Prothonotary of the Supreme Court of New South Wales v Rakete

[2010] NSWSC 665

Reported Decision: 202 A Crim R 117

New South Wales

Supreme Court

CITATION:	Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665
HEARING DATE(S):	17 June 2010
JUDGMENT DATE :	25 June 2010
JUDGMENT OF:	Harrison J
CATCHWORDS:	SENTENCE - contempt – where defendant filmed witness giving evidence at a criminal trial - defendant guilty of performing an act that had a tendency to interfere with the administration of justice – considerations relevant to punishment – Part 55 rule 13 SCR – custodial sentence not warranted – no order as to costs
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Legal Profession Act 2004
CATEGORY:	Sentence
CASES CITED:	Commissioner of Fair Trading, Department of Commerce v Jenness [2007] NSWSC 439 Commissioner for Fair Trading v Partridge [2006] NSWSC 478 Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Her Majesty's Attorney-General in and for the State of New South Wales v Whiley (1993) 31 NSWLR 314 Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994 Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5 R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 Regina v Omar Rustom [2005] NSWSC 61 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183
PARTIES:	Prothonotary of the Supreme Court of New South Wales (Plaintiff) Te Rana Rakete (Defendant)
FILE NUMBER(S):	SC 2009/12446
COUNSEL:	L Babb SC with A Mitchelmore (Plaintiff) L Wells SC (Defendant)
SOLICITORS:	I V Knight, Crown Solicitor (Plaintiff) Legal Aid New South Wales (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

25 June 2010

12446/2009 Prothonotary of the Supreme Court of New South Wales v Te Rana Rakete

SENTENCE

1 HIS HONOUR: On 14 January 2010 I found the defendant guilty of contempt in that I was satisfied beyond reasonable doubt that he performed an act that had a tendency to interfere with the administration of justice: see Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5. I summarised the facts that gave rise to the charge at [4] – [7] as follows:

"[4] The facts are in small compass and not relevantly in dispute. Commencing on 9 September 2008, and continuing for some weeks thereafter, Hassan Ibrahim, Scott Orrock and Paul Griffin were tried before Judge Norrish and a jury on a series of charges including the malicious infliction of grievous bodily harm, malicious wounding, assault and related matters. The trial was conducted at the Downing Centre in Lower Ground Courtroom 4 ('LG4').

[5] It was the Crown case that on 12 September 2004 the accused and a substantial number of other members of the Nomads Motor Cycle Gang were in dispute with the Newcastle Chapter of the gang and attacked the victims of the Newcastle Chapter at their clubhouse. The principal Crown witness was Dale Campton who was one of the alleged victims. The Crown alleged that he had been shot in both knees and beaten by the accused. He was the only witness who provided a statement to the police in the matter. It was considered that Mr Campton was a high risk or vulnerable witness as he had apparently broken some ill defined code of silence for which motorcycle gangs were thought to be notorious.

[6] Mr Campton commenced to give evidence on 10 September 2008 and he continued doing so on 11 and 15 September 2008. His evidence in chief was concluded on 16 September 2008 and he was cross-examined thereafter by senior counsel for Mr Ibrahim. That cross-examination concluded on the morning of 17 September 2008 and he was thereafter cross-examined by counsel for Mr Orrock.

[7] At about 12.15pm on 17 September 2008 the defendant entered the Downing Centre complex and went briefly into courtroom 4 on the ground floor. He then went to the lower ground floor and entered LG4. John Ibrahim, the brother of Hassan Ibrahim, left LG4 about a minute later. The defendant took a seat in the public gallery in a position from which he had a direct and unobstructed view of the witness box. The defendant was in possession of a digital camera. That camera was tendered and became exhibit B in these proceedings. At about 12.45pm the defendant pointed the camera in the direction of the witness box and recorded audio and visual images of the witness giving evidence. He was approached by a Sheriff's officer and deleted the recorded images. He was escorted from the courtroom and the camera was seized. The defendant admitted filming the witness and deleting the images that he had recorded. The camera still contained images of the witness giving evidence contained within a file in the camera, which the police were later able to recover notwithstanding the deletion. These images were also tendered in the proceedings before me. The defendant had not sought permission to film in court."

2 The defendant gave evidence at the hearing. I dealt with that evidence at [9] – [13] as follows:

"[9] The defendant is a steel fixer. On 17 September 2008 he had the day off. He gave evidence that he took a bus from Bondi and alighted at Hyde Park. He went to the Downing Centre court complex. He explained why:


'Q. What did you go in there for?
A. Just to have a look at some court cases.

Q. Why?
A. Just being interested in court cases, like been watching a lot of TV and just wanted to see a real life court cases.'

[10] When he entered the complex he went through security. He placed his possessions in a plastic tray for inspection. This included his camera. He then went to a number of courts in the hope of seeing something in progress. He was ultimately told, 'there's a juicy one in LG4'. He gave the following evidence about it:


'Q. So you went into LG4 and what did you do, where did you go once you were inside that court room?
A. I went in LG4 and had a seat and I just sat and listened for a little while, like of the guy that just listened to some of the questions and yeah.

Q. When you went in, when you got your seat, were there many people in the back of the court room?
A. Yeah, it was pretty full. Very full.

Q. Were there many seats other than the one you sat on available?
A. No.

Q. So you just sat wherever you could?
A. Yeah.

Q. And listened to the court case?
A. Yeah.

Q. Whilst you were sitting and listening did you do something else after a while?
A. Yes, I started video taping.

Q. How long had you been there?
A. 5 minutes.

Q. Why did you video tape?
A. Just wanted a bit of like memorabilia just to take home, cause I thought like it was a murder trial or something.

Q. At some point you stopped the video?
A. Yeah.

Q. What did you do then?
A. I started watching the stuff that I was video taping.'


[11] The defendant said that after he had recorded what took place in the court he deleted it. He said this was because 'it was so far away, it was like people in the way and couldn't really - wasn't really good quality'. The next thing that happened was that police officers sitting in front of him went out and returned with a Sheriff's officer who then asked him to leave the court with her and surrender his camera. This is what he did. He told them that he had been filming and that he had deleted it. He said that he did not see any signs prohibiting filming in court. He did not know anyone involved in the proceedings he filmed.

[12] When cross-examined the defendant explained his position further as follows:


'Q. Even if the images had been a little closer and clearer what was going to be the point of keeping this memorabilia?
A. Just intrigued like a murder trial, I thought it was a murder when I was sitting listening to what the case was about, someone getting shot in the legs with some shot gun you know and a big gang war or something like that, I had never been in any court room like that or involved with any trial like that so it was my first time and like seeing anything like that.

Q. You were taking images to show some mates and say I went to a court room and saw a murder trial do you want to see what it looks like, here is the witness, judge and barrister?
A. Just for myself.

Q. So you could keep it and remind yourself?
A. Pretty much.

Q. But you deleted it because you thought the images were too far away?
A. Yes and there was no sound, I just wanted to hear what they were saying because I was pretty interested in what the barrister was asking the witness or the guy in the box.'

[13] The defendant expressly denied the suggestion when put to him that his purpose in filming the witness was to obtain Mr Campton's image in order that it might be used in some form of retaliatory action against him. The defendant denied that he had gone to the seat in the viewing gallery that had the best view of the witness in the witness box. He also denied that he had ceased filming and had commenced to delete his recorded images only after he had been apprehended as earlier described."

3 I considered the charge upon which the defendant was found guilty at [41] – [47]:

"[41] The test that applies to the second charge permits me to be satisfied beyond reasonable doubt that the defendant's act in filming the witness was an act done in a manner that had a tendency to interfere with the administration of justice. That test is objective. As was said by the High Court of Australia in Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; (1981) 148 CLR 245 at 258:

'An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important (Attorney-General v. Butterworth (1963) 1 QB at pp 725-726; and see at pp722-723; John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p371).'


[42] At one level there is evidence in the present case that the defendant's actions did in fact interfere with the administration of justice, even though the evidence has not satisfied me that the defendant intended that his actions should have that result or effect. The defendant was escorted from the court following a request by a Sheriff's officer that he leave. Even if on one view that is only at the lower end of the scale of seriousness, it must clearly be regarded nevertheless as an interference with the administration of justice. It was at least potentially and probably actually disruptive to the court process and to the smooth and efficient running of the trial.

[43] More particularly, the use of a camera in the courtroom during this trial would have been something that none of the jurors would be likely to have observed at any time before in the course of this particular trial up to that point. It is also a reasonable inference that none of the jurors would have experienced the use of a camera by an apparently unauthorised private person filming from the public gallery at any time previously in other similar circumstances either. A distraction of this sort, potentially interfering with the concentration and focus of jurors and diverting their attention from the very important task confronting them, would clearly have a tendency to interfere with the administration of justice.

[44] The evidence does not deal with the question of whether or not Mr Campton was actually intimidated by what the defendant did. Indeed, the evidence does not reveal whether or not Mr Campton even became aware of what the defendant was doing. It does not matter in any event. It is not difficult to accept that a witness giving evidence against an alleged assailant in the particular circumstances of the case before his Honour might have been distracted at least, if not frightened and intimidated in fact, by the activities of an unknown person seeking to record evidence he was giving on potentially sensitive issues. This would in my opinion be likely to follow in the case of a witness of the presumed fortitude of Mr Campton, let alone a hypothetical witness of 'ordinary' fortitude.

[45] I was referred by senior counsel for the plaintiff to a passage from The Registrar v Unnamed Respondent (Supreme Court of the Australian Capital Territory, Miles CJ, 16 March 1994, unreported), a case dealing with a charge of contempt involving an ASIO officer attempting to take covert photographs within the precincts of the court. His Honour said this:

'24. I conclude then that the ASIO officer was in contempt of court in covertly attempting to photograph inside the court building a person or persons there for a legitimate purpose connected with proceedings being conducted, or about to be resumed, in the adjoining courtroom. The conduct of the officer was close enough in time and space to be regarded as contempt in the face of the court although it did not occur within the view or hearing of the Judge presiding over those proceedings. Contempt in the face of the Court need not involve the actual disruption of the hearing, nor does the absence of an intention to interfere with the administration of justice mean that no contempt has been committed. Otherwise it might be said that the only thing the ASIO officer did wrong was to be found out. In truth the very need for him, as he saw it, to carry out his activities surreptitiously meant that he was using the facilities of the Court for an improper purpose. That in itself is only a starting point. The ASIO officer must have known by any proper objective standard that there was a risk that his activity would become known to his target and to others in the vicinity. Accordingly, by the objective standard, his conduct had a real tendency to put pressure on litigants, witnesses and other persons who must be left to come and go in connection with court business free from threat or harassment. Moreover the public nature of the court process in this country, and the public interest in securing the freedom to attend and observe court proceedings in which the observer has no personal stake at all, is fundamental. That freedom is put at risk when it is to be exercised in the knowledge, or with the apprehension, that representatives of a governmental agency are likely to be within a court building secretly attempting to photograph those persons present whom it considers should be so photographed in the interests of national security.'

[46] His Honour later commented as follows:

'26 . . . It is hardly necessary to add that it must be obvious that if a representative of the media whilst within the court building had taken photographs of persons connected with the trial that would have been regarded as a serious contempt. There is little difference, in my view, between that hypothetical situation and the situation in the present case.'

[47] The fact that the relevant activity in the present case occurred within a courtroom during the running of an ongoing criminal trial only adds to the strength of these remarks and to their applicability to the issues I am required to consider."

General principles

4 Contempt is a common law offence. There is accordingly no maximum penalty: see Her Majesty's Attorney-General in and for the State of New South Wales v Whiley (1993) 31 NSWLR 314 at 320.

5 Part 55 rule 13 Supreme Court Rules provides as follows:

" 13 Punishment


(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."

6 In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314 - 315 Kirby P set out the relevant principles to be applied in sentencing a person for contempt:

"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. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or 'excessive fines': see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695.

*****


For the purposes of punishment, various classes of contempt have been identified in the cases. They include technical, wilful and contumacious contempt. 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 a 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, although 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 have a fair trial according to law. The Court found an absence of a 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 a declaration that the police officer had been guilty of contempt. It ordered him to pay the costs of the proceedings (see ibid at 659). An application for special leave to appeal to the High Court of Australia from those orders was refused."

7 Bell J reviewed the considerations relevant to contempt offences generally in Commissioner for Fair Trading v Partridge [2006] NSWSC 478. Her Honour said this at [22] – [23]:

"[22] I have considered the statement of the matters to be taken into account in sentencing for contempt which were enunciated by Dunford J in Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185 and relied upon by Studdert J in Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; (2001) 125 A Crim R 473. Some of these considerations are of particular relevance in the context of a contempt involving interference with the administration of criminal justice. Others are of general application and include:

(i) The seriousness of the contempt proved;

(ii) whether the contemnor was aware of the consequences to himself of what he did;

(iii) the reason for the contempt;

(iv) whether there has been any apology or public expression of contrition;

(v) general and personal deterrence;

(vi) denunciation of the contempt;

(vii) the character and antecedents of the contemnor.

[23] These considerations are now to be viewed in the context of the provisions of s 3A and s 21A of the Sentencing Procedure Act 1999 (the Act). The latter provision obliges the court to take into account both the aggravating factors set out in subs (2) and the mitigating factors set out in subs (3) that are relevant and known to the court. It is necessary to have regard to any other objective or subjective factor that affects the relative seriousness of the offence."

8 See also Commissioner of Fair Trading, Department of Commerce v Jenness [2007] NSWSC 439 at [29], per Hall J.

9 In Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 at [42] – [45] Studdert J made the following comments:

"[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."

10 In R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132, Johnson J referred to the relationship between general deterrence and denunciation of the contempt. That case involved the refusal by a witness to take an oath. His Honour said this at [86]:

"[86] There is an overlap between considerations of general deterrence and denunciation of the contempt. The vindication of the criminal justice system requires a meaningful sentence to denounce a contempt of this class."

11 In sentencing for contempt in relation to conduct involving jurors or witnesses, the courts have assiduously guarded the role played by each in the administration of justice. For example, in Regina v Omar Rustom [2005] NSWSC 61 at [3], Dunford J said this:

"[3] As I say, he now appears for sentence in relation to that. One can understand him being upset and emotional at the verdict against his brother. But the task of the jury is often very unpleasant and is always onerous, difficult and carries with it great responsibility. Accordingly, the jury must be protected and permitted to perform its function without any threat of intimidation or abuse."

12 Lastly, in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 450, Kirby P made the following comments concerning the protection of witnesses:

"There is no doubt that it is a serious contempt to interfere with a witness by words or actions, in such a way as to diminish or question the privilege of the witness to give evidence to a court without fear or favour. The courts have repeatedly stressed that they will preserve the freedom and integrity of witnesses. They will not allow them to be intimidated from giving their evidence either before a trial, at the hearing or after the trial is concluded…"

Relevant sentencing considerations

13 In considering the several matters that are relevant to the question of what sentence should be imposed, it is convenient to adopt the framework identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185.

The seriousness of the contempt proved

14 The plaintiff contended that the contempt was objectively serious. Senior counsel for the defendant, on the contrary, submitted that the contempt fell at what she described as "the least serious end of the scale". The task that is presented is how properly to characterise the particular acts giving rise to the charge in this case when on one view all contempts are of their very nature serious. Except in cases that can be considered to be merely technical contempts, it must be the case that all contempts are serious and should be so regarded. The defendant's actions in this case were potentially serious but did not ultimately interfere with the administration of justice. The contempt is for that reason not at the most serious end of the scale and in my opinion falls at the lower end.

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

15 The evidence suggests very strongly that the defendant had simply no idea that what he did would have, or was ever likely to have, any consequences at all, and certainly not consequences of the type that ultimately eventuated. The defendant originally faced two charges. The first, upon which I found the defendant not guilty, was a charge that he did an act with the intention of interfering with the administration of justice. Proof of that charge to the criminal standard would necessarily require evidence establishing that the defendant had the requisite intention, and in the face of a denial by him that he had it, one might have anticipated circumstantial evidence at least that tended to support the existence of that intention. The trial that was filmed by the defendant involved allegations concerning members of a motorcycle gang. Accordingly, by way of example, one might have anticipated that there would be evidence linking the defendant to that organisation, or even one like it, at the time or in the past, or at a slightly different level, that there would have been some evidence more generally connecting the defendant to the events that were unfolding at the trial. There was none.

16 The defendant gave evidence about why and how he ended up in the court in the first place. There are curious aspects of that evidence but none that permits me to say that the defendant's explanation was either false or even hard to believe. The fact of the matter is that there is no evidence to the contrary. Taken at face value, therefore, the evidence strongly suggests that the defendant did not know that exposing film of proceedings in court during a trial was unlawful, or that there were consequences for him in doing so. This is to be contrasted with cases in which a defendant throws paint at a judicial officer or abuses a judge or magistrate in foul or disrespectful language. There can be little doubt that threatening a witness or a juror would lead inevitably to well-known or reasonably anticipated consequences for any person found to have done so. The present case is to my mind in a very different category.

The consequences of the contempt on the trial

17 I have already found that the defendant's conduct had the tendency to interfere with the administration of justice, in terms of potentially interrupting the concentration and focus of jurors and diverting their attention from their task: [2010] NSWSC 5 at [43]. I also found that the activities of an unknown person seeking to record the evidence of a witness also had the tendency to interfere with the administration of justice in terms of at least distracting, if not actually frightening and intimidating, a witness of the presumed fortitude of Mr Campton, let alone a hypothetical witness of "ordinary" fortitude: [44]. The plaintiff has quite properly conceded that the seriousness of the contempt was not aggravated by any evidence that showed that the witness or any juror in fact saw the defendant using the camera or that he or she was in fact distracted, frightened or intimidated by what occurred.

18 Tendency and potential are, however, quite different things from consequences in fact. The evidence suggests that, apart from the time that was taken up by the trial judge in dealing with the defendant, there was no direct impact of the defendant's actions in court upon the running of the trial, or upon any of the witnesses who were called, or upon the deliberations or wellbeing of the jurors. There is in particular no suggestion that the witness who was giving evidence at the time was discomfited or even whether he later became aware of what had occurred.

19 There was certainly evidence that the defendant had to be removed from the courtroom during the trial and in the presence of the jury and the witness. There was also evidence that the jury had on the previous day communicated some concerns about the presence in Court of some particular members of the public gallery. However, the defendant's removal from the courtroom was relatively unobtrusive and certainly not disruptive of the proceedings, as the CCTV footage of the incident reveals. Nor is there any suggestion that the members of the public gallery who previously troubled the jury were in any way associated with, or included, the defendant. Once again, this is to be contrasted with the examples cited earlier, where the whole process of a trial is directly assailed and disrupted by the conduct in question.

Whether the contempt was committed in the context of serious crime

20 The plaintiff submitted that the contempt was committed in the context of a trial for significant offences of violence and in respect of a witness who had been a victim of one of the assaults alleged at the trial. However, this is not in my opinion what is anticipated by the notion of the context of serious crime. It will be recalled that in Wood, Dunford J was dealing with a refusal by a witness to answer questions directed to him in the course of giving evidence at a Royal Commission. In that context his Honour said this at 186:

"The contempts were committed in the context of serious crime, in that the corruption disclosed by the Royal Commission saps at the very fabric of the rule of law in our society, and is of the utmost seriousness and concern.

The defendant, when he first appeared before me, gave as his reason for refusing to answer questions what he referred to as client confidentiality. I rejected that excuse, saying (8 June 1995, p 7):

'However, I am satisfied this is not a mistaken belief genuinely held but merely a false excuse which he knows to be false and which he is using in a rather blatant attempt to avoid giving answers which may implicate his associates and/or himself in corruption or other criminal activities'."

21 In Razzak at [58], Johnson J also referred to this topic in the following terms:

"[58] It is clear that the present contempt was committed in the context of very serious crime. It is difficult to imagine a more serious group of offences, including several counts of murder, alleged at the one trial in this Court."

22 There can be no dispute that the trial being conducted before his Honour Norrish DCJ was one involving serious crime. The defendant did not suggest otherwise. However, that is not the end of the inquiry about whether or not the particular contempt with which I am concerned was committed in a context of serious crime for that reason. Having regard to the findings that I originally made, apart from a physical or spatial connection with serious crime, there is no relevant criminal context at all to which I can or should have regard in determining an appropriate sentence. As senior counsel for the defendant correctly observed, all contempts are serious. I do not consider that the acts that constituted the contempt in this case occurred in the context of serious crime, in contrast to a refusal to answer questions during a criminal trial, or a refusal to be sworn for that purpose. The context that is relevant is the substantive context or relationship between the defendant's acts and the court proceedings, rather than the physical context or relationship between them.

The reason for the contempt

23 There is no reason in this case for the contempt. The defendant gave evidence about why he did what he did. That is different to evidence amounting to the reason for the contempt. There was in this case nothing in the nature of an attempt to achieve a favourable outcome by suborning a witness, or to abort a trial by poisoning the minds of jurors, or by attempting to so outrage or influence the mind of a judge that he or she had no proper alternative than to recuse himself or herself from the trial. The actions of the defendant were personal to him. He had no interest in, or connection with, any particular outcome in the proceedings. The contemptuous character of what the defendant did consisted in the tendency it had to interfere with the administration of justice but that character was simply incidental and wholly collateral to its intended purpose.

Whether there has been any apology or public expression of contrition

24 The defendant gave evidence on sentence. He apologised to the Court for any disruption or inconvenience that his actions may have caused. He was not cross-examined. The plaintiff did not suggest that the apology should not be accepted according to its terms. There is no reason to do otherwise.

The character and antecedents of the defendant

25 The plaintiff tendered a summary of the defendant's criminal history. It is brief and insignificant for present purposes. There are no entries that are in any way relevant to the matters that I am required to consider, other than the inference that the defendant had been involved with courts and the criminal justice system between January 2000 and June 2003. All matters in the history were dealt with in the Local Court at Parramatta, Penrith or Waverley.

26 The plaintiff also tendered a pre-sentence report dated 28 April 2010 prepared by Louise Cantrall from the Probation and Parole Service. Part of that report is as follows:

" RELEVANT FAMILY/SOCIAL FACTORS

During the preparation of this current report no contact was had with any other sources of information in respect of confirming Mr Rakete's personal situation. The following information is obtained from Service records and the information obtained from the offender on 19 April 2010.

Mr Rakete was born in New Zealand and two of his four siblings reside in New Zealand. He stated that his other two siblings reside in Australia. It is noted from a previous Report that Mr Rakete's early family life was marked by disruption and his parents separated (with unsettling arrangements for the children) when the offender was an infant. The family members migrated to Australia around that time but it is understood that his father returned to New Zealand a short time later.

When sixteen/seventeen years of age the offender began a relationship which lasted for ten years. There are four children from this relationship and it is understood that alcohol abuse by Mr Rakete was contributory to the breakdown of this relationship approximately three years ago.

Mr Rakete informed this Service he was currently renting a room in a unit and had been at his current address for more than twelve months.

EDUCATION/ TRAINING/ EMPLOYMENT

The offender stated he left school at seventeen years of age in Year 12 but prior to obtaining a Higher School Certificate. He left school, he stated, in order to gain employment to support his partner and child.

Mr Rakete informed this Service he attended TAFE and gained qualifications in respect of Responsible Service of Alcohol and Responsible Conduct of Gambling. He stated he also gained a security licence but was disqualified from holding this licence after he received a conviction for the offence of Assault.

Mr Rakete has previously detailed an employment history of factory work, concreter, forklift driver with short periods of unemployment. He was on sickness benefits in 2002 following a car accident in which he sustained injuries. When interviewed on 19 April 2010 the offender stated he had been unemployed for the previous six months and was currently unemployed.

FACTORS RELATED TO OFFENDING

These were not canvassed during the interview of 19 April 2010.

ADDITIONAL ISSUES RELATED TO COMMUNITY-BASED SENTENCING OPTIONS

While previous Reports by this Service note both alcohol abuse and illicit drug use the offender's current situation is unknown."

27 Ms Cantrall offered the following summary:

" SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS

Having regard to the history of Mr Rakete's contact with this Service it is reasonable to assume that he has a clear understanding of the requirements upon him in respect of the preparation of a Pre Sentence Report coupled with the information regarding the expectations of his cooperation as explained to him during the interview of 19 April 2010. There have been ample times when the author has been available if Mr Rakete chose to make contact with this office.

Mr Rakete's current circumstances are largely unknown by this Service because the offender has failed to make himself available for the purpose of preparing a Pre Sentence Report. In light of such, the non cooperation of the offender is a significant factor in the following assessments.

Suitability for Supervision

Mr Rakete's failure to cooperate with the preparation of this Report might very well be indicative of his ability/willingness to comply with supervision by this Service at this time.

Community Service Order

The offender has been assessed as unsuitable for a Community Service Order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 for the following reasons:

The offender's failure to comply with requests by this Service during the preparation of this Report.

Periodic Detention Order

The offender is eligible but has been assessed as unsuitable for a Periodic Detention Order as per the requirements of s 66(1) of the Crimes (Sentencing Procedure) Act 1999. The reasons for unsuitability are as follows:

The offender's failure to comply with requests by this Service during the preparation of this Report."

28 The defendant also gave evidence that he was currently unemployed and in receipt of a Newstart Allowance from Centrelink in the sum of $440 per fortnight after tax. He had child support obligations that had to be paid from that income and some fines that he had received were being directly debited from that income as well.

General and personal deterrence

29 Personal deterrence would not appear to be a significant factor in this case. It is unlikely to a level approaching certainty that the defendant will ever again find himself in a court equipped with a camera taking pictures of the proceedings. It is patently unnecessary to elaborate further.

30 The same can be said with slightly different emphasis concerning general deterrence. Reported incidents of individuals taking live or still pictures in courts without permission or authority to do so do not appear to be very prevalent. Such conduct is apparently easily detectable, as the efficient and prompt actions of the officers in this case clearly demonstrate. It is also not profitable, so that concerns about dissuading potential perpetrators with avowed commercial incentives do not arise. The need to communicate the seriousness of contempt and the gravity with which the courts view it is adequately achieved in this case by a consistent and uncompromising denunciation of the offending conduct.

Denunciation of the contempt

31 The overlap between considerations of general deterrence and denunciation of the contempt has been referred to earlier. There can never be an acceptable contempt. It is wholly inimical to the administration of justice and to the rule of law. The uncomplicated act of recording live images of court proceedings may appear harmless and innocent and completely anodyne. However, even though that action had no consequences for the conduct of the trial in the present circumstances, it is not to be judged merely by reference to its consequences. The courts are required to remain vigilant at all times in order to ensure that a consistent approach is taken to any actions that have the potential to lower their standing in the eyes of the community or to compromise or imperil the impartial administration of their task.

Comparable sentences

32 In Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994 at [40] I referred to earlier decisions on this topic as follows:

"[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'."

Consideration

33 The Crown Advocate submitted on behalf of the plaintiff that a custodial sentence was not called for in the particular circumstances of this case. In my opinion that was a perfectly proper submission to make. He submitted that a bond was a proper sentence to impose. Senior counsel for the defendant did not suggest otherwise.

34 Even though contempt of court is a serious matter, and the contempt in this case was serious, there is no warrant for imposing a custodial sentence upon the defendant. The sentencing options are also otherwise constrained having regard to the content of the helpful observations and remarks provided by Ms Cantrall, to which I have already referred.

Costs

35 The plaintiff asked that I make an order for costs and that the proper order in this case is that the costs should follow the event. In this case I was asked to order that the defendant pay the plaintiff's costs. I was referred at some length and in some detail to decisions dealing with the power to order costs in a case such as the present. In particular I was referred to the decision of Howie J in Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352 and the decision of McCallum J in Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78. In the former case, at [11] and [20] his Honour said this:

"[11] It is clear in my opinion that a prosecution for criminal contempt, although dealt with summarily, does not fall within the summary jurisdiction of this Court to which Chapter 4 of the Criminal Procedure Act or Pt 75 of the Rules apply. The history of the two jurisdictions makes that clear.

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[20] In my opinion Part 5 of the Criminal Procedure Act has no relevance to proceedings for contempt of Court and the provisions of the Supreme Court Act and Rules apply to the making of an order for costs in the present case."

36 In the latter case her Honour said this at [91]:

"[91] The summary jurisdiction to punish for contempt in this Court is governed by the Supreme Court Act and Part 55 of the Supreme Court Rules : Fraser v R (No 2) (1985) 1 NSWLR 680 at 692D per McHugh JA; DPP (Cth)v Sexton [2008] NSWSC 352 at [9] per Howie J. There are statutory provisions and rules that govern proceedings in which the Court is exercising its summary jurisdiction in proceedings 'under any Act' (Part 5 of Chapter 4 of the Criminal Procedure Act 1986 and Part 75 SCR) but those provisions do not apply when the court is exercising its summary jurisdiction at common law: Sexton at [11]."

37 Section 257G of the Criminal Procedure Act 1986 is in Chapter 5 of Division 4 of that Act. The plaintiff submitted that it followed from the decision in Sexton that it was not open to the Court in this matter to direct that costs be determined under s 257G. However, the plaintiff argued that it was "inescapable" that s 353(3) of the Legal Profession Act 2004 applied. In those circumstances there was no effective means by which a costs order could be quantified and if I were minded to make such an order it would also be necessary for me either to order payment of a specified amount or to grant leave to the parties to approach the Court to quantify the amount if agreement about it could not otherwise be reached.

38 In the circumstances I do not consider that this will be necessary. In Hall at [41] I referred to the fact that the plaintiff in that case had 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. The defendant suggested that the evidence in this case should produce a similar result. There is much to be said for that submission.

39 However, the matter can be disposed of in another way. The defendant was charged with two offences. On 27 November 2009, in email correspondence passing between counsel, he communicated a preparedness to plead guilty to the second charge upon which he was ultimately convicted. That was quite properly treated by the plaintiff as an offer to plead guilty to that charge but the offer was rejected some four days before the trial commenced. The defendant's counsel effectively made no submissions at the trial on the second charge. He was found to be not guilty on the first charge. The significant weight of the evidence and the bulk of the submissions of counsel at the trial were directed to the first charge. There is considerable support for the proposition that the trial would have been wholly obviated if the defendant's offer to plead to the second charge had been accepted in full satisfaction.

40 In my opinion there should be no order as to costs.

Orders

41 In these circumstances, I make the following orders:

1. Te Rana Rakete, you are convicted. You are ordered to enter into a good behaviour bond under s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 12 months to be of good behaviour, to inform the Registrar of the Supreme Court of any change of residential address and to appear before the Court at any time during the term of the bond if called upon to do so.

2. I make no order as to the costs of the proceedings.


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