Principal Registrar of the Supreme Court of New South Wales v Jando

[2001] NSWSC 969

Reported Decision: 53 NSWLR 527
125 A Crim R 473

New South Wales

Supreme Court

CITATION:	Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12570/01
HEARING DATE(S):	15 October 2001
JUDGMENT DATE:	2 November 2001
PARTIES :	Principal Registrar of the Supreme Court of New South Wales (Plaintiff) Janvier Jando (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	R.D. Cogswell SC/B. Baker (Plaintiff) C.B. Craigie SC (Defendant)
SOLICITORS:	I.V. Knight (Plaintiff) Legal Aid Commission (Defendant)
CATCHWORDS:	Contempt - refusal to answer questions at criminal trial in District Court - common law contempt - power of court to punish - application of Crimes (Sentencing Procedure) Act 1999.
LEGISLATION CITED:	District Court Act Supreme Court Act, 1970 Evidence Act Supreme Court Rules Crimes (Sentencing Procedure) Act 1999 Sentencing Act 1989 Periodic Detention of Prisoners Act 1981 Crimes (Administration of Sentences) Act 1999
CASES CITED:	Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 The Registrar of the Court of Appeal v Gilby (unreported, Court of Appeal, 20 August 1991) Wood v Staunton (No. 5) (1995) 86 A Crim R 183 Attorney General for New South Wales v Whiley (1993) 31 NSWLR 314 ICAC v Cornwall (unreported, Abadee J, 8 September 1993) Wood v Galea (1996) 84 A Crim R 274 Wilson v The Prothonotary [2000] NSWCA 23 Smith v The Queen (1991) 25 NSWLR 1 Registrar of the Court of Appeal v Raad (unreported, 9 June 1992) Registrar of the Court of Appeal v Craven 120 FLR 464 Wood v Moller (unreported, Dunford J, 15 November 1996) Crime Commission v Johns (unreported, Finnane AJ, 5 June 1997 and unreported, Barr J, 3 April 1998) R v Georgiou [2000] NSWSC 287 R v Duncan [2000] NSWSC 440 The Honourable Mr Acting Justice Ireland v Russell [2001] NSWSC 468
DECISION:	See para 58

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

12570/01

STUDDERT J

Friday 2 November 2001

PRINCIPAL REGISTRAR OF THE SUPREME COURT OF NEW SOUTH WALES v JANVIER JANDO

JUDGMENT

1 HIS HONOUR: In these proceedings commenced by summons the plaintiff registrar seeks the following declarations and orders:

“1. A declaration that the Defendant is guilty of contempt of court in that on 29 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether he remembered having given an undertaking to give evidence in the trial of Abdul Khan.
2. A declaration that the Defendant is guilty of contempt of court in that on 29 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether a document then shown to him, headed ‘Undertaking to Give Evidence DPP v Abdul Khan’, had his signature upon it.

3. A declaration that the Defendant is guilty of contempt of court in that on 29 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether he remembered being interviewed by a police officer at Marrickville Police Station on 18 February 2000.

4. A declaration that the Defendant is guilty of contempt of court in that on 29 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether he gave an undertaking to assist the police by giving evidence against the accused Abdul Khan.

5. A declaration that the Defendant is guilty of contempt of court in that on 30 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him by the Crown Prosecutor on the voir dire, namely whether the document he then had in front of him was an undertaking to give evidence against Abdul Khan.

6. A declaration that the Defendant is guilty of contempt of court in that on 30 May 2001, being a competent and compellable witness in the trial of Abdul Sameer Khan in the District Court of New South Wales before his Honour Judge Armitage QC and being duly sworn, he refused without justification to answer a material question put to him on the voir dire by the Crown Prosecutor, namely whether a document then shown to him was a statement that he had signed, that statement having been taken from him on 24 May 2000 by a police officer.

7. An Order that the Defendant be punished or otherwise dealt with for such contempts of court.
8. Such further or other Orders as to the Court seems fit including an Order that the Defendant pay the costs of these proceedings.”

2 The defendant, Janvier Jando, was charged with contempt in the face of the court by his Honour Judge Armitage QC in the course of a trial in the District Court and his Honour referred the matter to the Supreme Court pursuant to s 203 of the District Court Act. The summons is before me as a judge of the Common Law Division by reason of the combined effect of s 48(2)(i) and s 49 of the Supreme Court Act, 1970.

3 The evidence in support of the summons is contained in affidavits by Katie Bryant sworn on 3 August 2001 and Rohan Cooley sworn on 8 October 2001. Neither deponent was required for cross examination and there has been no issue as to what occurred to prompt the referral by the learned District Court judge.

4 The defendant was arrested on 18 February 2000 and was subsequently interviewed. There was a second interview eleven days later and in a statement made on 24 May 2000 the defendant said that what he had told the police was correct and that he would be willing to go to court to give evidence against a named offender, Abdul Khan. Subsequently, on 21 June 2000, the defendant signed an undertaking to give evidence at the trial of that person and that undertaking related to a trial concerning armed robbery offences allegedly committed between 24 January 2000 and 9 February 2000.

5 On 23 June 2000 the defendant appeared before a magistrate in the Children’s Court charged with six robbery offences and a further offence of robbery in company. The defendant was sentenced to a period of control of one year three months for the six robbery offences and a further period of control of nine months, cumulatively imposed, for the robbery in company offence, with a two months non parole period for the latter offence. In imposing those sentences, the magistrate indicated that he had given the defendant a credit in aggregate of six months taking into account the undertaking to give evidence.

6 This was the background to the trial of Abdul Khan which commenced in the District Court on 28 May 2001 before his Honour Judge Armitage and jury. Khan faced trial on five robbery charges and also upon a charge of larceny of a motor vehicle.

7 In the course of that trial on 29 May 2001 the defendant was called to give evidence by the Crown on a voir dire procedure and was duly sworn. In the course of examination in chief the defendant refused to answer material questions which were put to him by the Crown Prosecutor and the presiding judge granted leave to the Crown Prosecutor to question the defendant pursuant to s 38 of the Evidence Act. The defendant refused to answer further material questions.

8 The summons identifies under the heading “Statement of Charges” the conduct said to constitute contempt, and concerning which the various declarations in the summons are sought:

“1. On 29 May the following questions provoked the following refusals to respond from the defendant (T 10):
‘Q. Is it also the situation that you, before being sentenced, gave an undertaking to give evidence against this accused, Abdul Khan. Do you remember doing that?
(No verbal reply)
HIS HONOUR: Q. Would you just mind answering the question, thank you very much.
(No verbal reply)’
2. Shortly thereafter, there was a further refusal (T 11):
‘CROWN PROSECUTOR: Q. Sir, does that document that you have in front of you, which is headed with the words ‘Undertaking to Give Evidence DPP v Abdul Khan’, does that document have your signature upon it midway down the page on the right-hand side?
(No verbal reply)
Q. Can you answer that question please?
A. Sorry, I can’t answer the question.’
3. Then, again on 29 May 2001, the transcript (p 14) records the following:
‘Q. You recall an occasion, don’t you, when you were at Marrickville Police Station being interviewed by a police officer don’t you?
A. I don‘t remember.
Q. We’re only talking about 18 February last year. It’s the situation you do remember that don’t you?
(No verbal reply)’
4. Further, on p 14 of the transcript there is recorded the following question which prompted no response:
‘Q. Isn’t it the situation that you in fact gave an undertaking to assist the police by giving evidence against this accused, Abdul Khan. That’s correct isn’t it?
(No verbal reply)’

9 Following his refusal to answer questions, the defendant was given the opportunity of seeking legal advice, and the voir dire proceedings then continued on the following day. Although by then the defendant had been given legal advice, there were further refusals to answer questions put by the Crown Prosecutor:

“5. At p 3 of the transcript for 30 May 2001 this exchange is recorded:
‘CROWN PROSECUTOR: Q. Sir the document that you have in front of you is an undertaking to give evidence against Abdul Khan, do you agree with that?
A. I don’t want to do this your Honour, I told you.’
6. At p 4 of the transcript for 30 May, there is recorded the following further exchange:
‘CROWN PROSECUTOR: Q. Isn’t it the situation that that’s a statement that you signed, that statement having been taken from you on 24 May 2000 by a police officer, that’s right, isn’t it?
A. I’ve already told you, once more, I don’t want to do this.’

10 Following the last of the above exchanges the presiding judge informed the defendant that in his view the defendant was guilty of contempt of court and he adjourned the court after telling the defendant that he wanted to give the defendant the opportunity to think about his position because if he remained unwilling to answer questions it was the judge’s intention to charge the defendant with contempt of court. The court adjourned for a period and upon resumption the defendant again expressed his unwillingness to answer further questions. Thereupon the judge charged the defendant with contempt and this is the setting in which the matter was referred to this court.

11 Plainly the defendant’s refusal to answer the questions directed to him in the proceedings before the District Court constituted contempt of court. Indeed, Mr Craigie has not contended otherwise. I therefore make the declarations sought in paras 1, 2, 3, 4, 5 and 6 of the summons. I also make the order for costs sought in para 8 thereof.

12 This brings me to a consideration of appropriate punishment of the defendant.

13 Punishment for contempt of court attracts the application of sentencing considerations generally applicable.

14 In Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 the Court of Appeal had occasion to punish for contempt of court. In the course of his judgment Kirby P said at 314:

“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.”

15 It is of course necessary to determine the gravity of any offence to be punished. The approach to be taken to the most serious class of contempt was considered in the judgment of the President just mentioned and his Honour went on to say at 315:

“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.”

16 In The Registrar of the Court of Appeal v Gilby, (unreported, Court of Appeal, 20 August 1991), the court identified a number of factors of significance for punishment purposes where there has been a refusal to give evidence:

“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.”

17 More recently, following a review of the relevant authorities, Dunford J in the matter of Wood v Staunton (No. 5) (1995) 86 A Crim R 183 identified not only the considerations to be drawn from Gilby but other matters to be addressed also. His Honour said (at 185):

“Those cases show that relevant matters for consideration in assessing the proper punishment for this type of contempt include:

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; and

10. denunciation of the contempt.”

18 I now propose to consider the ten matters conveniently identified by Dunford J in the above passage in considering the contempt committed by the present defendant.

(1) The seriousness of the contempt proved

19 I consider that the contempt in this case can only be regarded as very serious. Where a person with relevant evidence to give declines to give evidence, and the defendant was such a person, that strikes at the heart of the system of the administration of justice. The accused was on trial for serious offences, and the defendant persistently refused to cooperate in the trial process, resulting in its frustration.

(2) Whether the contemnor was aware of the consequences to himself of what he did

20 I am satisfied beyond reasonable doubt that the defendant was aware of the consequences of his refusal to give evidence. Not only was he given the opportunity to seek legal advice concerning his obligations and his refusal, but legal advice was given and, indeed, the trial was adjourned to permit this to be done. Then, on the following day, the judge cautioned the defendant about the consequences if he persisted in his refusal and gave the defendant a further short adjournment to consider his position before charging him. Still the defendant refused to respond.

(3) The actual consequences of the contempt on the relevant trial or inquiry

21 It is not here disputed what the consequence of the defendant’s refusal was. Following the charging of the defendant with contempt, the trial of Khan had to be deferred for good and obvious reasons. It was perceived that the contempt should be addressed before the trial proceeded and, as the transcript of proceedings annexed to the affidavit of Rohan Cooley discloses, the judge discharged the jury that had been empanelled. Khan’s trial was refixed to commence on 29 October 2001.

(4) Whether the contempt was committed in the context of serious crime

22 It is clear that it was. The offences with which Khan was charged were unquestionably serious offences.

(5) The reason for the contempt

23 The defendant has given no evidence in the proceedings presently before this Court. He has, however, been interviewed by an officer of the Probation and Parole Service for the purposes of a specific purpose report (Exhibit A) and by Ms Duffy, psychologist, for the purpose of her report (Exhibit 1). The defendant told the probation and parole officer that when he agreed to testify against Khan he did not appreciate that Khan would be present during proceedings, and that, when he was present, the defendant felt intimidated and frightened by his presence. Further he told that officer that he had fears for his own safety and for that of his family should he give evidence against Khan. To Ms Duffy, the defendant said that he was threatened indirectly by Khan who told him if he said nothing, nothing would happen to him. The defendant said he was fearful that if he gave evidence the consequences could impact upon his family. Moreover, by the time of Khan’s trial, the defendant said he had been in custody at Mt Penang for a period and was aware that giving evidence against a fellow accused was tantamount to being a “dog”, much derided by prison inmates.

24 I do not overlook the fact that the defendant gave no evidence in this Court. However, the defendant was only seventeen when he gave the undertaking and eighteen when he declined to give evidence. This Court was informed that Khan was older than the defendant, his date of birth being 29 November 1979. In addition the defendant was aware of the serious charges facing Khan and they were, of course, offences involving an element of violence. I am prepared to accept, for present purposes, that the defendant was influenced in his refusal by an apprehension that if he gave evidence adverse to Khan there could be reprisals upon himself and/or his family.

(6) Whether the contemnor has received any benefit by indicating an intention to give evidence

25 The defendant derived the advantage of reduced sentences in the expectation that he would give evidence in the case against Khan. The overall punishment was reduced by six months. The defendant has, of course, reneged on the undertaking and is in jeopardy of being brought back before the magistrate. However, this has not yet occurred and it is not for this Court to determine what the magistrate will do if and when required to reconsider the sentences imposed upon the defendant. The task for this Court now is to punish the defendant for the contempts.

(7) Whether there has been any apology or public expression of contrition

26 There has been no apology offered by the defendant nor has there been any expression of contrition. This Court has not been informed of any willingness on the part of the defendant to give evidence at the trial listed for the end of this month.

27 True it is that the defendant has not challenged the matters advanced by the plaintiff to establish the contempt committed. I am, of course, mindful of the fact that Mr Craigie of Senior Counsel, who has appeared in this Court on behalf of the defendant, informed the Court at the outset that there was no challenge to the contentions that the defendant had committed contempt of court and there was no challenge to the evidence upon which the plaintiff here relies. Nor was there any contention as to the legal principles relevant. These matters are to be recognised by the Court but, it seems to me, that the attitude here adopted by the defendant in essence merely recognises the inevitable. The evidence concerning the defendant’s contempt, and that it amounted to contempt, is overwhelming.

(8) General and personal deterrence

(9) Denunciation of the contempt

28 These are features of the case which assume relevance in the present context. I consider that there is a need in determining the appropriate punishment to heed considerations of general and personal deterrence and to denunciate the contempt.

(10) The character and antecedents of the contemnor

29 The defendant is presently nineteen years of age. He was admitted to parole in July this year after the expiration of the non parole period specified for the cumulative sentence imposed by the magistrate. The report of the probation and parole officer records that since his release in July the defendant has lived with his parents and he has obtained employment in a city hotel in the house-keeping section, apparently working four days per week. According to the probation and parole officer the defendant has conducted himself in a satisfactory way whilst he has been supervised since July. Supervision has included referral to and participation in a drug and alcohol group programme of ten weeks duration.

30 The report of the probation and parole officer is to be regarded as favourable. The author opined:

“Certainly it is obvious to the author that he has made every effort to bring his desires [to turn his life around and to remain drug free and to put his past behind him] to fruition and return to custody would prove devastating for Mr Jando and impact significantly on his rehabilitation.”

31 Ms Duffy carried out a psychological assessment earlier this month. Her report records something of the defendant’s background. His parents immigrated to Australia from the Philippines in 1986 and the defendant accompanied them. He went to Canterbury Public School from years one to six but was in low classes. He was expelled from school in year nine. He spent time in Mt Penang at the age of seventeen, and was unemployed following his release and apparently until his arrest on the offences for which he was taken into custody in February 2000.

32 The defendant gave Ms Duffy a history of using marijuana and later progressing to heroin. To feed his heroin habit he committed the offences in 2000.

33 Mr Craigie placed emphasis on the psychologist’s assessment of the defendant to the effect that the defendant’s verbal intelligence was well below average and that this impacted upon his comprehension and abilities of expression. Indeed, Ms Duffy concluded:

“In terms of his verbal skills he is functioning in the developmentally disabled range.”

34 Amongst the conclusions expressed by Ms Duffy were the following:

“In addition to these personality characteristics, Janvier has poor problem solving abilities. His level of verbal intelligence is well below the average, indicating substantial deficits in verbal expression and comprehension. This would not have precluded his ability to understand the questions asked of him in Court and his refusal to answer them, but suggest a reduced capacity to make decisions and work through his problems constructively. He remains very reliant on others to guide him.”

35 I am mindful of the psychologist’s assessment when addressing the matter of penalty.

Determination of punishment

36 Part 55 r 13 of the Supreme Court Rules addresses the issue of punishment of contempt:

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

(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

(3) 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.”

37 It was said of the above rule in Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 at 314 that it was “declaratory of the court’s power of punishment and did not exhaust it.”

38 The issue arises in the present case, when considering sentencing options, as to whether the Crimes (Sentencing Procedure) Act 1999 assumes relevance. The predecessor to this statute, the Sentencing Act 1989, was held to apply to a sentence of imprisonment for contempt of court: Attorney General for New South Wales v Whiley (1993) 31 NSWLR 314.

39 In their joint judgment in Whiley Clarke, Mahoney and Handley JJA said (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, Pt 55, r 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.”

40 The court, when determining in Whiley that the provisions of the Sentencing Act did apply to a sentence of a term of imprisonment for the common law offence of contempt, said at pp 320-321:

“There are, in addition, strong policy reasons for applying the Act to the sentencing of a person for contempt. First, it would provide consistency in sentencing, especially where the contempt could also amount to an offence under the Crimes Act; secondly, it is to the benefit of the opponent that, if sentenced to imprisonment, he is given the opportunity to have parole and to serve part of his sentence under supervision in the community; and thirdly, the Sentencing Act provides for a more flexible sentencing approach so that the sentence can be structured to take into account more readily the interests of both the community and the offender and to provide for supervision upon release from custody.
It is true that courts in other jurisdictions have seen a need to exclude normal sentencing principles in respect of sentences for contempt. An example is Morris v Crown Office [1970] 2 QB 114. There it was said that a judge had erroneously ordered the imprisonment of certain persons in contradiction of a number of sections of the Criminal Justice Act 1948 (UK). But that Act, and the Criminal Justice Act 1967 (UK), imposed fetters upon the power to imprison which, if applicable to cases of contempt, struck at the powers of the courts to protect the integrity of the administration of justice. Because the provisions of those Acts, if applied to contempt of court, would impose unacceptable fetters upon the power to imprison, the Court of Appeal concluded that it was not the intention of parliament that sentencing orders for contempt should come within their provisions.
There are no similar considerations in respect of the Sentencing Act 1989. None of its provisions in any way fetter the power of the court adequately and properly to deal, and deal promptly, with contempts of court. Although the court in Registrar of the Court of Appeal v Maniam [No. 2] held that the powers under the Community Service Orders Act 1979 did not apply when a person was found guilty of contempt no reason appears from that decision why the Sentencing Act itself should not apply where a person is imprisoned for contempt. In these circumstances the proper conclusion is that the provisions of the Sentencing Act do apply.”

41 The decision in Whiley has been followed in cases where a contemnor has been sentenced to imprisonment for contempt: see, for example, ICAC v Cornwall (unreported, Abadee J, 8 September 1993); Wood v Galea (1996) 84 A Crim R 274; and Wood v Staunton (No. 5) (1995) 86 A Crim R 183. See also Registrar of the Criminal Division of the Supreme Court v Glasby [1999] NSWSC 846 where the sentence for contempt was structured under the Sentencing Act 1989. See also Wilson v The Prothonotary [2000] NSWCA 23.

42 The Crimes (Sentencing Procedure) Act 1999 has now replaced the Sentencing Act but I see no reason in principle why the considerations which led the Court of Appeal in Whiley to determine the application of the Sentencing Act to a sentence for common law contempt would not likewise apply to the Crimes (Sentencing Procedure) Act. Section 4 of the Crimes (Sentencing Procedure) Act is in the following terms:

“ (1) The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law.
(2) The penalty to be imposed for a statutory offence for which no penalty is so provided is imprisonment for 5 years.
(3) Part 3 applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise.”

43 The word “offence” used in s 4 is not defined in the 1999 Act, but neither was it defined in the 1989 Act. The word “offence” is a word of broad import and there can be no question but that a contempt is an offence and an offence which is criminal in nature: see Whiley (supra).

44 Section 4(1) expressly contemplates the application of the statute to common law offences, and I accept, as the Crown Advocate has submitted, that the language of s 4 embraces all offences where penalties are to be imposed. The same “strong policy reasons” for applying the Sentencing Act 1989 to the sentencing of a person for contempt, as identified by the Court of Appeal in Whiley (para 40 above), apply when this court has to determine how to sentence a person for contempt since the enactment of the Crimes (Sentencing Procedure) Act 1999. It is just as desirable that the flexible sentencing approach for which the 1999 Act provides should be available to a sentencing judge as it was that the flexibility for which the 1989 Act provided was available to a sentencing judge whilst that statute remained in force.

45 Having considered the provisions of the statute and the above authorities, I have concluded that where a contemnor is now to be imprisoned for contempt, the Crimes (Sentencing Procedure) Act applies.

46 In the Specific Purposes Report of the Probation and Parole Officer, Exhibit A, the author of the report wrote:

“Mr Jando has been assessed as suitable for a periodic detention order as per requirements of S66(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by S66(1) of this Act.”

47 Having heard submissions in this matter, I reserved my decision but I subsequently invited counsel to provide supplementary written submissions on whether a sentence of imprisonment to be served by way of periodic detention was an available option in the event that I concluded such would be an appropriate sentence. Mr Craigie, for the defendant, has submitted that the imposition of periodic detention is an available option and Mr Cogswell has expressed his agreement with Mr Craigie on this issue.

48 Counsel have not been able to refer me to any case in which a sentence to be served by way of periodic detention has been imposed for contempt since the commencement of the 1999 Act. However, once the conclusion is reached that the Crimes (Sentencing Procedure) Act does apply to any sentence of imprisonment that may here be imposed, there is no reason to exclude the application of s 6 of the statute which deals with periodic detention:

“ (1) A court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention.
(2) This section is subject to the provisions of Part 5.”

49 The 1989 statute did not contain a counterpart of s 6 of the 1999 Act but periodic detention was part of the earlier sentencing regime by reason of the Periodic Detention of Prisoners Act 1981. In ICAC v Cornwall (supra), a case of statutory contempt decided in 1993, Abadee J accepted that, consistently with Whiley, the Periodic Detention of Prisoners Act applied to a sentence of imprisonment for contempt (see his Honour’s judgment at 16). Hence, his Honour considered a sentence to be served by way of periodic detention would have been a sentencing option for him had he been minded to impose a sentence of not less than three months imprisonment. Section 5 of the statute however prevented a sentence of less than three months being served by way of periodic detention.

50 His Honour’s remarks about the availability of periodic detention in Cornwall were in a sense obiter and Cornwall is clearly distinguishable from the present case in the respects identified, but I am influenced by what was said in Whiley in the passages I have cited in concluding, as counsel have submitted I should conclude, that s 6 of the Crimes (Sentencing Procedure) Act has application in an appropriate case where a contemnor is being sentenced.

51 I return to Part 55 r 13(1) which contemplates the punishment of contempt (inter alia) by committal to a “correctional centre”. “Correctional centre” is defined in the Crimes (Sentencing Procedure) Act as having the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Any sentence to be served by way of periodic detention would be served in a periodic detention centre and Part 3 of the Crimes (Administration of Sentences) Act deals with imprisonment by way of periodic detention. The definition section to the Crimes (Administration of Sentences) Act defines “periodic detention centre” as meaning:

“any correctional centre declared to be a periodic detention centre by a proclamation in force under section 226.”

52 As I remarked earlier, Part 55 r 13 is not exhaustive but if a contemnor is punished by a sentence of imprisonment to be served by way of periodic detention then that is a punishment which can properly be considered to be a punishment by committal to a correctional centre.

53 Section 5 of the Crimes (Sentencing Procedure) Act 1999 provides that a court:

“must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

54 As in any sentencing task, it is necessary that I have regard to the defendant’s age and antecedents, which I have earlier addressed. Notwithstanding the favourable report of the probation and parole officer, it seems to me that the objective seriousness of the contempts that have been established is such that I must be, and I am, satisfied that no penalty other than imprisonment is appropriate. The defendant’s refusal to respond to proper questioning here amounted to deliberate defiance, and in all the circumstances earlier reviewed, I consider a sentence of imprisonment must be imposed for each of the contempts the subject of the declarations. Each of these contempts I regard as being of equal gravity and I propose to impose the like sentence for each contempt but I have regard to the principle of totality and I intend that the sentences be served concurrently.

55 It has not been submitted that punishment in the nature of an indefinite coercive sentence should be imposed, and I will not impose such punishment.

56 I have been referred to many cases dealing with the punishment of contemnors and the Crown Advocate provided, in addition, a schedule summarising the penalties in those cases: Registrar of the Court of Appeal v Gilby (unreported, 20 August 1991); Smith v The Queen (1991) 25 NSWLR 1; Registrar of the Court of Appeal v Raad (unreported, 9 June 1992); ICAC v Cornwall (supra); Registrar of the Court of Appeal v Craven 120 FLR 464; Wood v Staunton (supra); Wood v Moller (unreported, Dunford J, 15 November 1996); Wood v Galea (supra); Crime Commission v Johns (unreported, Finnane AJ, 5 June 1997 and unreported, Barr J, 3 April 1998); Registrar, Criminal Division of the Supreme Court v Glasby [1999] NSWSC 846; R v Georgiou [2000] NSWSC 287; R v Duncan [2000] NSWSC 440; and The Honourable Mr Acting Justice Ireland v Russell [2001] NSWSC 468. I have considered those various cases but I do not propose to review them in the course of this judgment. The penalties varied significantly from case to case. That is by no means surprising because it has to be recognised that what penalty is appropriate in a particular case is so dependent upon the assessment of all its features, including the nature of the particular contempt and its consequences.

57 In this case I have decided that the appropriate penalty for each offence is a sentence of imprisonment for twelve months, with each sentence to be served concurrently, and I propose, being satisfied that it is appropriate so to do, to direct that each sentence be served by way of periodic detention. Having regard to s 70 of the Crimes (Sentencing Procedure) Act, I will fix the date of commencement of the sentences now imposed as being 16 November 2001. Having regard to the fact that the sentences are to be served by way of periodic detention, I do not propose to fix a non parole period.

1. I make each of the declarations as sought in paras 1, 2, 3, 4, 5 and 6 of the summons.

2. I make an order for costs as sought in para 8 of the summons.

3. In respect of each of the contempts the subject of the declarations, I sentence the defendant to imprisonment for twelve months and I direct that each sentence be served by way of periodic detention.

4. I further order that each sentence be served concurrently and I fix the date of commencement of each sentence as being 16 November 2001.

5. I grant liberty to apply on forty-eight hours notice concerning the implementation of order 4.

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Last Modified: 12/05/2001