Prothonotary of the Supreme Court of New South Wales v Hall - [2008] NSWSC 994

No judgment structure available for this case.

CITATION: Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994

HEARING DATE(S): 22 September 2008

JUDGMENT DATE :
22 September 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison J

EX TEMPORE JUDGMENT DATE: 22 September 2008

DECISION: 1. Declaration as sought in par [1] of the summons.
2. Defendant sentenced until the rising of the Court.
3. No order as to costs.

CATCHWORDS: CONTEMPT – offensive language directed to magistrate in the course of refusal of a bail application – defendant suffering the effects of drug withdrawal superimposed on personality disorder with self-harming tendencies – defendant substantially disinhibited by the effects of diazepam administered whilst in custody – contrition and remorse demonstrated by unreserved apology to the Court and to the magistrate – declaration that defendant guilty of contempt – sentenced until the rising of the Court

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Attorney General in and for the State of New South Wales v Whiley (1993) 31 NSWLR 314
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Commissioner for Fair Trading v Partridge [2006] NSWSC 478
Commissioner of Fair Trading, Department of Commerce v Jenness [2007] NSWSC 439
Ex parte Bellanto; Re Prior [1963] SR (NSW) 190
Ferguson v Walkley [2008] VSC 7
Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682
Principal Registrar of Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527
Prothonotary of the Supreme Court v Smiley (Supreme Court of New South Wales, Simpson J, 8 March 2005, unreported)
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132
R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 477
Smith v The Queen (1991) 25 NSWLR 1
Wood v Staunton (No 5) (1996) 86 A Crim R 183

PARTIES: Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Jason Hall (Defendant)

FILE NUMBER(S): SC 16041/2007

COUNSEL: L A Babb SC with S G Callan (Plaintiff)
A C Haesler SC (Defendant)

SOLICITORS: I V Knight, Crown Solicitor (Plaintiff)
Aboriginal Legal Service (NSW/ACT) Limited (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

22 September 2008

16041/2007 Prothonotary of the Supreme Court of New South Wales v Jason Hall
JUDGMENT – EX TEMPORE

1 HIS HONOUR: By summons filed on 30 November 2007 the Prothonotary of the Supreme Court of New South Wales ("the plaintiff") seeks a declaration that Jason Hall ("the defendant") is guilty of contempt in that at Campbelltown Local Court on 22 March 2007, following a decision by her Honour Magistrate Hannam to refuse the defendant bail, the defendant made a series of statements referred to below that had a tendency to interfere with the administration of justice. The plaintiff, for whom the Crown Advocate and Ms Callan of counsel appears, also seeks an order that the defendant be punished or otherwise dealt with for contempt. An order for costs is also sought.

2 The statement of charge alleges that the defendant made the following statements to the Magistrate in open court:

" How about I just plead guilty to the whole fucking lot and just send me to gaol?

Yeah, I am. I’m guilty on the whole lot. Send me to fucking gaol you piece of shit. It’s fucking wrong.

It's wrong, look, you’re a female . . .

Of course you’re going to charge me.

Of course you’re going to go against me because you're female.

Fuck brief nothing. Just – I'm pleading guilty on the lot. Don't worry about it. Change it right now, pleading guilty on the fucking lot.

When I come back here in a week I don't want to see you, you putrid fuck.

I would too if I was you, you fucking cunt, fucking dog, fucking moll.

3 The particulars of the charge allege that these statements were made when the defendant, then represented by Mr Bouveng from the Legal Aid Commission, was applying for bail having been charged with two counts of assault involving a female domestic partner. The police prosecutor opposed bail and bail was refused. The Magistrate gave reasons for that decision. The words set forth in the statement of charge were then said in the course of an exchange between her Honour and the defendant. Following a short adjournment her Honour made an interim apprehended violence order against the defendant in respect of the alleged victim.

4 The plaintiff contends that the statements made by the defendant have a tendency, as a matter of practical reality, to interfere with the administration of justice in that the statements, whether viewed collectively or separately, were abusive and had a tendency to detract from the influence of judicial decisions, damage public confidence in and respect for the courts and their judgment, lower the authority of the courts and weaken the spirit of obedience to law.

5 The defendant, for whom Mr Haesler of Senior Counsel appears, advised the Crown Solicitor's Office on 4 July 2008 that he intended to plead guilty to the charge. He does not contest the fact that he said the words that he is alleged to have said or the context in which they were said. This is unsurprising. The plaintiff relied upon an affidavit of Jennifer Jayasuriya affirmed on 29 November 2007 to which is annexed a copy of the transcript of the proceedings before her Honour on 22 March 2007 in which the alleged words are to be found. Ms Jayasuriya was not cross-examined and the accuracy of the transcript was not otherwise put in issue. The defendant consented to the making of the declaration sought by the plaintiff and made submissions limited to the question of penalty.

Background

6 The evidence of the defendant, given by affidavit made 18 July 2008, was that on the morning of 21 March 2007 he spoke to police and agreed to attend Macquarie Fields Police Station later that day. He attended the police station at about 10.00am, accompanied by his sister. He had ingested a large amount of speed earlier in the day. The officers dealing with his matter were not there when he arrived and so he waited outside the police station for about one hour until they returned. He was arrested outside the police station at about 11.00am.

7 The defendant said that the police told him that if he handed himself in that he would be granted bail. They had asked his sister to attend with him to facilitate that. The police subsequently opposed bail. The defendant was then taken from Macquarie Fields Police Station to Campbelltown Court cells. He was not brought before a court that day. Whilst in custody in the cells the defendant told the gaol staff that he had wanted to jump in front of a bus recently and that he had stabbed himself in the stomach with a pair of scissors. At about 4.00pm he was taken to Campbelltown Hospital for a psychiatric assessment. He was later returned to the Campbelltown Police Station. He said, "Things seemed to be going really quickly and I do not remember much from that night. I was still feeling the effects of the speed I had taken earlier".

8 The defendant was given Avanza at the Campbelltown Police Station. That is an anti-depressant. That made the defendant "really hyperactive" for about 20 minutes and then he "slowed down heaps". He said he remembers lying watching television in the cells but little else. His next memory is of being in the cell when the door opened. He had what he described as "the dry horrors". His mouth was very dry, he was trembling and shaking and was coming down from the effects of speed and Avanza. He does not remember eating any breakfast.

9 The police took him to court. He said he remembers being refused bail "by a lady magistrate". That made the defendant feel "really angry" because the police at Macquarie Fields Police Station had told that he would get bail if he handed himself in. He said that he remembers saying words to the Magistrate but has no recollection of what he said. When he received the summons in these proceedings his partner read to him what it contained, including the transcript of what he had said in court. He said he was shocked and felt "really bad about what [he] had said". He has never said anything like this in court before.

10 The defendant apologised. In an affidavit filed in these proceedings he said this:

"I apologise to the lady Magistrate for my outburst in Court. I am very sorry I upset her. My apology is from the heart and I am truly very sorry."

11 The defendant's affidavit also annexed an apology handwritten by him that he asked his solicitor to furnish to her Honour. That document is instructive and the terms of it in the original spelling are as set out below:

"To the magistrait

12 The defendant was born on 12 November 1973. Dr Olav Nielssen, a psychiatrist, saw him on 21 May 2008 for the purpose of preparing a report for use in these proceedings. He told the doctor that he basically lost his temper when he handed himself in to police. The defendant told the doctor that he was sentenced to eight months in gaol, including four months in custody and four months on parole, which he completed at the end of last year. He said that he and his partner were still together and that she was pregnant with their third child. The defendant told the doctor that he had stopped using drugs apart from cannabis.

13 The defendant reported to the doctor considerable experience in the criminal justice system both as a juvenile and as an adult and said that he had been in prison on about five previous occasions, mostly on remand. He said that the four months that he served last year was one of his longer sentences. He said that he had only ever been dealt with at the Local Court and District Courts and was familiar with court procedure. He said that he usually sat quietly during proceedings and denied any previous outbursts in court. In response to questions about previous domestic violence and problems with women in authority, the defendant told Dr Nielssen that Apprehended Violence Orders had been taken out in this relationship and in a previous relationship and that he had previously been charged with assault against his current partner. He denied having a particular difficulty with women despite the content of his outburst against the Magistrate. When asked about the presence of symptoms of mental illness the defendant told the doctor that he experienced chronic anger and depression that he related to a sexual assault in early adult life. He did not report symptoms of psychotic illness at around the time of his court appearance.

14 The defendant said that he was not aware of a family history of schizophrenia, although he understood that one of his brothers had psychiatric problems because of amphetamine use. He had been a ward of the State and as someone who was known to Juvenile Justice he conceded that he would have seen councillors during his late childhood and adolescence. The defendant told the doctor that he had been admitted to psychiatric hospitals on several occasions after suicide attempts, but did not report admissions to hospital for treatment of amphetamine induced psychotic illness. He reported episodes of amphetamine-induced psychosis during which he was frightened that people were after him and were about to burst into the house to assault him, to such an extent that he took refuge in a cupboard. However, the defendant said that after the drugs wore off he realised that his beliefs were due to misinterpretation of events because of the effects of the drugs. He did not report typical symptoms of schizophrenic illness at any stage.

15 The defendant reported that he is currently receiving treatment with Avanza for depression. He told Dr Nielssen that as a child he was knocked unconscious after being hit in the head by a beer bottle and woke up in hospital. He was not aware of any lasting impairment in mental function as a result of that injury. The defendant told Dr Nielssen that he had cirrhosis of the liver from chronic active Hepatitis C and had been offered treatment with Interferon. However the defendant said he was reluctant to have that treatment, as he was aware that it caused depression in many people. The defendant also said that he was anxious about such treatment after seeing his father go through chemotherapy for cancer.

16 The defendant reported that he began using cannabis and alcohol at the age of nine and was using heroin regularly by the age of eleven. He said that from mid-adolescence his drug of choice changed from heroin to amphetamines and said that he used amphetamines regularly until giving up last year. He reported periods of heavy amphetamine use resulting in transient psychotic episodes and severe mood swings. The defendant reported one admission to a drug detoxification unit at Wyong but said that he only lasted four days. The defendant said that he had previously had a problem with alcohol, drinking up to a bottle of spirits at a time but said he realised that alcohol made him angry and he gave it up. He did not report abuse of sedative medication and did not know the name of the medication he was given the night before the offence.

17 The defendant reported that he was the oldest of four children and has no contact with the three younger siblings, although he understood that one of his brothers also had an amphetamine abuse disorder. He said that he had a "very bad" early childhood and that his parents separated when his father was sent to gaol when he was six years old. Soon after that that he became a ward of the State. The defendant did not report any stable foster care arrangements and said that instead he had been placed in several boys' homes. He told the doctor that he did not recall sexual interference during childhood although he agreed that he had reported it to Justice Health staff on his reception to gaol in 1994 at the age of 21. The defendant said that his education was interrupted by frequent moves and that he just did not cooperate with education. He was unable to read or write properly or perform arithmetic other than that required for conducting simple transactions. He said he was also very forgetful and had difficulty thinking clearly, which he believed was a result of heavy drug use.

18 The defendant told Dr Nielssen that he had never worked consistently and that his only long-term job was eight months in a metal workshop in early adult life. He said he now receives a Disability Support Pension although he was not sure why he was granted it. He said that he had several relationships of three years' duration and had a total of eight children aged between thirteen and one year of age. He and his current partner were expecting another child. He said that he is only in contact with the two children to his current partner and did not know how the other six children were progressing. He said that he had previously played softball for fun and that his main hobby was fishing with a friend who accompanied him to the interview. They met whilst the defendant was living in a caravan park on the Central Coast.

19 Dr Nielssen said that the defendant presented early to the interview. He reported numerous tattoos acquired in boys' homes and in custody, which he said was how he contracted the Hepatitis C virus. He did not use needles at that stage. He was untidily groomed and dressed in a loose fitting tracksuit and thongs on a cold day. His manner was surly and he was suspicious of personal questions and unforthcoming during the interview. There was some use of profanity and jargon associated with drug use. He did not appear intoxicated or sedated but had difficulty providing specific information. He reported previous symptoms of amphetamine psychosis but did not offer a delusional explanation for the experiences. Dr Nielssen reported that the defendant's attention and concentration appeared to be unimpaired but he seemed to have difficulty retrieving specific information in a way that was thought to be due to long-term drug abuse and low education. His intelligence was estimated to be around the bottom of the normal range from his general knowledge and reasoning ability.

20 Dr Nielssen diagnosed substance dependence and abuse based upon the defendant's account of long-standing abuse of amphetamines and complications of drug use, including transient psychosis, depression, problems in his relationship and criminal charges. Dr Nielssen opined that a combination of the effect of the drugs he took and his anger towards his partner and the police, as well as the circumstances of the hearing, were probably factors that contributed to his behaviour in court before the Magistrate. The defendant reported that he had given up drinking and abusing amphetamines and had resumed the relationship with the partner who was the subject of the assault. Dr Nielssen recommended that the defendant seek further treatment for his drug abuse disorder.

General principles

21 Contempt is a common law offence and there is no maximum penalty: Attorney General in and for the State of New South Wales v Whiley (1993) 31 NSWLR 314 at 320.

22 The court may punish a contempt of court, when the contemnor is not a corporation, by committal to a correctional centre or fine or both: SCR Part 55 r 13(1). While declaratory of the Court's powers to punish for contempt of court, that rule does not exhaustively state the Courts powers: Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 per Kirby P at 314. Rule 13(3) provides that 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.

23 In Maniam (supra) at 314, Kirby P set out the relevant principles to be applied in sentencing a person for contempt of court as follows:

Director of Public Prosecutions v John Fairfax & Sons Ltd

R v Dunbabin; Ex parte Williams

Smith v The Queen

24 There are three classes of contempt, namely technical contempt, wilful contempt and contumacious contempt: Maniam (supra) at 314. The most serious class contempt from the point of view of sanctions is contumacious contempt. The essence of this class of contempt is a conscious defiance of the authority of the court: see Maniam (supra) at 315 and Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 500.

25 Kirby P explained the classes of contempt in Maniam (supra) at 314 - 315 as follows:

"For technical contempts, the Court will usually accept an apology from the contemnor. It may order that the contemnor pay the costs of the proceedings brought to uphold the authority of the courts of law. An illustration of the technical contempt may be found in Ainsworth v Hanrahan (1991) 25 NSWLR 155. That was a case where counsel, in the course of cross-examination of a party, without leave of the relevant court, used answers given by the party to interrogatories administered in other proceedings. No penalty was imposed.

A similar approach is sometimes taken to contempts which are more than technical and which, also wilful, are not found to have been deliberate. An illustration of this class of contempt may be found in Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650. In that case a police officer participated in a police media conference and identified a suspect in a murder investigation in such a way as to interfere in the suspect's right to fair trial according to law. The court found an absence of the specific intent to interfere in the administration of justice. But this was neither an answer nor a defence to the charge. Nor was ignorance of the law of contempt an excuse. The Court, nevertheless, contented itself with declaration that the police officer had been guilty of contempt. It ordered him to pay the cost of the proceedings . . . An application for special leave to appeal to the High Court of Australia from those orders was refused.

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 . . 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 . . . 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.

New South Wales Egg Corporation v Peek

Director of Public Prosecutions v John Fairfax & Sons Ltd

Director of Public Prosecutions v Australian Broadcasting Corporation

26 In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, Dunford J reviewed considerations relevant to contempt offences of refusing to give evidence. His Honour described the following relevant matters for consideration in assessing the proper punishment for contempt:

"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.

27 See also Commissioner for Fair Trading v Partridge [2006] NSWSC 478 at [22] per Bell J.

28 The Crimes (Sentencing Procedure) Act 1999 applies to penalties imposed in relation to contempt of court: see Principal Registrar of Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 at [42] – [45]: R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132; Commissioner of Fair Trading, Department of Commerce v Jenness [2007] NSWSC 439 at [29].

The plaintiff's submissions

The seriousness of the contempt proved

29 The plaintiff submitted that the contempt proved is objectively serious, consisting of conduct that might be characterised as an abusive outburst in court directed at a judicial officer. The plaintiff conceded, however, that the conduct might have been prompted by sudden anger and frustration that was neither premeditated nor part of a larger course of contemptuous conduct. The plaintiff submitted that the defendant's conduct had a significant tendency to reduce the authority of the court, and to interfere with the proper and orderly administration of justice. The following features of the defendant's conduct were said to be particularly serious:

The unprovoked nature of the comments. The transcript shows that the learned Magistrate acted with appropriate courtesy and restraint throughout the proceedings.
The obscene and offensive nature of the words used.
The apparent intention to denigrate the learned Magistrate and to defy the authority of the Court.
The entirely gratuitous nature of the remarks, wholly removed from and unrelated to any legitimate attempt to comment upon or become involved in the proceedings.
The public nature of the remarks in open court in the presence of members of the public.

30 In Prothonotary of the Supreme Court v Smiley (Supreme Court of New South Wales, Simpson J, 8 March 2005, unreported), in response to a magistrate's requirement that the accused not look at her in a particular manner, the contemnor directed a comment to her Honour in terms of "I'll look at you how I want, you fucking piece of shit". Simpson J observed that even when committed by people who act in haste and as a result of disappointment or other stresses upon them, contempt of such a kind could not be tolerated, and that the dignity of the courts is an important matter in preserving confidence in the administration of justice. Her Honour noted that the sentence for contempt is at large, and found very little by way of precedent to assist in determining what could be an appropriate sentence. Her Honour sentenced the defendant in that case to a term of imprisonment of 21 days.

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

31 The evidence does not reveal whether or not the defendant was alive to the consequences of his conduct. The transcript in the Local Court does not indicate that he was made aware by the Magistrate during the course of the proceedings that his conduct might constitute contempt.

Whether the contempt was committed in the context of a serious crime

32 The defendant's conduct amounting to contempt occurred during the course of an application for bail. He was facing charges relating to domestic violence. The learned Magistrate correctly characterised the allegations against him as serious. Part of what she had to say is as follows:

"The applicant for bail in this matter has been charged with two counts of assault involving a domestic partner. In respect of one of the matters he has entered a plea of guilty and in respect of the others, it is a plea of not guilty.

The allegation particularly in relation to the first charge is a very, very serious one, one being that he pinned the victim to a door, grabbed hold of her head and smashed it against the door causing her to fall to the ground and stomping on her head and chasing down the driveway, again grabbing hold of her and pushing her to the ground.

At the time the victim contacted the police and police in attendance obtained a statement from the victim and also showed police the back of her head and police officers say they could feel swelling in the form of a bump.

I am informed in a submission by the defendant's legal representative that a different version of events has been given to police, but I do note that the allegation contained in the application for apprehended violence order is in the same terms as that which is stated in the facts and there is stated in the facts also that police applied for an interim telephone order at the time, and I have no evidence before me that the victim has changed her version of events in relation to the facts of that particular incident.

The second incident the defendant has pleaded guilty to, though he does dispute. Once again it is very serious facts as far as the allegation is concerned. The allegation being that he grabbed the victim by the head and pushed her down and kneed her, noting that their child was present during the assault. Then he punched the victim twice to the head and that there was a tug-of-war over the pram and also noting that the victim was pregnant at the time.

In that particular case I note that the facts say that the victim walked into Macquarie Fields Police Station immediately after the incident. In fact it appears to have occurred right outside the police station and provided police with statements and showed red marks to the police along with scratches and marks on the left of her neck.

The reason for the contempt

33 There are no reasons for the contempt that are apparent from the record of proceedings. However, material annexed to the affidavit of Caleb Franklin sworn 18 July 2008 includes material from the Campbelltown Hospital relating to the defendant's admission to hospital after being "taken into custody after domestic violence" and "under police custody with psychiatric disorder". The hospital notes include a reference to the fact that the defendant was referred for psychiatric assessment, conducted later the same day, which resulted in a diagnosis of the defendant having an "antisocial personality disorder with impulsive self harm behaviour in the past". The defendant was discharged from the psychiatric ward into police custody whereupon he was assessed by an officer of the Department of Justice Health to be at risk of suicide. Dr Nielssen's diagnosis, referred to earlier in these reasons, should also be considered under this heading.

34 The defendant's claim that the Macquarie Fields police had told him that he would be granted bail if he handed himself in is rejected by the plaintiff. According to the plaintiff’s submissions, even if that were to be accepted it would not justify or excuse the defendant's behaviour. Furthermore the plaintiff submits that by raising that allegation in the defendant's letter of apology to the Magistrate he has demonstrated a failure to accept responsibility for his actions.

Whether there has been any apology or public expression of contrition

35 The defendant's apology to this court and to the learned Magistrate has already been noted. Likewise, the defendant indicated his intention to plead guilty to the charge on 4 July 2008. A utilitarian value attaches to the plea: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. Allowance should also be made for the plea of guilty in accordance with the principles enunciated in R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

The defendant's character and antecedents

36 The plaintiff submitted that it was significant that the defendant breached a s 9 bond imposed upon him on 20 September 2006 requiring that he be of good behaviour at the time of committing the subject contempt. This is an aggravating feature in accordance with s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The plaintiff also contends that it is significant that the defendant has on numerous previous occasions breached court orders by failing to appear, contravening community service orders and an apprehended violence order, as well as breaches of recognisances.

Denunciation of the contempt

37 In R v Razzak (supra) at [86], Johnson J, dealing with contempt by a witness refusing to take an oath or give evidence, said:

"There is an overlap between considerations of general deterrence and denunciation of the contempt."

38 The importance of general deterrence was emphasised by Mahoney JA in Smith v The Queen (1991) 25 NSWLR 1 at 23 as follows:

"A punishment must be both appropriate to the offence and be seen publicly to be such. Given Mr Smith's conviction for murder and his life sentence, a further sentence will have no great effect on him: that, no doubt, is why he did what he did. It is the significance to others of the present punishment which has a particular importance. If a witness, particularly a convicted criminal, is seen to be able to defeat the trial of another criminal in this way, others will do it. The result will be that the enforcement of the criminal law and so the protection of the ordinary men and women will become difficult or impossible. 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".

39 Dr Nielssen noted in his report that it seemed likely that the defendant "received a single dose of the sedative diazepam, which is the most commonly prescribed medication for drug withdrawal and as a general calming agent. However, even a single dose of diazepam can have a dis-inhibiting effect on people who are not used to the drug, which may have added to the low mood that is usually associated with amphetamine withdrawal". However, in his affidavit the defendant is said that he takes Valium (that is to say, diazepam) when he needs to and at the rate that is prescribed for him by Dr Singh. The defendant gave a self-report of recent administration of Valium to Justice Health on 21 March 2007. In the plaintiff's submission, the fact that the defendant is used to taking diazepam raises the question of whether there would have been any disinhibiting effect upon him from a single dose of the drug at the time.

Comparable sentences

40 Simpson J observed in Smiley (supra) at [8] that there is, in effect, usually little available in the form of comparable cases to assist in determining an appropriate sentence in any other similar case. However, of the several cases to which my attention has been directed, that case involved the closest factual similarities. As Studdert J observed in Jando (supra) at [56]:

"The penalties varied significantly from case to case. That is by no means surprising because it has to be recognized that what penalty is appropriate in a particular case is so dependent upon the assessment of all its features, including the nature of the contempt and its consequences."

41 The plaintiff submitted that the evidence established that the defendant's outburst in had an objective tendency to interfere with the administration of justice. The defendant admitted that by his plea. In those circumstances the making of the declaration sought by the plaintiff in the summons was a matter unattended by significant controversy. The plaintiff submitted further that, guided by the principles briefly outlined above, and in particular taking into account the needs of general and specific deterrence, having regard to the defendants antecedents, this Court should impose a penalty for contempt. The plaintiff submitted in terms that the imposition of a bond would be a sentence falling at the bottom of the range in the particular circumstances of this case. The plaintiff submitted that an order for the payment of the plaintiff's costs would have no utility having regard to the financial circumstances of the defendant.

Defendant's submissions

42 Mr Haesler accepted the plaintiff’s exposition of the law on contempt and that a contempt in the face of the court comprises acts that interfere with the course of justice: Ex parte Bellanto; Re Prior [1963] SR (NSW) 190. It is also accepted that expletives directed at a judge can found contempt. See, for example, Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 477. However, the power to punish for contempt is exercised to vindicate the integrity of the court and of its proceedings, and is rarely if ever exercised to vindicate the personal dignity of a judge: Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682. It is a power to be used sparingly and only in serious cases. Its usefulness depends upon the wisdom and restraint with which it is exercised: Bellanto (supra) at 192.

43 The defendant submitted that the most objectively serious part of the contempt was the attack upon the impartiality of the learned Magistrate because of her gender, exacerbated by the offensiveness of the language used. He submitted, however, that disrespect to authority by the use of offensive or insulting language is not of itself contempt. Like police, judges and magistrates are by their training and temperament able to resist the sting of insults directed to them: see Hayne J in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [200]. But as with police, they are not required to be completely impervious to insult: see Gleeson CJ in Coleman (supra) at [16].

44 As Harper J said in the offensive language case of Ferguson v Walkley [2008] VSC 7 at [36]:

"[36] It is no offence simply to be angry with the authorities (including, of course, judicial authority). Some people can articulate their anger in measured language that clearly explains their reasons for feeling as they do. Others, especially when their anger is combined with high emotional stress, or alcohol, or other debilitating factors, cannot. . . Depending always on all the relevant evidence, it would probably be quite wrong to charge someone with an offence simply because such language was used in anger."

45 The defendant is in receipt of a disability pension. He has no assets, no savings and no likelihood of acquiring either or employment in the foreseeable future. Since his release from custody following his acquittal on the principal charge, which brought him before the Magistrate in the first place, he has reunited with his wife and has sought to lead a law-abiding life. Mr Haesler submitted that an apology to the court and to her Honour would meet all the necessary objects of punishment. He submitted that a fine would have an unnecessarily harsh impact upon the defendant and his family and that this was a case for restraint and not retributive justice.

Consideration

46 There is no doubt that the contempt charged is serious. The language used by the defendant was profane and the offence that it was undoubtedly intended to convey gratuitous. Whether caused by frustration, anger, drug withdrawal or pharmacologically induced disinhibition, it clearly had a tendency to disturb the orderly administration of justice according to law. It is not without significance to observe that whatever may have inspired or caused the defendant's extraordinary outburst, the objective bystander in the court would have been confronted by it, and might be expected to have formed a view about it, without the benefit of any insight or knowledge of the defendant's particular circumstances at the time. The public perception of what occurred in the Local Court at Campbelltown before the learned Magistrate would have appeared as an undiluted assault on the dignity of the law.

47 Notwithstanding that assault, it is also timely and important to observe the courageous and dignified manner in which the learned Magistrate herself dealt with what unfolded before her. It is an unfortunate fact of judicial life that judicial officers are not infrequently confronted by behaviour of the type exhibited by the defendant on this occasion. It is clear that the learned Magistrate exhibited a particular and commendable calm resilience to the events of that day. However, the resilience of judges and magistrates from time to time is one thing. The administration of justice, which is itself unable without jealously guarded and consistent protection to withstand such attacks, is another thing altogether. Although the remarks made by the defendant were also clearly personally contemptuous of her Honour, the offence charged is that the defendant was in contempt of the court.

48 Notwithstanding these matters, the particular circumstances of the defendant must be taken into account in the process of forming a view as to what is an appropriate penalty to impose upon him. First, I am not satisfied that the defendant's explanation, that he expected to be granted bail and that that expectation was frustrated, is by itself an adequate explanation for what occurred. Frustrations with the judicial process are common but should never be permitted to justify public outbursts of dissatisfaction in the way that occurred here.

49 Secondly, however, the words used were not the product of any obvious or discernible reasoning process. They were clearly the product of anger and associated drug withdrawal as well as the antisocial personality disorder presently afflicting the defendant. Whilst unambiguously directed at the learned Magistrate, no benefit could possibly have flowed to him from his actions. Indeed, quite the opposite is the fact. The defendant's actions are on one view capable of being characterised as impulsive self-harming behaviour of the sort that he had exhibited in a slightly different context on previous occasions.

50 Thirdly, the dignity and reputation of the court remains intact notwithstanding the defendant's outburst. As I have earlier mentioned, an ordinary robust observer would regard the words as inappropriate and offensive. The observer may on one view also find the words used did detract from the influence of judicial decisions if left unremarked and unpunished. However, the patently irrational nature of what was said appears to me put the defendant's conduct into a category less serious than a logical, intelligible and structured attack upon her Honour. I observe again that this is clearly reflected in the commendable and ordered way with which her Honour dealt with the outburst at the time. It is important at all times to recognise the degree to which people in court, particularly unrepresented litigants, may become emotionally wound up so that at key moments they engage in emotional and irrational outbursts and associated behaviour. The defendant was not unrepresented, but the events occurring in court at the time were clearly significant, unpleasant and overpowering for him.

Conclusion

51 The defendant has been subjected to the rigours and uncertainties that these proceedings by themselves have no doubt caused: see, by way of general analogy, R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451. I note the apology of the defendant and the evidence that he gave. Both indicate contrition and remorse. I accept that the imposition of any further punishment upon him will in his particular circumstances be harsh. There is also the prospect that a reasonable and reasoned result from a court system with which he has had such unfortunate experiences may itself have an educative and rehabilitative effect upon him.

52 In the circumstances I consider that it is appropriate to make the following orders:

1. I make the declaration sought in par [1] of the summons.
2. I sentence the defendant until the rising of the Court.
3. I make no order as to costs.

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Citations

Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994

Most Recent Citation

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CITATION:	Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994
HEARING DATE(S):	22 September 2008
JUDGMENT DATE :	22 September 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison J
EX TEMPORE JUDGMENT DATE:	22 September 2008
DECISION:	1. Declaration as sought in par [1] of the summons. 2. Defendant sentenced until the rising of the Court. 3. No order as to costs.
CATCHWORDS:	CONTEMPT – offensive language directed to magistrate in the course of refusal of a bail application – defendant suffering the effects of drug withdrawal superimposed on personality disorder with self-harming tendencies – defendant substantially disinhibited by the effects of diazepam administered whilst in custody – contrition and remorse demonstrated by unreserved apology to the Court and to the magistrate – declaration that defendant guilty of contempt – sentenced until the rising of the Court
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Attorney General in and for the State of New South Wales v Whiley (1993) 31 NSWLR 314 Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Commissioner for Fair Trading v Partridge [2006] NSWSC 478 Commissioner of Fair Trading, Department of Commerce v Jenness [2007] NSWSC 439 Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 Ferguson v Walkley [2008] VSC 7 Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682 Principal Registrar of Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 Prothonotary of the Supreme Court v Smiley (Supreme Court of New South Wales, Simpson J, 8 March 2005, unreported) R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 477 Smith v The Queen (1991) 25 NSWLR 1 Wood v Staunton (No 5) (1996) 86 A Crim R 183
PARTIES:	Prothonotary of the Supreme Court of New South Wales (Plaintiff) Jason Hall (Defendant)
FILE NUMBER(S):	SC 16041/2007
COUNSEL:	L A Babb SC with S G Callan (Plaintiff) A C Haesler SC (Defendant)
SOLICITORS:	I V Knight, Crown Solicitor (Plaintiff) Aboriginal Legal Service (NSW/ACT) Limited (Defendant)