 In Gilby the contemnor refused to give evidence on behalf of the prosecution at the trial of a co-offender. He claimed to have been threatened in connection with giving evidence. The Court did not accept that he had been acting under duress at the time of his refusal. However it was accepted that Gilby had some general apprehension as to what may befall him in the event of giving evidence against his co-accused. A fixed term of imprisonment for six months was imposed in that case.

36 In Jando, Studdert J sentenced the contemnor to twelve months imprisonment to be served by way of periodic detention. Jando had refused to answer questions when called on behalf of the prosecution at a criminal trial. He had previously pleaded guilty in respect of the subject offences and given an undertaking to give evidence at the trial of his co-offenders. He was aged seventeen at the time he gave the undertaking and eighteen at the time of the refusal to give evidence. Studdert J approached that matter upon an acceptance that Jando had been influenced in his refusal by an apprehension that if he gave evidence adverse to his co-offenders reprisals may be visited on him or on his family.

37 In R vDuncan [2000] NSWSC 440 Dowd J sentenced the contemnor to a fixed term of two months imprisonment. In that case the contemnor refused to answer questions in cross-examination (she having been called as a witness in the defence case) at a trial involving a number of accused who belonged to two motor cycle clubs and who were charged in connection with the death of three members of one club. His Honour referred to a number of subjective features that called for the grant of considerable leniency.

38 In New South Wales Crime Commission v Johns (unreported) NSWSC, 5 June 1997 the contemnor refused to answer questions at an examination conducted pursuant to the Drug Trafficking Civil Proceedings Act 1990. The contemnor was a fifty-eight year old man with medical difficulties. Finnane AJ imposed a fixed term of twelve months imprisonment in that case.

39 I am satisfied that imprisonment is the only appropriate sentence in this case.

40 The principal matter urged on me in mitigation of sentence related to the respondent’s medical condition. A report by Dr Paul Colbran, Director, Primary Health, Corrections Health Service dated 7 January 2002 was tendered on the respondent’s behalf when the proceedings were first before me. That report detailed the respondent’s history of chronic airflow limitation. At the date of that report the respondent had been referred to a respiratory physician for assessment and further management.

41 The proceedings were adjourned to allow the respondent the opportunity to obtain an updated medical report. On 17 May 2002 I was informed that the proposed further medical examination was scheduled to take place within a fortnight. I was also informed that the respondent had been found guilty following trial in the District Court and was awaiting sentence in respect of those matters. By consent the proceedings were stood over generally. The parties were given leave to approach my Associate to re-list the matter when the report of the specialist was to hand. There matters stood for almost twelve months.

42 The proceedings were next mentioned before me on 2 May 2003. On that occasion I raised with the parties the question of the significance, if any, that should attach to the lengthy delay that had attended the proceedings. I stood the matter over for further submissions on sentence.

43 On 23 May 2003 Ms Fullerton SC, who appeared for the Commission, handed up a chronology that set out the history of the proceedings before me and before his Honour Judge Armitage QC in the District Court. The accuracy of the events set out in the chronology was not in issue. It is common ground that the sentence proceedings in the District Court were adjourned on a number of occasions on the respondent’s application in light of his medical condition and his desire to obtain a specialist’s report. There were problems in obtaining the report arising out of the fact of the respondent’s custody. In these circumstances I accept Ms Fullerton’s submission that the delay is a neutral circumstance.

44 On 11 April 2003 the respondent was sentenced in the District Court to the following terms:

Count 1 – To a term of imprisonment for one year to commence on 5 January 2001 and expire on 4 January 2002;
Count 2 – To a term of imprisonment for thirteen years to commence on 5 January 2001 and to expire on 4 January 2014. A non-parole period of seven years to date from 5 January 2001 and to expire on 4 January 2008 was specified.

45 I turn now to the medical evidence. A report of Dr Thye, the Acting Director of Medical Services, Blacktown Mount Druitt Health, dated 11 December 2002, details the respondent’s admission to the Intensive Care Unit at the Blacktown Hospital in June 2002. He was diagnosed as suffering from severe asthma and hypoxia. He required artificial ventilation. He remained in hospital for four days. His condition improved and he was discharged to Long Bay gaol.

46 Dr Peters, of the Prince of Wales Hospital, reported that the respondent had presented to the Emergency Department of that hospital on 3 September 2002 with shortness of breath. The initial diagnosis was infective exacerbation of chronic airway limitation and asthma. After reciting the respondent’s history of severe adult onset asthma, Dr Peters expressed the view, based upon the recognised characteristics of patients who are likely to die from the condition, that the respondent’s prognosis was a guarded one.

47 In an updated report Dr Colbran stated that:

“Mr Field’s condition impacts on his incarceration in that he is clearly not able to tolerate the amount of physical exertion that a normal, healthy person of his own age could tolerate. Therefore, he would find it harder to do some of the things that his healthy peers would be able to do. When he suffers an acute exacerbation he does require medical intervention, which is available either within the correctional system, or through referral to an appropriate local hospital.”

48 In a report dated 10 February 2003 Associate Professor McKenzie, a specialist in respiratory medicine, expressed the following opinion:

“Mr Field has mild to moderate chronic airflow limitation on the basis of severe asthma. His asthma is brittle in the sense that he can have rapid fluctuations in airway function (documented with pulmonary function tests) and one episode of life threatening asthma requiring intubation and artificial ventilation.
….

Based on my understanding of the difficulties in providing medical care to prisoners, I would have to agree that Mr Field’s care could be compromised by being in jail, compared with living under ordinary circumstances in a city or town with good medical facilities. His situation is probably not much worse than a person with severe asthma living in a remote rural region. Mr Field does have severe, brittle asthma and has already had one life threatening attack. Had his presentation to the Prince of Wales Hospital in June 2002 been delayed by even 15 or 30 minutes the outcome may well have been fatal.”

49 Mr Hanley, who appeared on behalf of the respondent on the resumption of the proceedings, invited me to backdate any sentence to 5 April 2002. In his submission the respondent’s custody had been, in part, referable to this offence since that date. Alternatively, he submitted that I would impose a sentence to commence from the date of its imposition and, accordingly, be served concurrently with the sentences imposed by Judge Armitage. He submitted that such a course was appropriate having regard to the terms of s 55(2) of the Sentencing Procedure Act and in recognition of the respondent’s age, medical condition and the lengthy sentence to which he is presently subject.

50 In April 2002 I was informed that the respondent was then aged sixty years.

51 The respondent has been given credit for his custody since the date of his arrest in the sentencing order made by Judge Armitage. There is no occasion to backdate the sentence that I impose.

52 I do not consider that it is appropriate to structure the sentence such that it is wholly subsumed by the sentence imposed by Judge Armitage for unrelated offences. To impose a wholly concurrent sentence in these circumstances would fail to give adequate recognition to considerations of denunciation and deterrence.

53 Ms Fullerton drew my attention to the judgment of King CJ in R v Smith (1987) (1987) 44 SASR 587 at 589 for a statement of the principles to be applied in sentencing offenders who are subject to health problems:

“Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

54 The evidence falls short of establishing on the balance of probabilities that the fact of imprisonment poses a serious risk of having a gravely adverse effect on the respondent’s health. In this respect I note the opinion of Professor McKenzie extracted at [48] above. However, his medical condition is a severe one and the evidence viewed in its entirety persuades me that imprisonment will impose a greater burden on him. I take this factor into account in mitigation of sentence. I also have regard to this consideration and to the principle of totality in determining that the sentence will be served partly concurrently with the non-parole period of the second of the two sentences imposed in the District Court. Given the structure of the sentence I do not consider it appropriate to specify a non-parole period.

55 Malcolm Gordon Field on your conviction for contempt of this Court I sentence you to a term of twelve months’ imprisonment. That sentence is to be taken to commence on 5 June 2007 and to expire on 4 June 2008.

*******

Last Modified: 05/30/2003