R v Abdallah

[2014] NSWSC 319

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Abdallah; in the matter of Matthew Edward Lewis [2014] NSWSC 319
Hearing dates:	18 March 2014
Decision date:	18 March 2014
Jurisdiction:	Common Law - Criminal
Before:	Campbell J
Decision:	Matthew Lewis, you are convicted of the offence of contempt in the face of the court committed on 17 February 2014 in the trial of R v Abdallah. I sentence you to a fixed term of imprisonment of three months duration commencing on 17 February 2014 and expiring on 16 May 2014
Catchwords:	CRIMINAL LAW - sentence - contempt in the face of the court - plea of guilty - wilful refusal to answer questions
Cases Cited:	Coward v Stapleton (1953) 90 CLR 573 Green v R; Quinn v R (2011) 244 CLR 462 Hili v R; Jones v R (2010) 242 CLR 520 Wood v Staunton (No 5) (1996) 86 A Crim R 183; R v Abdallah (No 2) [2014] NSWSC 111 R v Razzak [2006] NSWSC 1366, 166 A Crim R 132
Category:	Sentence
Parties:	R v Abdallah; in the matter of Matthew Edward Lewis (Offender)
Representation:	Counsel: Ms B Baker, solicitor (Amicus). Mr B Clark (Offender). Solicitors: Crown Solicitors Office (Amicus) Zahr and Zahr Lawyers (Offender)
File Number(s):	2014/78590

EX TEMPORE Judgment

1. I am sentencing Matthew Lewis for the offence of contempt in the face of the court, to which he has pleaded guilty. The terms of the charge laid by me on 17 February 2014 are that he is in contempt of the Supreme Court of New South Wales arising out of his wilful refusal to answer questions asked of him in the trial of R v Abdallah when required to do so. On that day I remanded him in custody, where he has remained ever since.

1. The circumstances giving rise to the charge are fully set out in the written submissions I have received from Ms Baker, solicitor advocate employed in the Office of the Crown Solicitor, who has been appointed amicus curiae by the Attorney General. I am grateful for the Attorney providing her advocacy.

1. Mr Clark of counsel ably represents Mr Lewis.

1. As the written submissions point out, where the contemnor is charged by the trial judge the matter may proceed without the involvement of a prosecutor. In such circumstances it may be necessary for counsel to appear as amicus to assist the judge by making appropriate submissions. This is the case in these proceedings.

1. The facts are not in dispute, and in reciting them I rely heavily upon the submissions provided by Ms Baker. The Crown alleged that Mr Abdallah shot Neal Todorovski a number of times with a handgun at about midday on 4 January 2012 in a residential street in Sans Souci. There was also a second charge of attempted murder of Mr John Leger, which occurred as part of the same continuum of fact giving rise to the murder charge. I sentenced Mr Leger for contempt in the face of the court earlier today.

1. Mr Lewis was an associate of Mr Todorovski and of Mr Leger, and was present at the time the shooting occurred. From the evidence led at Mr Abdallah's trial, it is clear that immediately upon Mr Abdallah producing the gun, Mr Lewis fled. He fled in a generally south-easterly direction towards the corner of Selmon and Campbell Streets, Sans Souci. That was a different direction from that taken by Mr Leger who ran generally north along a driveway between two neighbouring blocks of units. Mr Lewis was not then in a position to give any evidence as to the second count, being the attempted murder count. He was in a position to give evidence in relation to the murder count.

1. In any event, after a trial lasting about four weeks, the jury returned yesterday, Monday 17 March 2014, with a verdict of guilty of the murder charge, but not guilty of the attempted murder charge.

1. Mr Lewis was called as a Crown witness on 17 February 2014. This was by way of a Basha inquiry to ascertain what evidence he could give in the trial proper if called as a Crown witness. That procedure was necessary because at all times since 4 January 2012 Mr Lewis had refused to provide any statement to the police. He appeared by counsel at the committal proceedings and was excused from giving evidence there. Before me the following occurred after he was called as a witness by the learned Crown Prosecutor:

Q. Please state your full name?

A. Matt Edward Lewis.

Q. Mr Lewis, did you know Neal Todorovski? Did you know Neal Todorovski?

A. Yes.

Q. You did know him, Neal?

A. Yes, Neal, yes.

Q. And were you with him on the day he died?

A. No, I don't remember.

Q. You say you "don't remember", what aspect of my enquiry is it you don't remember?

A. I don't remember seeing him.

CROWN PROSECUTOR: (Addressing the court.) I'm told by Mr Clark the position is the same. There is no utility. I'm in your Honour's hands.

HIS HONOUR

Q. Mr Lewis, as I understand the case that I'm going to hear, Mr Todorovski was gunned down in broad daylight in a residential street in Sans Souci and you are said to be a person who was present at the time. Now, without prejudging anything, ordinary people hearing you say "no, I don't remember", are likely to find that to be so absurd that if you had been present at such an event and didn't remember it, as to be can I say laughable, and that an ordinary person might then conclude that saying "no I don't remember" is no more than a device adopted by you for the purpose of avoiding giving evidence in this court. Do you understand what I'm saying? Do you?

A. Yes.

Q. Can I ask you this question: Are you refusing to answer the questions that are required of you in these proceedings?

A. I just answered "I can't remember".

Q. Do you accept you were present? Do you accept you were present when Neal Todorovski was shot?

A. I don't remember, your Honour.

Q. Were you a friend of Neal Todorovski's?

A. Yes, your Honour.

Q. Do you remember being with him on 4 January 2011?

A. I don't remember, your Honour.

Q. Mr Lewis, is there some reason why you don't want to answer questions?

A. No, your Honour, I'm answering them.

Q. If you had any fear of reprisals or anything of that nature, the court has powers that would protect your anonymity, do you understand what I mean?

A. I don't know what that word means.

Q. Sorry, but your identity could be suppressed, do you understand what I mean by that?

A. No, your Honour.

Q. We'd keep it a secret who you were, would that help you if I made orders in that regard?

A. No, your Honour.

Q. It would also be possible for me to make orders if you were scared of something bad happening to you as a consequence of you giving evidence, then I could make an order that you be permitted to give your evidence by the audio visual screen up there?

A. I'm not scared, your Honour, I just don't remember.

Q. Okay. Do you understand, don't you, what I have said, that it just seems absurd that someone who was present when another person was shot wouldn't remember that event?

A. I had had lots of Xanax, your Honour, I just don't remember.

1. I then warned the contemnor that it is a contempt of court to refuse to answer questions. He confirmed that he was aware of that. He also confirmed that he knew that the punishment for contempt includes a term of imprisonment or a large fine. The contemnor specifically confirmed that he was aware he could go to gaol for refusing to answer questions.

1. I gave Mr Lewis the opportunity to discuss his position with Mr Clark who appeared for him then, as he does today. I granted a short adjournment for that to occur.

1. After the adjournment Mr Lewis returned to the witness box and the following transpired:

HIS HONOUR

Q. Come back please and sit down. Mr Lewis, having spoken to your counsel, are you prepared to tell us what you know about the circumstances surrounding Mr Todorovski's death?

A. I haven't really refused to answer any questions, I just don't remember, your Honour."

1. Mr Clark addressed me about the possible connection between the use of Xanax and the apparent absence of recollection experienced by Mr Lewis. For reasons I gave in R v Abdallah (No 2) [2014] NSWSC 111, I refused his application for adjournment.

1. The impression I had then, as a provisional view only, was that Mr Lewis's case fell into the category discussed by the High Court of Australia in Coward v Stapleton (1953) 90 CLR 573 where it was held that a refusal to answer questions lawfully required to be answered in proceedings might be proved by the giving by the witness of answers which are so plainly absurd as to convey an intention not to give any real answer to questions to which they relate. Mr Lewis's guilty plea today confirms my impression of the explanation for what occurred on 17 February 2014.

1. In my judgment in R v Abdallah; In the matter of John Leger given earlier today I fully discussed the principles governing contempt of this nature. I will not restate them here. They are adequately dealt with there. Suffice it to say that contempt of this nature is almost always regarded by this Court as an objectively serious offence.

1. I will return in a moment to the matters relevant to fixing an appropriate penalty. However, it is well that I now set out Mr Lewis's personal circumstances.

1. He currently resides in the State of Queensland with his mother. He is 25 years of age and has been unemployed for some time. He left school at the age of 15 and since then has performed work of a labouring type in the construction industry, when he can find it.

1. Importantly, he has no criminal record whatsoever and I am satisfied that by his guilty plea today he has pleaded guilty at the first available opportunity and that that matter should count in his favour. I should also record that when this matter has been mentioned before me during the R v Abdallah trial Mr Clark has appeared for Mr Lewis and has made it quite clear at all times that his expectation was that a plea of guilty would be entered as soon as the jury returned with a verdict.

1. Mr Clark explained that because of Mr Lewis's impecuniosity, and as he has been unexpectedly in custody since 17 February 2014, his solicitors have been unable to obtain any evidence of a psychiatric or psychological nature to put before the court. I accept that explanation. It might be said perhaps that a pre-sentence report could have been requested, but such a report takes time to be made available. In a case such as this, it may be that that time could work to the disadvantage of the offender.

1. Mr Clark informs me that Mr Lewis, having been present when Mr Todorovski was shot, and having himself been within what might be called the ambit of the threat presented by the armed Mr Abdallah, has suffered symptoms of anxiety and depression since. I accept that he may have suffered such symptoms. That seems to accord with one's ordinary experience of life. However, I could not in the absence of expert evidence accept on the balance of probabilities that he suffers from anything in the nature of a diagnosable psychiatric condition such as a Post-Traumatic Stress Disorder; and, in any event, it is evident on the facts that he has not received any medical treatment for such.

1. The considerations relevant to fixing a penalty in this case are the factors identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 to 185.

1. Mr Clark mentioned that a question of parity might arise between this offender and Mr Leger. I imposed a fixed term of imprisonment of six months on Mr Leger this morning. Having taken the opportunity to review the decision of the High Court in Green v R; Quinn v R (2011) 244 CLR 462 over the adjournment, I am satisfied that the parity principle has no real application to the present case. The parity principle applies to the punishment of co-offenders. Although the limits of that term have not been defined with precision, it is clear that it applies to co-offenders properly so-called, as well as persons who might have different roles in a single criminal enterprise. That principle does not apply to Mr Lewis and Mr Leger in my judgment. They both committed similar crimes independently of each other in the same trial on the same day, they are not co-offenders even in an extended sense. Accordingly, I think it unnecessary to have regard to the sentence passed on Mr Leger in considering the appropriate sentence to impose on Mr Lewis.

1. Having said that, clearly the principle of equal justice applies because general concepts of systematic fairness and reasonable consistency in sentencing must be borne in mind by a sentencing court. However, it is clearly established by authority that consistency in the application of the relevant legal principles does not involve numerical equivalence; Hili v R; Jones v R (2010) 242 CLR 520 at 535-538. According to the plurality in Green at 437[28] equal justice:

requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.

1. The relevant law here is the law of sentencing. Although equal justice will require like offenders to be treated in a like manner, it also requires different outcomes in cases that are different in some relevant respect.

1. Bearing those matters of principle in mind, I turn to the relevant considerations.

1. The first is the seriousness of the contempt proved. As I have said already today and in this judgment, a refusal to answer questions when required in a court of law threatens to undermine the administration of criminal justice, especially in respect of serious crimes. And, as I have said, is objectively serious.

1. Secondly, there can be no question that Mr Lewis was well aware of the consequences to himself of what he did because those matters were made abundantly clear to him both before and after he had the opportunity of taking the advice of counsel.

1. Thirdly, so far as the actual consequences of the contempt are concerned, in my judgment, the evidence of Mr Lewis was of less relevance than the evidence of Mr Leger could have been. This is because, applying hindsight, as the cases suggest one must, Mr Lewis's evidence did not add much to the strong Crown case in respect of the shooting of Mr Todorovski, and it would have added nothing in relation to the attempted murder of Mr Leger given that Mr Lewis was not in any sense an eyewitness to the facts giving rise to that charge. His crime then is less serious, on that score anyway, than Mr Leger's.

1. Fourthly, was the contempt was committed in the context of a serious crime? Undoubtedly it was.

1. Fifthly what was the reason for the contempt? I must say that, as I remarked to Mr Clark in the course of argument, I feel that I have not received in any way, shape or form a satisfactory explanation for the failure of Mr Lewis to give evidence in the trial. I have heard argument on the basis of Mr Clark's submissions, and I do not doubt the sincerity of counsel in any way, quite the contrary, that Mr Lewis had some fear of Mr Abdallah.

1. Mr Abdallah, of course, has been in custody since his arrest in February of 2012. Until he was remanded in custody, Mr Lewis was at large interstate and not in any position, on any evidence before me, to be under any threat from him.

1. Indeed, on the basis of what I have heard in a different context, Mr Lewis is concerned that there may be some network in gaol that may pose a threat if he remains in custody. However, the logic of that is hard to follow. First, he has refused to give evidence, and did not give evidence, so it could not be said that he was any kind of "dog", I think the expression is, according to evidence I heard during the trial. Moreover, the fact that he might be at some threat whilst in custody is a matter which can only be laid at his own feet. He would not be in custody had he not refused to give evidence.

1. Secondly, I have heard, in any event, that the harsh conditions in which he is held currently, to which I will return, are in part a function of the desire of the Corrective Services Department to offer him such protection as can be offered.

1. Accordingly, that there is no explanation given for the offending is a matter of some significance in my consideration of the appropriate sentence.

1. This is not a case where the sixth consideration has been offended by Mr Lewis; that is to say, he has not reneged on any deal he did with the authorities to give evidence in the trial.

1. The seventh consideration is whether there has been an apology or contrition. There certainly has been an apology. Mr Clark very eloquently expressed this on behalf of his client. I accept the apology. That it was expressed by counsel does not diminish its significance given that a person of Mr Lewis's limited education and circumstances in life would be unable to express it in adequate terms. After all, that is why one retains the benefit of skilled counsel.

1. I also accept the guilty plea may involve some element of contrition in this case given that Mr Lewis's contempt was constructive in the sense I have already discussed.

1. However, these matters can only go so far. During the trial Mr Lewis appeared before me by way of audiovisual link represented by Mr Clark. He was on that occasion given the opportunity to change his mind, in the light of his guilty plea I can say purge his contempt, which he declined to do. In those circumstances, whilst, as I have said, the court accepts the apology, its utility is limited.

1. The next matter, the eighth matter, concerns the character and antecedence of the contemnor. As I have already said, Mr Lewis has an entirely clean record. At the age of 25 he is, of course, beyond the age of maturity and, no doubt, understood the ramifications, as I have already found, of the course he adopted in refusing to answer questions. Nevertheless, his prior good conduct is a consideration that he is entitled to have me take into account in fixing the appropriate sentence, and I will do so.

1. I then turn to the ninth and tenth matters together, which are general and personal deterrence, and denunciation of the contempt. These matters are of particular significance in prosecutions of this nature because, as it was put by Johnson J in R v Razzak [2006] NSWSC 1366, 166 A Crim R 132, there is a public interest in ensuring that disobedience of this law will be, and will be seen to be, punished.

1. Mr Clark, whilst acknowledging the difficulties, has argued that I should give consideration in all the circumstances of this case to the availability of some form of non-custodial means of punishment. Clearly a fine is out of the question given Mr Lewis's parlous financial circumstances, him being unemployed. Mr Clark acknowledged that there might be some administrative difficulty given that the intention would be that Mr Lewis would continue to reside in Queensland with his mother. Doubtless there are legislative arrangements for transferring offenders serving a sentence amongst the various states. However, no detailed argument has been put to me today as to what they are. It seems to me that it is likely that the administrative time taken in putting those arrangements in place would probably, in any event, eat up a large portion of the sentence I have in mind imposing.

1. But applying the instinctive or intuitive process that is required of a sentencing judge, I have come to the conclusion that no penalty other than a term of full-time imprisonment is appropriate. It is only in these circumstances that, if I may put it bluntly, an offender will feel the sting of the appropriate denunciation of his defiance of proper legal process.

1. However, taking into account all of the facts, matters and circumstances that are relevant in this case, including the matters I have identified as being in favour of Mr Lewis, I am of the view that, notwithstanding the principle of equal justice, there are relevant differences in this case which indicate that a much shorter sentence than that passed on Mr Leger is appropriate. In particular, I wish to record that I have taken into account the early guilty plea, and in that regard I have allowed what I understand from the authorities to be the maximum available allowance of a 25 per cent discount on the sentence I would otherwise have imposed.

1. Matthew Lewis, you are convicted of the offence of contempt in the face of the court committed on 17 February 2014 in the trial of R v Abdallah. I sentence you to a fixed term of imprisonment of three months duration commencing on 17 February 2014 and expiring on 16 May 2014.

1. I will add to the orders I have so far pronounced that the record be amended throughout so that these proceedings are designated as R v Abdallah; in the matter of Matthew Edward Lewis and that the reference to the Prothonotary as prosecutor should be struck out wherever it appears.

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Decision last updated: 24 March 2014