Prothonotary of the Supreme Court of NSW v A

[2017] NSWSC 495

Supreme Court

New South Wales

Medium Neutral Citation:	Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495
Hearing dates:	20 April 2017
Date of orders:	01 May 2017
Decision date:	01 May 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The contemnor is convicted. (2)   The contemnor is sentenced to a period of 12 months imprisonment to date from 1 May 2017. (3)   I suspend the execution of the whole of the sentence in Order (2) for a period 12 months to date from 1 May 2017. (4)   I direct that the contemnor be released from custody immediately on the condition that he enter into a good behaviour bond for a term of 12 months commencing on 1 May 2017. (5) I make no order as to costs.
Catchwords:	CONTEMPT OF COURT – Where contemnor refused to take oath or affirmation and give evidence – Where contemnor warned of the consequences and adhered to his position – Where reasons for the contempt stemmed from concerns held by the contemnor as to his safety – Where contempt was subsequently purged and the evidence was given – Serious nature of the offending – Particular need for general deterrence – Sentence of imprisonment warranted – Order made that sentence be wholly suspended
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) District Court Act 1973 (NSW) Evidence Act 1995 (NSW) Supreme Court Rules 1970 (NSW)
Cases Cited:	Principal Registrar of the Supreme Court (NSW) v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 R v Foster [2001] NSWCCA 215 R v JCE [2000] NSWCCA 498 R v Razzak [2006] NSWSC 1366 R v Roach [2005] VSCA 162 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Zamagias [2002] NSWCCA 17 Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 Registrar of the Court of Appeal v Raad [1992] NSWCA 207 Principal Registrar of the Supreme Court of New South Wales v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 Tiknius v R [2011] NSWCCA 215 Wood v Staunton (No. 5) (1996) 86 A Crim R 183
Category:	Principal judgment
Parties:	Prothonotary of the Supreme Court of NSW – Plaintiff A – Contemnor
Representation:	Counsel: D Kell SC and M Pulsford – Plaintiff D Dalton SC – Contemnor   Solicitors: Crown Solicitor for NSW – Plaintiff Heenan and Co. – Contemnor
File Number(s):	2014/100945
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By a summons filed on 3 April 2014 the Prothonotary of the Supreme Court of NSW (“the Prothonotary”) seeks the following orders:

1. a declaration that the contemnor is guilty of contempt of the District Court of NSW in that, on 24 February 2014, the contemnor, who had been subpoenaed to attend the District Court at Parramatta to give evidence, refused to take an oath or affirmation and refused to give evidence in a criminal trial at the District Court contrary to an earlier undertaking to do so;

2. an order that the contemnor be punished or otherwise dealt with for such contempt of court;

3. an order that the contemnor pay the plaintiff’s costs of the proceedings;

4. any such order that the Court deems fit.

2. The summons was supported by an affidavit of Brett Thomson of 28 April 2014 and Exh. BT-1 to that affidavit. I was informed at the conclusion of the hearing that order (3) was no longer sought, and was invited to make no order as to costs.

3. The contemnor has entered a plea of guilty to the charge of contempt and accordingly, the matter comes before me for the determination of penalty. At the hearing, senior counsel sought a non-publication order in respect of the name of the contemnor, and any other evidence from which he might be identified. That order was not opposed and was made. I have also anonymised the name of the contemnor for the purposes of this judgment.

THE FACTS

4. The facts of the matter are not in dispute. The following summary is drawn, in part, from the written submissions of the Crown Advocate who appeared on behalf of the Prothonotary.

The events

5. Shortly after midnight on [redacted] thirteen rounds of ammunition were fired at a unit block in western Sydney, penetrating two units in the block in which persons were present. Four offenders were identified in connection with the shooting, one of whom was the contemnor. Specifically, the contemnor was identified as the person who had driven the vehicle containing the other offenders to and from the scene. One of those other offenders was a minor to whom I shall refer as “L”.

6. On the evening of [redacted], the contemnor was arrested and charged with an offence of firing a firearm at a dwelling house with reckless disregard for safety, contrary to s. 93GA(1) of the Crimes Act 1900 (NSW).

The contemnor’s sentence proceedings

7. The contemnor pleaded guilty to the offence in [6] and was committed for sentence to the Parramatta District Court. On [redacted] he appeared before his Honour Judge Lerve and asked that two additional matters on a Form 1 be taken into account on sentence. At the conclusion of the hearing, his Honour sentenced the contemnor to imprisonment for a period of 21 months, which he fully suspended pursuant to s. 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) upon the contemnor entering into a bond. In the course of his remarks on sentence, his Honour noted the assistance which the contemnor had given, and had undertaken to give, to the authorities, which included an undertaking to give evidence against L. His Honour also noted the concession of the Crown as to the discount to which the contemnor was entitled on account of that assistance.

The contemnor is issued with a Subpoena to give evidence against L

8. In late 2013, the contemnor was issued with a subpoena requiring him to attend the trial of L and give evidence for the Crown. L’s trial was due to commence at the Parramatta District Court on 17 February 2014. When the matter came before Acting Judge Phegan on that day, the contemnor failed to appear, necessitating an application by the Crown for an adjournment. In making that application, the Crown Prosecutor said:

This is a case where frankly the Crown case is totally dependent on the evidence of one witness, who was one of the principals in the offence. He has been dealt with and is at his liberty. There was a discount in relation to his sentence for assistance that he promised in relation to the matter. He has been subpoenaed and has not attended and I will be seeking a warrant for his arrest and its on that basis that I seek that the matter stand down if your Honour issues the warrant so that he can be apprehended.

9. His Honour issued a warrant for the contemnor’s arrest and the matter was adjourned until the following day, 18 February 2014. When the contemnor had still not been located on that day, the Crown made an application to vacate L’s trial. The proceedings were adjourned until 24 February 2014. On the morning of 21 February the contemnor was brought before Acting Judge Phegan following the execution of the warrant. On that occasion he was represented by Mr Guirguis, solicitor. In light of the difficulties which had been encountered in locating the contemnor, his Honour ordered that he remain in custody until the commencement of L’s trial.

The contempt

10. When L’s trial came before Acting Judge Phegan on 24 February 2014 the Crown called the contemnor to give evidence. The transcript records the following (commencing at T18 L1):

His Honour:      Ms Crown

Crown Prosecutor:    I think the witness is declining to take the oath.

His Honour:    I think perhaps the first question I should ask you, ….. am I correct in addressing you as (the contemnor)?

Contemnor:       That’s correct.

His Honour:    The reason for your refusal to give an oath is, I understand, because you are refusing to give evidence, is that right?

Contemnor:   That’s correct.

His Honour:   Is the reason for that that you’re concerned that evidence you might give might be used against in some future criminal proceedings?

Contemnor:   No, that’s not correct.

His Honour:   That’s not the concern?

Contemnor:   No.

His Honour: Ms Crown, I could deal with that, but the negative answer to that is some other reason for him refusing to give evidence so it seems to me s128 for the moment at least doesn’t have anything to do with it.

Crown:   No, your Honour, it doesn’t have anything to do with it.

His Honour:   I think the other question …..I need to put to you or question, the other matter I need to be clear about with you is that you understand that there is evidence before me that you have, at earlier time, agreed to give evidence; is that correct?

Contemnor:   I can’t remember, your Honour.

His Honour:   You can’t remember?

Contemnor:   I never - -

His Honour:   Well I’ll remember for you. You have. If that’s the case and because, as I understand it, one reason for the sentence that was imposed on you on an earlier occasion was based on that undertaking, you will now be committed to re-sentenced if you now refuse to give evidence, do you understand that?

Contemnor:   Yes.

11. His Honour then made arrangements for the contemnor to obtain legal advice. The Crown Prosecutor again confirmed (at T33 L28) that the Crown case was entirely dependent upon the evidence of the contemnor.

Events subsequent to the contempt

12. Upon the resumption of the proceedings on the afternoon of 24 February 2014, the contemnor confirmed to his Honour that he had refused, and continued to refuse, to take an oath or affirmation and give evidence. The following exchange then took place (commencing at T33 L48):

His Honour:   I must explain to you that refusal is – in fact I am compelled under those circumstances to cite you for contempt of court and to take whatever steps I consider to be appropriate, including whatever procedures are necessary for the purposes of sentencing you for that offence. In the circumstances I would not take the matter any further than telling you that that is what is going to happen, but giving you the opportunity to get legal advice as to how you should deal with that. Would you like to get legal advice?

Contemnor:      Yes

His Honour:   I will then formally cite you for contempt for refusing to take an oath or affirmation, but I will adjourn any further proceedings in that particular regard to give you an opportunity to seek legal advice, and I will have steps taken, hopefully, to provide possibly the solicitor who gave you advice last week, but certainly someone who can give you appropriate advice in the course of the afternoon if that can be done.

Contemnor:      Thank you, your Honour.

13. Later on the same day, the following further exchange occurred (commencing at T38 L20):

His Honour:   ..... if I may again ask you from where you are, if I could just have the microphone – I understand that you have had some further discussion with a solicitor from Legal Aid; is that right?

Contemnor:      That’s correct, your Honour.

His Honour:   And that on the basis of whatever instructions you gave him he, I understand, you might confirm, that he did not consider it appropriate of necessary to appear on your behalf at this stage?

Contemnor:      That’s correct, your Honour.

His Honour:   At the risk of intruding on solicitor/client privilege in these very difficult circumstances I should ask you whether you did confirm in your discussions with him your decision to refuse to give evidence in these proceedings?

Contemnor:      Yes, your Honour. He told me to – -

His Honour:   You don’t have to tell me what advice he gave you. All I want to know is that he was made aware of or that you confirmed in the course of your discussions with him what you’ve already told me in Court?

Contemnor:   Yes. He told me just to give a defence for why I’m not giving evidence. He asked me to or something.

His Honour:      Sorry, he said that you should give me reasons?

Contemnor:      Yes, about why I’m not giving evidence.

14. There followed a discussion between his Honour and the Crown Prosecutor, following which his Honour (commencing at T39 L25) explained to the contemnor that he had the option of referring the contempt to this Court, or dealing with it himself. The contemnor confirmed that he understood that, quite apart from action being taken against him in respect of the contempt, the Court which imposed sentence upon him would now be asked to reconsider that sentence in light of his failure to adhere to the undertaking that he had given to assist the authorities. In the course of that exchange with his Honour, the contemnor indicated that he had been advised that he should give “his honest reasons why” he had refused to give evidence. His Honour thought it appropriate that the contemnor obtain legal advice before taking that step and the proceedings were adjourned until the following day.

The referral of the contempt

15. When the matter came back before his Honour on 25 February 2014, Mr Guirguis again appeared for the contemnor and the following exchange took place (commencing at T5 L3):

His Honour:   …… I want to be sure …. that he understands by refusing to give evidence he not only exposes himself to resentencing, but quite separately and may well be additionally, a sentence for contempt which may involve a sentence of imprisonment.

Guirguis:      Yes. If your Honour would excuse me for one moment.

His Honour:      Yes. He does understand that?

Guirguis:   I can indicate, your Honour, he was given advice by my colleague yesterday, he was given advice by me this morning. I’ve just confirmed it with him while he’s sitting in the dock, and the answer is yes, he does understand all that, your Honour.

16. Mr Guirguis then indicated to his Honour that the contemnor wished to obtain private representation in relation to the matter. The proceedings were then adjourned until 26 February at which time Mr Kahn, solicitor, appeared for the contemnor. His Honour proceeded to make an order under Part 55 Rule 11(3) of the Supreme Court Rules 1970 (NSW) (“the Rules”) which is in (inter alia) the following terms:

55.11 Motion or proceedings by the registrar

….

(3) Where:

(a) it appears to the District Court on its own view that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, and the District Court refers the matter to the Court for determination under section 203 (1) of the District Court Act 1973 ,

(c) …

the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary to enable the registrar to do so.

17. In a report provided pursuant to s. 203 of the District Court Act 1973 (NSW) and Part 55.11(3) of the Rules his Honour stated the following:

(The contemnor) was subpoenaed to give evidence in the trial of (L), set down for Wednesday 19 February 2014 at the District Court at Parramatta. On that day (the contemnor) failed to attend and a Bench Warrant was issued for his arrest. On Friday 21 February the Bench Warrant was executed and (the contemnor) was taken into custody. Bail was not applied for and he was remanded in custody until Monday 24 February 2014.

On Monday 24 February he was brought before me during pre-trial proceedings in the matter of (L). He refused to take an oath or affirmation and told me that he would not give evidence in the trial contrary to an earlier undertaking to do so. I advised to (the contemnor) that I was obliged to formally cite him for contempt and explained that if he were subsequently found in contempt, he would be sentenced for that offence. I asked him whether he wished to obtain legal advice to which he answered: “Yes.”

Because (the contemnor) was not legally represented on Monday 24 February, I ordered that he appear before me again on Tuesday 25 February and requested that steps be taken to obtain legal representation. On Tuesday 25 February he appeared with legal representation and questions were asked through his legal representative. I was satisfied that he understood that he had been cited for contempt and the consequences of being found in contempt.

On Wednesday 26 February, when he again appeared before me, (the contemnor) was represented by counsel and following submissions from counsel on whether the matter should be dealt with immediately or referred to the Supreme Court, the order was made referring the matter to the Supreme Court under s. 203 of the District Court Act.

The importance of the contemnor’s evidence in the trial of L

18. I have previously noted (at [8] above) that the Crown case against L was totally dependent upon the evidence of the contemnor. That view was shared by counsel for L who described the contemnor as “effectively the Crown case”. In this respect, Acting Judge Phegan made the following observations when the proceedings were before him on 26 February 2014 (commencing at T5 L25):

“…the impact of the refusal to give evidence in this case is, if I may put it, quite profound on the Crown case.

(The contemnor) was the, if not sole, certainly by far the principal Crown witness. It is his evidence and his evidence alone which implicates the accused in the commission of the relevant offence. Without his evidence the Crown would have no case. I think that’s clear from what I’ve already seen...this is not a case of just some evidence that would have assisted the Crown, but it’s the Crown case, and it will significantly undermine the Crown case.

I am still at the point of having to resolve the question of whether the trial should proceed on the basis of the statement previously given by (the contemnor) but there’s no doubt that the Crown case has been significantly weakened by his decision not to give evidence.

19. Addressing the position which might arise in the event that the Crown was successful in relying upon the contemnor’s induced statement in support of its case against L, his Honour said (commencing at T6 L6):

“[The trial] will continue possibly without disruption, but it will certainly only continue…with the Crown with one hand tied behind the Crown’s back, there’s no doubt about that.

…

At best it will proceed…on a basis which would certainly compromise the Crown case. If it doesn’t proceed that of course is an even more serious consequence.

20. Ultimately, his Honour upheld an application by the Crown to rely on the induced statement of the contemnor in the trial of L pursuant to s. 65 of the Evidence Act 1995 (NSW). However, L’s trial was not reached on several occasions before finally coming before his Honour Judge Colefax SC for hearing, without a jury, in March 2016.

The contemnor’s change in position

21. It is accepted by the Prothonotary that on or about 23 October 2014 the contemnor changed his position from that which he had adopted before Acting Judge Phegan. From that point onwards, the contemnor indicated a willingness to give evidence against L at his trial.

The contemnor’s explanation for the contempt

22. I have noted in [14] above that in the course of the proceedings before Acting Judge Phegan on 24 February, the contemnor made reference to wanting to explain why he had chosen to refuse to take an oath and give evidence. For obvious reasons, his Honour was reticent in permitting him to do so. However, such explanation appears in a Pre-Sentence Report which is before the Court, under the heading “Attitude to offending”. The nature of what is set out in that part of the report is such that it should not be further disclosed, other than to say that it goes to the issue of the contemnor’s personal safety. The Crown Advocate took no issue with the veracity of what the contemnor told the author of the report in that respect, and expressly accepted that it amounted to what he described as “non-exculpatory duress” or in other words, duress which, although not sufficient to provide the contemnor with a defence, remains a mitigating factor pursuant to s. 21A(3)(d) of the Sentencing Act.

The contemnor’s appeal against his conviction

23. On 28 January 2016 the contemnor filed an application for leave to appeal against his conviction for the offence contrary to s. 93GA(1) of the Crimes Act 1900 (NSW) for which he had been sentenced by Judge Lerve. On 18 October 2016 the Court of Criminal Appeal (Ward JA, Davies J and RS Hulme AJ) made orders (inter alia) allowing the appeal, quashing the conviction and remitting the matter to the District Court for a hearing de novo pursuant to s. 12(2) of the Criminal Appeal Act 1912 (NSW). In doing so the court found that the contemnor’s liability for the offence contrary to s. 93GA(1) to which he had pleaded guilty was (as the Crown had conceded on the appeal) unsound.

24. Subsequently, the contemnor appeared before her Honour Judge Norton SC in the District Court and entered a plea of guilty to an offence of being an accessory after the fact to an offence contrary to s. 93GA(1). Her Honour noted that the Crown did not take issue with the fact that the period of 73 days which the contemnor had previously spent in custody was an appropriate sentence, and proceeded to make an order under s. 10A of the Sentencing Act, convicting the contemnor but imposing no other penalty.

The contemnor’s evidence in the trial of L

25. On [redacted] L’s trial came before Judge Colefax SC, sitting without a jury. L entered a plea of not guilty and the contemnor gave evidence for the Crown. After the contemnor had given evidence, L entered a plea of guilty to two offences in connection with the events set out in [5] above and was sentenced by his Honour. The fact that L entered a plea of guilty immediately following the contemnor’s evidence is confirmation (if any were needed) of the importance of such evidence in the Crown case against L.

SUBMISSIONS OF THE PARTIES

Submissions of the Prothonotary

26. On behalf of the Prothonotary, the Crown Advocate pointed out that the penalty for the common law offence of contempt is at large, and that the provisions of s. 23A of the Sentencing Act were required to be taken into account in determining an appropriate penalty.

27. The Crown Advocate emphasised the serious nature of an offence of contempt which is constituted by a refusal to be sworn, and/or a refusal to answer questions. He pointed out that in the present case, the contemnor was warned, on more than one occasion, of the consequences of refusing to give evidence and that he had, in the face of those warnings, maintained such refusal. It was submitted that it was significant that this occurred in circumstances where the contemnor’s evidence was critical to the Crown case against L, such that the contemnor’s refusal to give evidence in the first instance precluded L’s trial from progressing. That said, the Crown Advocate expressly accepted that from about 23 October 2014 the contemnor had indicated a willingness to give evidence for the Crown in the proceedings against L and that this amounted to the contemnor taking steps to purge his contempt.

28. As noted at [22] above, it was accepted on behalf of the Prothonotary that the contemnor’s explanation for taking the position that he did stemmed from justified concerns for his safety. The Crown Advocate also drew attention to the fact that in re-sentencing the contemnor on 8 November 2016, Judge Norton SC had recorded that the contemnor had apologised for his contempt.

29. The Crown Advocate emphasised the need for any sentence to reflect considerations of general deterrence, and denunciation of the contempt. In terms of aggravating and mitigating factors under the Sentencing Act, he accepted that there was no identified aggravating factor under s. 23A(2), but that there were a number of mitigating factors under s. 23A(3) which I have discussed more fully below.

30. Ultimately, the Crown Advocate submitted that it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind. However, he accepted that there were “unusual and perhaps exceptional” circumstances in the present case, such that it would be open to me to impose a sentence which did not incorporate a requirement for the contemnor to immediately serve a period of full time custody.

Submissions on behalf of the contemnor   

31. Senior counsel for the contemnor emphasised the circumstances which explained the reasons behind the commission of the offence. Senior counsel was quick to point out that he did not advance those matters by way of an excuse, but submitted that they served to explain the contemnor’s actions, and place them in their proper context.

32. Senior counsel also emphasised the somewhat unusual circumstances which led to the quashing of the contemnor’s original conviction by the Court of Criminal Appeal. He submitted that this had been productive of a significant period of delay, the blame for which could not be laid at the feet of the contemnor, and that this was a relevant matter to take into account. Senior counsel submitted that the contemnor had not been properly advised as to his legal position as to the charge which was originally found against him.

33. Senior counsel also emphasised that on or about 23 October 2014, the contemnor had purged his contempt and had later given evidence against L, as a consequence of which it was clear that L had changed his plea and had been convicted. He also stressed a number of other subjective factors including the contemnor’s plea of guilty, his apology to Judge Norton SC and his lack of criminal convictions (other than that arising from the events referred to in [5] above).

34. Senior counsel described the entirety of the circumstances of this case as “most unusual” and submitted that in all of the circumstances, the matter could appropriately be dealt with pursuant to s. 10A(1) of the Sentencing Act, by imposing a conviction with no additional penalty. Alternatively, he submitted that all of the relevant sentencing considerations could be met by the imposition of a suspended sentence.

CONSIDERATION

35. Before dealing with the particular circumstances of the present case, it is appropriate that I make reference to some general principles applicable to sentences for offences of contempt.

36. In R v Razzak [2006] NSWSC 1366 Johnson J (at [39]) emphasised the serious nature of an offence of contempt of court which is constituted by a refusal to be sworn, and/or a refusal to answer questions. One of the authorities to which his Honour referred was Registrar of the Court of Appeal v Raad [1992] NSWCA 207 where Kirby P had said:

[t]he refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within in. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed.

37. In Registrar of the Court of Appeal v Gilby [1991] NSWCA 235 the Court (Mahoney, Priestley and Clarke JJA) observed:

…it may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the law will be, and will be seen to be, punished.

38. The seriousness of a contempt of this kind is such that it would only be in an exceptional case that a custodial sentence would not be imposed: Principal Registrar of the Supreme Court of New South Wales v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 at [37] per Buddin J.

39. A number of circumstances, both objective and subjective, have been identified as being relevant to the determination of penalty in a case such as the present: Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 at 316 – 317 per Kirby P; Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185 per Dunford J. Those circumstances include:

1. the objective seriousness of the contempt;

2. the contemnor’s culpability, including whether the contemnor was aware of the consequences 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(s) for the contempt;

6. whether the contemnor had 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. considerations of general and personal deterrence; and

10. the need for denunciation of the contempt.

40. Those matters do not, of course, constitute an exhaustive list of relevant considerations. As submitted on behalf of the Prothonotary, the provisions of s. 21A of the Sentencing Act apply to the determination of penalty: Principal Registrar of the Supreme Court (NSW) v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 at 538; [45] per Studdert J.

41. With these matters in mind I turn to address those relevant considerations as they apply to the circumstances of the present case.

42. The serious nature of a contempt constituted by circumstances such as the present has been emphasised on many occasions. A refusal to take an oath and/or to answer questions strikes at the heart of the administration of justice. The contemnor was warned by Acting Judge Phegan of the consequences he faced by taking the course that he did, and thereafter maintaining it. The contemnor did so in circumstances where, on any view, his evidence was a critical component in the Crown case against L, to the point where the Crown in fact had no case against L without such evidence. The contemnor’s refusal to take an oath or affirmation and give evidence prevented L’s trial from proceeding for a considerable period of time. Moreover, the contempt was committed in the context of the contemnor’s own serious offending, in which both he and L were involved, and in circumstances where the contemnor had received a discount on account of his promise to assist the authorities by giving evidence against L.

43. Whilst there are no statutory aggravating factors under s. 21A(3)(2) of the Sentencing Act, it remains the case that when all relevant factors are taken into account, the conduct of the contemnor was of significant objective gravity.

44. That said, there are a number of mitigating factors, both within s. 21A(3) of the Sentencing Act and otherwise. In particular, there is no dispute between the parties that:

1. the offender has no significant record of previous convictions: s. 21A(3)(e);

2. the Pre-sentence report expresses a view that he is unlikely to re-offend: s. 21A(3)(g);

3. the contemnor has good prospects of rehabilitation: s. 21A(3)(h); and

4. the contemnor has expressed remorse, both to the author of the pre-sentence report and to Judge Norton SC, in circumstances where there is no reason to conclude that such remorse is anything other than genuine: s. 21A(3)(i).

45. Further, it was accepted on behalf of the Prothonotary that in taking the position that he did, the contemnor was acting under duress of a kind which, although not sufficient to exculpate him from criminal liability, is nevertheless a mitigating factor: s. 21A(3)(d). It is important to note that the veracity of the matters relied upon by the contemnor to establish that duress have been independently assessed and verified by the authorities.

46. Although the contemnor’s plea of guilty was formally entered before me, the Crown Advocate conceded that the contemnor had given a firm indication of a plea as far back as October of 2014. In these circumstances, the Crown Advocate categorised the plea as “not a late plea of guilty”. In the circumstances, and bearing in mind that the timing of a plea is an important consideration in assessing the discount applicable, an appropriate discount to reflect the plea is 20%: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418; [154] per Spigelman CJ.

47. Senior counsel for the contemnor emphasised the circumstances which resulted in the Court of Criminal Appeal quashing the contemnor’s original conviction. In the course of advancing submissions in relation to that issue, senior counsel submitted it was of some significance that the contemnor had obviously been wrongly advised as to his position in respect of that charge. However in my view, but for the fact that those various circumstances caused some delay in the finalisation of the proceedings against the contemnor, they have little relevance to the sentencing in task. In particular, such matters are largely irrelevant to the circumstances in which the offence of contempt was committed.

48. It must be recognised that having committed the offence, the contemnor purged his contempt about eight months later. Whilst no single factor is determinative, purging the contempt when the opportunity to do so arises is necessarily something that should be encouraged. As such, it is a strong subjective factor. At the same time, the reasons which render the present contempt serious are the same reasons which require that any sentence imposed be such as to properly reflect considerations of general deterrence and denunciation. In Razzak Johnson J explained the reasons for the necessity to take that approach (at [78]):

General deterrence is a most important factor on sentence in this case. Persons who are called as witnesses in criminal proceedings must understand that significant consequences will flow from a refusal to be sworn or affirmed or to give evidence. If witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that in this regard, disobedience of the law will be, and will be seen to be, punished: Gilby at page 26.

49. The importance of general deterrence is not lessened by the non-exculpatory duress to which the contemnor pointed. In Tiknius v R [2011] NSWCCA 215 Johnson J (with whom Tobias AJA and Hall J agreed) said (at [51]):

General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell at 536-539 [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences": Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities (R v Liu at [34]) or to be naive (Anna Le v R at [32]).

50. His Honour’s observations were obviously made in a context different to the present but they are nonetheless apt. As Callaway JA observed in R v Roach [2005] VSCA 162 at [15] (Ormiston and Charles JJA agreeing):

General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat

CONCLUSION

51. The contemnor has presented a strong subjective case characterised, in particular, by the non-exculpatory duress which related to the commission of the offence, and his purging of the contempt at a relatively short time after the offence was committed. However for the reasons I have stated, the nature of the contempt and its consequences constitute an offence of considerable objective seriousness. I was provided by the Crown Advocate with a schedule of penalties imposed in other cases of contempt although in providing that material to the Court, the Crown Advocate was certainly not suggesting that I should set out to achieve some degree of numerical equivalence with any sentence or sentences previously imposed.

52. Notwithstanding the contemnor’s strong subjective case, the objective seriousness of the offending and the need to impose a sentence which properly reflects considerations of general deterrence, require the imposition of a sentence of imprisonment. The submission advanced by senior counsel for the contemnor that the matter could be appropriately dealt with pursuant to s. 10A of the Sentencing Act must be rejected. The disposition of the matter in that way would completely fail to recognise those factors to which I have just referred, and would result in the imposition of a manifestly inadequate sentence.

53. In my view, no penalty other than a sentence of imprisonment is appropriate. Taking into account all relevant factors, including the discount to reflect the contemnors’ plea of guilty, a sentence of 12 months imprisonment should be imposed.

54. However I am satisfied in the circumstances that such period of imprisonment should be wholly suspended. In particular, I am satisfied that such a penalty remains significant, and one which is effective to address the various matters to which I have referred: R v Zamagias [2002] NSWCCA 17 per Howie J (Hodgson JA and Levine J agreeing) at [31] citing R v Foster [2001] NSWCCA 215 at [36] and R v JCE [2000] NSWCCA 498 at [25].

ORDERS

55. For the forgoing reasons I make the following orders:

1. The contemnor is convicted.

2. The contemnor is sentenced to a period of 12 months imprisonment to date from 1 May 2017.

3. I suspend the execution of the whole of the sentence in Order (2) for a period 12 months to date from 1 May 2017.

4. I direct that the contemnor be released from custody immediately on the condition that he enter into a good behaviour bond for a term of 12 months commencing on 1 May 2017.

5. I make no order as to costs.

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Decision last updated: 08 May 2017