R v Razzak

[2006] NSWSC 1366

Reported Decision: 166 A Crim R 132

New South Wales

Supreme Court

CITATION:	R v Bilal Razzak [2006] NSWSC 1366
HEARING DATE(S):	29 November 2006
JUDGMENT DATE :	7 December 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Sentenced to a fixed term of imprisonment for 15 months commencing on 20 August 2007 and expiring on 19 November 2008.
CATCHWORDS:	CONTEMPT OF COURT - refusal by witness to take oath or affirmation to give evidence at criminal trial - plea of guilty - approach to sentencing
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Darwiche and Others [2006] NSWSC 1167 R v Abusafiah (1991) 24 NSWLR 531 R v Razzak [2004] NSWCCA 62 R v Taber and Styman; Re Shannon Styman [2005] NSWSC 1329 Trad v Pickles Auction Pty Limited; In the Matter of Carl Trad [2006] NSWSC 1177 Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183 Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644) C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported, BC9601681) Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 Wood v Staunton (No. 5) (1996) 86 A Crim R 183 Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 R v Garde-Wilson [2005] VSC 452 R v Darwiche and Others [2006] NSWSC 926 Wood v Galea (1997) 92 A Crim R 287 R v Thomson and Houlton (2000) 49 NSWLR 383 Attorney General for NSW v Whiley (1993) 31 NSWLR 314 Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 R v Morgan (1993) 70 A Crim R 368 R v Araya (2005) 155 A Crim R 555 Wood v Galea (1996) 84 A Crim R 274
PARTIES:	Bilal Razzak (Contemnor) Regina (Crown)
FILE NUMBER(S):	SC 2006/2373
COUNSEL:	Mr D Price (Contemnor) Mr J Pickering (Crown)
SOLICITORS:	Advance Legal (Contemnor) SC Kavanagh, Solicitor for Public Prosecutions (Crown)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

7 December 2006

2006/2373 Regina v Bilal Razzak

JUDGMENT

1 JOHNSON J: On 29 November 2006, Bilal Razzak (“the Contemnor”) pleaded guilty before me to a charge laid orally against him by Bell J on 14 July 2006 that, on that day, he was in contempt of the Supreme Court of New South Wales arising out of his wilful refusal to take the oath or make an affirmation when required to do so for the purpose of giving evidence in the criminal trial Regina v Adnan Darwiche and Others.

2 The Contemnor had been charged orally by Bell J with contempt of court under Part 55 r 3(a) Supreme Court Rules (“SCR”). Thereafter, her Honour adjourned the contempt proceedings from time to time and, in due course, the Contemnor appeared before me on 29 November 2006 and pleaded guilty to the charge. Although the contempt had not occurred before me, the parties submitted that it was appropriate that I proceed to hear and determine the matter and to pass sentence.

The Criminal Trial - Regina v Adnan Darwiche and Others

3 On 3 April 2006, a trial commenced before Bell J and a jury at which a number of persons were charged with serious crimes.

The Indictment

4 The first count alleged that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales did shoot at Bilal Razzak (the Contemnor) with intent to murder Bilal Razzak.

5 The second count alleged (as an alternative to the first count) that Adnan Darwiche, on 17 June 2001, at Bankstown in the State of New South Wales maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Bilal Razzak.

6 The third count alleged that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales did shoot at Farouk Razzak, with intent to murder Farouk Razzak.

7 The fourth count alleged (as an alternative to the third count) that Adnan Darwiche, on 27 August 2003, at Condell Park in the State of New South Wales, maliciously discharged a loaded firearm with intent to cause grievous bodily harm to Farouk Razzak.

8 The fifth count alleged that Adnan Darwiche, on 29 August 2003, at Lakemba in the State of New South Wales did murder Ali Abdul Razzak.

9 The sixth count alleged that Adnan Darwiche, Naseam El Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Ziad Razzak.

10 The seventh count alleged that Adnan Darwiche, Naseam El Zeyat, Ramzi Aouad and Abass Osman, on 14 October 2003, at Greenacre in the State of New South Wales did murder Mervat Nemra.

The Verdicts

11 On 9 August 2006, Adnan Darwiche was convicted with respect to the second, third, sixth and seventh counts.

12 Naseam El Zeyat, Ramzi Aouad and Abass Osman were convicted of the sixth and seventh counts.

The Sentences

13 On 10 November 2006, Adnan Darwiche was sentenced by Bell J to the following terms of imprisonment (R v Darwiche and Others [2006] NSWSC 1167):

(a) second count - fixed term of imprisonment for eight years;

(b) third count - imprisonment for 18 years comprising a non-parole period of 14 years and a balance of term of four years;

(c) sixth count - imprisonment for life;

(d) seventh count - imprisonment for life.

14 On the same day, Naseam El Zeyat was sentenced to the following terms of imprisonment:

(a) sixth count - imprisonment for life;

(b) seventh count - imprisonment for life;

(c) for the murder of Ahmed Fadha (for which he had been convicted at an earlier trial) - imprisonment for life.

15 Ramzi Aouad was sentenced to the following terms of imprisonment:

(a) sixth count - imprisonment for life;

(b) seventh count - imprisonment for life;

(c) for the murder of Ahmed Fadha (for which he had been convicted at an earlier trial) - imprisonment for life.

16 Abass Osman was sentenced to the following terms of imprisonment:

(a) sixth count - imprisonment for 27 years comprising a non-parole period of 22 years and a balance of term of five years;

(b) seventh count - imprisonment for 27 years comprising a non-parole period of 22 years and a balance of term of five years.

Conflict Between the Darwiche Family and the Razzak Family

17 It will be apparent that the Contemnor is the victim nominated in the first and second counts, in relation to which Adnan Darwiche was convicted on the second count. To identify the context in which the Contemnor was called as a witness for the Crown at the trial before Bell J and a jury, it is appropriate to refer to a number of findings of her Honour on sentence at [3]-[16]:

“3 Each of the offences for which Adnan Darwiche is to be sentenced has its genesis in a dispute between him and the younger generation of the Razzak family. In late 2000 and early 2001 Adnan Darwiche was involved in the supply of cannabis in South Western Sydney. His right-hand man was an associate named Khaled Taleb. Their competition included Bilal Razzak and his cousins, Gehad and Ziad. In February 2001 there was a confrontation between Adnan Darwiche and Khaled Taleb and Bilal Razzak outside Nemra’s Café in Bankstown. Taleb and Darwiche assaulted Bilal Razzak. The incident does not give rise to any charge against Adnan Darwiche and it is irrelevant save that it appears to have marked the commencement of the hostile relations between the two families, which culminated in the commission of each of the offences. After the confrontation there was some further trouble between Bilal Razzak and the younger generation of the Darwiche family. Following one such episode, on the evening of 25 February 2001, a number of shots were fired into Adnan Darwiche’s car, which was parked outside the Darwiche family home in Lilac Street, Punchbowl.

4 Adnan Darwiche viewed the firing of shots at his car, outside his family home, as a serious affront to his standing within the criminal milieu in the Punchbowl – Lakemba area. He believed that Bilal Razzak was responsible for it. Later that night he went with Khaled Taleb and two other associates to a block of units located in Sir Joseph Banks Street, Bankstown, where Bilal Razzak was believed to be living. The driver waited in the car and Darwiche, Taleb and the third man each fired shots at the unit.

5 A few days later there was a meeting attended by members of the Darwiche and Razzak families in an endeavour to settle the dispute between them. During the meeting Adnan Darwiche threatened Bilal Razzak, demanding that he leave the country. A matter of days later Bilal Razzak flew to Lebanon where he remained until early May 2001.

6 The first offence of which Adnan Darwiche was convicted occurred a few weeks after Bilal Razzak’s return to Australia. On the evening of 17 June Adnan Darwiche and another man entered the Razzak family unit in the block in Sir Joseph Banks Street, Bankstown. Both men were wearing full-face balaclavas, they were dressed in dark clothing and each had a Glock-style pistol in his hand. Bilal was in his bedroom, listening to music with his cousin, Samear. Adnan Darwiche opened the bedroom door, pointed his pistol at Bilal Razzak and fired it five times. At least three bullets struck Bilal Razzak; one entered his right flank and passed through his liver, vertebral column, left kidney and part of the colon, exiting on the left side of his body. There were entry and exit wounds to his right and the left knees. For a time following the assault he was paralysed. He has since recovered the use of his legs.

7 Adnan Darwiche was charged with shooting at Bilal Razzak with intent to murder him and in the alternative with discharging a loaded firearm with intent to do grievous harm. He was acquitted of the more serious count. The verdict is readily explained. The discharge of the firearm took place in a confined area in circumstances in which Bilal Razzak was helpless and without any means of escape. There was no obstacle to Adnan Darwiche delivering a coup de gras had that been his intention. As the jury found, it was not. His intention was to kneecap Bilal Razzak and thereby to establish his superiority over him.

8 In the period following the shooting there were further attempts to broker peace between the two families. These were rapidly brought to a head following the release of Gehad Razzak from prison. Gehad was an influential member of the younger generation of the Razzak family. Shortly after his release he met Adnan Darwiche and in the course of the meeting Darwiche agreed to pay a cash sum to Bilal Razzak as compensation for having shot him. The money, a sum of the order of $10,000 or $15,000, was paid to Gehad Razzak on Bilal’s behalf and for a period there was peace between the two families.

9 Around the time the peace agreement was reached Adnan Darwiche abandoned his drug supply business. He was much affected by the death of his father, Farouk Darwiche, and troubled that his father had died without attending the Hajj. Adnan Darwiche became interested in religion, attending the Hajj in 2002 and 2003. Khaled Taleb accompanied him on the first occasion.

10 Adnan Darwiche was overseas in July 2003 when an incident occurred which re-ignited the hostility between him and members of the Razzak family. On 30 July Khaled Taleb was shot by two masked men as he was speaking with a friend in the Halal Butcher’s Shop, Bankstown. He sustained gunshot wounds to each of his legs. The injury to his left foot was particularly severe. He was taken to Liverpool Hospital where he underwent surgery the following day. He remained in hospital for some time. Taleb had a strong belief that his assailants were Gehad and Ziad Razzak.

11 While he was in hospital Taleb spoke with Adnan Darwiche by telephone and told him what had happened. Darwiche returned to Australia shortly after this and visited Taleb in hospital. In the course of his meetings with Taleb in hospital, and at Taleb’s family home following his discharge, Adnan Darwiche made clear that it was his intention to avenge his shooting.

12 I am satisfied beyond reasonable doubt that, regardless of what may have prompted the shooting of Taleb, it was viewed by Adnan Darwiche as a breach of his agreement with the Razzak family. Taleb was known to be his lieutenant and the shooting was an affront to his authority.

13 In August 2003 Frank Razzak’s son, Samear, was living at 106 Yanderra Street, Condell Park (the Razzak premises). Adnan Darwiche believed that Ziad Razzak was also residing at this address.

14 On the evening of 27 August, Adnan Darwiche took up a position on the nature strip near the corner of Fourth Avenue and Yanderra Street from where he had a view of the front verandah of the Razzak premises. He was with a companion. Both were armed with SKS semi-automatic rifles. A third man had been assigned the task of drawing the occupants of the premises outside so that they would be easy targets. In accordance with Adnan Darwiche’s instructions this associate drove along Yanderra Street and pulled up outside the Razzak premises. He fired 11 rounds from a handgun into a white Mazda that was parked outside the premises. The lure worked, just as it had been planned. Frank Razzak came out onto the lighted front verandah. He saw Adnan Darwiche and his companion. He started to call out to them and, as he did so, they both opened fire. In all, 55 rounds were fired in the direction of the verandah of the Razzak premises; 28 from one SKS and 27 from the other. Frank Razzak was not hit. Bullets passed through the aluminium-clad walls of the front bedrooms. Frank Razzak’s teenage daughter, Jomana, who is disabled and cannot walk without assistance, was in one of these rooms. She crouched helplessly on the floor as bullets coursed through the room.

15 Neither Adnan Darwiche nor his fellow gunman possessed any skill in the use of these high-powered weapons. The gunfire, although directed at the verandah of the Razzak premises, was poorly controlled and a number of bullets strayed well to the east of the premises. Two bullets travelled through the western wall of No. 100, across the master bedroom, exiting and travelling through the bedroom of No 98 where they came to rest. Another bullet travelled as far as No. 96 passing through an upstairs bedroom. It is remarkable that no person was injured as the result of this display of uncontrolled gun violence.

16 Adnan Darwiche’s dispute was not with Frank Razzak who was a contemporary of Farouk Darwiche and who was not involved in criminal activity. However, by the time Darwiche came to carry out the shooting in Yanderra Street his intention was to kill any member of the Razzak family. After the shooting Khaled Taleb asked him, ‘Why did you shoot [Frank] , he had nothing to do with this?’, Adnan Darwiche responded, ‘Fuck them. Fuck all of them’.”

18 Bell J at [28] and [33], touched upon some other issues concerning the Contemnor in the course of sentencing Adnan Darwiche:

“28 It was not in issue that in the aftermath of the shooting of Bilal Razzak members of the Razzak family sought out Adnan Darwiche to settle matters between them and that it was Adnan Darwiche who paid the compensation to Gehad Razzak on Bilal’s behalf. Adnan Darwiche matched the description of the physical appearance of the man who shot Bilal Razzak. Khaled Taleb did not. Frank Razzak recognised Adnan Darwiche as one of his assailants. He did not know Khaled Taleb. At the date of the attack on Frank Razzak and at the date of the Lawford Street murders there was cogent evidence that Khaled Taleb could not walk without crutches.

...

33 The shooting of Bilal Razzak is aggravated by the fact it was committed in company and that it was part of a planned criminal activity. It was carried out in a brazen way to stamp Adnan Darwiche’s authority over a rival who was also involved in criminal activity in South-Western Sydney.”

The Contemnor is Called as a Witness on 14 July 2006

19 When the Crown called the Contemnor as a witness on 14 July 2006, the following ensued (T1560-1563):

“CROWN PROSECUTOR: … Could Bilal Razzak be brought up please?

(Bilal Razzak entered the witness-box at 12.50am [sic] )

RAZZAK: I've got nothing to say.

HER HONOUR: Would you like to sit down for the moment.
Q. Are you refusing to give evidence in these proceedings?
A. Yes, I got nothing to say.

Q. At the moment I am dealing with a situation in which the Court officer has sought to administer an oath or affirmation to you, and you responded by saying ‘I've got nothing to say’. I appreciate that you may consider you don't have any relevant evidence to give. That is a different question to the question of whether you are prepared either to take an oath or to make an affirmation and to give answers in accordance with your oath or affirmation truthfully to the questions asked of you. Now you may think that you have no relevant evidence to give, but it may be that the Crown or counsel for the accused take a different view.
A. Yes.

Q. You have been required to attend court today in order to give evidence at a criminal trial.

The relevance your evidence although not apparent to you, is clear to me, and you are required to give evidence. So if I have the officer now again ask you whether you are prepared to take an oath or make an affirmation will you consider your situation?
A. No.

Q. What do you mean by that?
A. I am not going make an oath.

Q. I see, and are you prepared to give evidence on a solemn affirmation to tell the truth?
A. No, I can't, I've got no information to tell.

Are you refusing to give evidence, Mr Razzak?
A. I have got nothing to tell to you?

Q. Are you refusing to give evidence?
A. I am just telling you, I have got nothing to tell you.

Q. Now, Mr Razzak, have you had the opportunity to obtain any legal advice when you understood you were being required to come to court in order to give evidence.
A. Yes.

Q. Do you understand there are consequences that flow, or that may flow to a person who wilfully refuses to give evidence when required to do so?
A. Yep.

Q. You understand that the Court has the power to deal with you for the offence of contempt of court?
A. Yep.

Q. And do you understand that the Court's powers in dealing with a person for contempt of court include both dealing with them by imposing a fine, or by imposing a sentence of imprisonment?
A. Yep.

HIS HONOUR: Mr Crown.

CROWN PROSECUTOR: Yes, your Honour.

HER HONOUR: Oh, perhaps I should make a further inquiry of the proposed witness.

Q. Mr Razzak, do you have a lawyer who you would wish to consult about your situation?
A. I don't need to see a lawyer. I'm all right.

HER HONOUR: Mr Crown, what is proposed?

CROWN PROSECUTOR: Your Honour my instructing solicitor has made contact with Legal Aid and has the number of a solicitor who would be willing to speak to Mr Razzak were he willing to speak to him. I'm not sure that he is. The Crown would ask your Honour to charge Mr Razzak with contempt and it is a question of whether your Honour believes he should be given an opportunity to speak to a lawyer or not prior to that taking place.

HER HONOUR: Thank you, Mr Crown.

Q. Mr Razzak, you understand that. I gather in light of some indication that the Crown had, you understand his solicitor has spoken to Legal Aid -
A. Yep.

Q. --to see if a lawyer can come and give you some advice, if you want it?
A. No, I'm all right.

HER HONOUR: In those circumstances I don't see any utility in deferring the matter in order to obtain further advice. As I understand something Mr Razzak told me a few moments ago he has the had the opportunity to discuss his situation with a lawyer.

Q. Mr Razzak, I charge you with being in contempt of the Supreme Court of New South Wales arising out of your willing [sic] refusal to take the oath or make an affirmation and give evidence in the present proceedings when required to do so.

A. Sweet?

Q. What I intend to do, Mr Razzak, is to stand that charge over until the conclusion of this trial. You will be then be brought back before me and I will deal with you for your contempt. You should understand, Mr Razzak, that whilst the trial continues it is open to you to purge your contempt by indicating to the authorities that you are willing to come to court and give evidence. And if you were to do that, that may purge your contempt?
A. All right.

Q. But if you choose to maintain an attitude of willful [sic] defiance of the Court you will at the immediate conclusion of this trial have the opportunity to put to me any matters you want to about why you have taken the position that you have. But you must understand that you face a sentence for your contempt. That is, you face the risk of going to prison for a determinate sentence because of the attitude that you are taking here today?
A. Sweet.

HER HONOUR: All right, well I will direct that Bilal Razzak be held in custody pending the determination of the charge of contempt of court that I have preferred against him today. I will have him brought before the Court in order to deal with him in relation to that matter upon the conclusion of the present trial. He may be removed from court.”

20 It will be apparent from this extract from the trial transcript that the Contemnor’s position from the outset was to refuse to take an oath or to be affirmed, asserting “I have got nothing to tell you”. Her Honour gave the Contemnor an opportunity to take legal advice, which he declined. The consequences of this stance, by way of prosecution for contempt, were explained to him. The Contemnor was orally charged with contempt. He was informed that he could purge his contempt whilst the trial continued. In adopting the stance which he did, the Contemnor appeared to have taken a considered position in an unemotional way. He was removed from the Court and did not return during the trial.

21 The trial continued to its conclusion and the Contemnor was not called again to give evidence. The Contemnor’s brother, Mohammad Razzak, also refused to be sworn or take an affirmation for the purpose of giving evidence. He was charged with contempt of court and has pleaded guilty to the charge. I will proceed to sentence him today after passing sentence on the Contemnor.

22 Despite the refusal of the Contemnor and his brother to give evidence, Adnan Darwiche was nevertheless convicted of the second count on the indictment. I was informed by the Crown that the evidentiary foundation for the conviction on this count comprised the evidence of Khaled Taleb, Jamal Razzak (the Contemnor’s father) and police, forensic and medical evidence concerning the gunshot wounds undoubtedly sustained by the Contemnor in his home at Bankstown on 17 June 2001.

23 The Crown proposed to lead evidence from the Contemnor with respect to the shooting attack upon him on 17 June 2001 and also the background of disputation between the Darwiche family and the Razzak family. In this regard, the Crown Prosecutor held a statement dated 9 August 2001 from the Contemnor which touched upon a variety of matters relevant to these issues.

The Duress Issue on Sentence

24 Submissions were made on sentence concerning the relevance of duress to the present case.

25 The principles to be applied in a case where a person raises an issue of duress were encapsulated in R v Abusafiah (1991) 24 NSWLR 531, where Hunt CJ at CL (Gleeson CJ and Mahoney JA agreeing), observed at 545:

“ [w] hat the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him [or upon his family] if he did not do those acts. If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.”

26 The Crown conceded, in the present sentencing proceedings, that it could not negative beyond reasonable doubt the first leg arising from R v Abusafiah. The Crown submitted, however, that the second leg was negatived beyond reasonable doubt.

27 By his plea of guilty, the Contemnor admits the elements of the offence of contempt of court, including the second leg arising under R v Abusafiah. Mr Price, counsel for the Contemnor, acknowledged that the plea was entered upon the basis that it was accepted that the Crown could establish beyond reasonable doubt that there was no reasonable possibility that a person of ordinary firmness of mind would have yielded to the threat or fear by refusing to be sworn or affirmed for the purpose of giving evidence.

28 Accordingly, I will approach the question of sentence upon the basis that, although the Crown was not in a position to negative beyond reasonable doubt the subjective leg of duress, it was in a position to negative beyond reasonable doubt the objective leg and that the Contemnor admits that this is the case.

29 The Crown concession acknowledges that it could not establish that, at the time when the Contemnor refused to be sworn or affirmed, there was no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or his family if he did give evidence.

30 For the purpose of determining sentence, it will be necessary to consider the evidence to see if there is positive evidence that the Contemnor was affected by fear at the time. The Contemnor did not give evidence in the sentencing proceedings and this question will need to be considered in light of the evidence which is before the Court.

The Contemnor’s Subjective Circumstances

31 The Contemnor was born on 6 November 1981 and was 24 years of age at the time of the subject offence.

32 His criminal record (Exhibit C) discloses a number of offences between February 2000 and March 2002. These include summary convictions for larceny, goods in custody and traffic offences.

33 On 7 February 2003, the Contemnor appeared at the Campbelltown District Court and was sentenced, for an offence of malicious wounding with intent to inflict grievous bodily harm, to a term of imprisonment for seven years, comprising a non-parole period of four years commencing on 21 August 2003 and concluding on 20 August 2007, with a balance of term of three years expiring on 20 August 2010. For an offence of possess unauthorised firearm (pistol), the Contemnor was sentenced at the same time to imprisonment for two years and six months with a non-parole period of 15 months commencing on 21 August 2002 and concluding on 20 November 2003, with a balance of term of fifteen months concluding on 20 February 2005. An appeal against conviction on the malicious wounding count, and against sentence on the malicious wounding and firearms counts, was dismissed by the Court of Criminal Appeal on 19 March 2004: R v Razzak [2004] NSWCCA 62. Both offences were committed on 20 January 2001. It does not appear that the malicious wounding offence, for which the Contemnor is presently serving a term of imprisonment, was related to conflict between the Darwiche family and the Razzak family. I do note, however, from the judgment of the Court of Criminal Appeal, that the Contemnor pleaded guilty to possessing a firearm on 20 January 2001, explaining that he possessed the pistol “for his own protection” (at [74]).

34 Accordingly, at the time of the present offence, the Contemnor was a sentenced prisoner having been in custody since 21 August 2002.

35 The remarks on sentence of Bell J, set out above, state that, in late 2000 and early 2001, Adnan Darwiche and others were involved in the supply of cannabis in South-Western Sydney and that their competition included the Contemnor and his cousins (at [33]). Her Honour found that his shooting by Adnan Darwiche of the Contemnor on 17 June 2001 was carried out “to stamp Adnan Darwiche’s authority over a rival who was also involved in criminal activity in South-Western Sydney” (at [33]).

36 The Contemnor’s police statement of 9 August 2001 describes his occupation as metal construction worker. Although the Contemnor’s statement to police was tendered in the sentencing proceedings, he did not give evidence before me.

37 The Contemnor was 19 years old when shot by Adnan Darwiche on 17 June 2001. Bell J, at [6], found that five shots were discharged; three of which struck the Contemnor. One bullet entered his right flank and passed through his liver, vertebral columns, left kidney and part of his colon, exiting on the left side of his body. There were entry and exit wounds to his right and left knees. He was paralysed for a time, but has since recovered the use of his legs. Put shortly, her Honour found (at [7]) that the Contemnor had been kneecapped by gunshot.

38 From medical records tendered for the Contemnor in the sentencing proceedings (Exhibit 2), it is apparent that the Contemnor suffered significant injuries in the attack. He remained as an inpatient at Liverpool Hospital until discharged on 13 August 2001 to be followed up as an outpatient.

A Serious Class of Contempt

39 In a number of recent cases, the Court has emphasised the serious nature of contempt of court by way of a refusal to be sworn or affirmed or to answer questions: R v Taber and Styman; Re Shannon Styman [2005] NSWSC 1329; Trad v Pickles Auction Pty Limited; In the Matter of Carl Trad [2006] NSWSC 1177; Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183. In Tran, Buddin J gathered a number of statements from the authorities with respect to this class of contempt (at [26]-[31]):

“26 The relevant principles to be applied are well-established. It is critical that the authority of the courts is not subverted by conduct such as that displayed by the offender. As Kirby P said in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314, the particular purpose to be served in the punishment of those guilty of contempt is to ensure ‘the undisturbed and orderly administration of justice in the courts according to law.’ See also Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435, per McHugh J at 462-3 and per Kirby J at 484-5.

27 In Registrar of the Court of Appeal v Raad (NSWCA, unreported 9 June 1992) Kirby P observed that:

‘ [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 it. 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. (at 14)’

28 In Smith v The Queen (1991) 25 NSWLR 1 Kirby P said that:

‘ [a] blanket refusal to give evidence is reserved by the law to a very small class of persons and office-holders who, for reasons of high policy, are exempted from being compellable witnesses. It is undesirable in principle that this small category should be expanded, particularly when another and different procedure exists fairly to protect a competent and compellable witness in respect of the obligation to answer particular questions. That procedure permits the giving of as much evidence as is possible which does not carry the risk of self-incrimination. It requires the precise formulation of the question alleged to have the objectionable tendency. It permits a judicial ruling (and appellate review) against the touchstone of a concrete interrogation rather than the kind of global objection ventured here. It allows a court to judge more accurately the justifiability of the witness’ refusal to answer. That refusal can be tested against the suggested risk which the witness faces. It permits decisions to be made on concrete facts rather than hypothesis and speculation.
These are good reasons for adhering to the rule that to refuse to be sworn (or to affirm) or to give evidence such as occurred here amounts to a serious contempt in the face of the court. It is serious because courts decide cases on the basis of evidence. If evidence is unjustifiably withheld, the administration of justice is impeded. (at 10’)

29 Mahoney JA observed that:

‘ [c] onduct of this kind will not be deterred by admonition or by gesture: it is necessary that the punishment for it be direct, immediate and exemplary. (at 23)’

30 In Registrar of the Court of Appeal v Gilby (supra) the Court said:

‘ [i] t 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. (at 27)’

31 In Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 the Court observed that:

‘ [a] conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314:
‘…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an appropriately emphatic way.’
Being a common law offence there is no statutory maximum penalty. (at 320)”’

40 Some further statements in decisions of the Court of Appeal are also pertinent. In Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644), Mahoney, Priestley and Clarke JJA said at 22:

“Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do.“

41 In C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported, BC9601681), Mahoney P said at page 1:

“It is proper that the seriousness of what the applicant did be properly understood. It is the duty of members of the community to give evidence when properly called before a court to do so. Refusal to do so may have serious consequences in the particular case: an innocent person may be convicted or a guilty one may escape punishment. Equally important, it may be thought in the community that the proper course of justice may be ignored or impeded; public confidence in the due administration of the law may be destroyed.”


Some Factors Relevant to Sentence

42 The Crimes (Sentencing Procedure) Act 1999 applies to the sentencing of persons convicted of contempt: Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at 537-538 [42]-[45]. I should have regard to the general sentencing principles in s.3A of that Act together with factors referred to in s.21A of the Act which have application to the present case.

43 In Wood v Staunton (No. 5) (1996) 86 A Crim R 183, Dunford J at 185 identified 10 relevant matters for consideration in assessing the proper punishment for this type of contempt. Since that decision, it has been common for sentencing judges to consider these factors in the context of the particular case before the Court: Jando at 532-535 [17]-[35]; Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 at [63]-[90]; Trad at [8]-[19]; Tran at [34]-[35]. I will adopt the same approach in this case.

Seriousness of the Contempt Proved

44 Refusal to be sworn or affirmed and thus to give evidence can only be regarded as very serious. Where a person with relevant evidence to give declines to give evidence, it strikes at the heart of the system of the administration of justice: Jando at 533 [19].

45 The present contempt occurred in the context of a trial for very serious charges including murder, attempted murder and serious shooting offences. The refusal of the Contemnor to give evidence had a real tendency to frustrate the administration of justice both with respect to the first and second counts (which related to the shooting attack upon him) and to all counts (where the history of disputation between the Darwiche family and the Razzak family was relevant).

Whether the Contemnor was Aware of the Consequences to Himself of What he Did

46 It is clear that the Contemnor was aware of the consequences of his refusal to be sworn or affirmed and to give evidence.

47 Bell J took some time to explain to the Contemnor the powers of the Court to deal with contempt of court, and provided him with an opportunity to seek legal advice if he so wished. The Contemnor declined the opportunity to seek advice. The Crown then submitted that a charge of contempt should be laid. Her Honour, once again, raised with the Contemnor the prospect of him obtaining legal advice. The Contemnor again declined that invitation. It was only then that her Honour charged the Contemnor with contempt of court.

48 Her Honour explained that it was open to the Contemnor to purge his contempt whilst the trial continued. The Contemnor did not do so.

49 It is apparent that the Contemnor was well aware of the consequences of his actions in refusing to be sworn or affirmed on 14 July 2006.

The Actual Consequences of the Contempt on the Relevant Trial

50 Despite the stance taken by the Contemnor (and his brother), the trial continued and Adnan Darwiche was convicted on the second count.

51 From the remarks on sentence of Bell J (at [7]), it is apparent that the acquittal of Adnan Darwiche on the first count was unrelated to the refusal of the Contemnor to give evidence. As mentioned earlier, it appears that the conviction on the second count resulted essentially from the evidence of Khaled Taleb and the Contemnor’s father, Jamal Razzak, together with formal police, scientific and medical evidence.

52 In these circumstances, the actual consequences of the contempt with respect to the first and second counts was limited. It must be said, however, that the stance of the Contemnor must have reduced the prospect of conviction on the second count.

53 With respect to the other counts on the indictment, the refusal of the Contemnor to give evidence had a greater capacity to actually interfere with the course of justice in the proceedings.

54 The Contemnor’s evidence was not confined to the first and second counts, but provided important evidence to explain the relationship between the Darwiche family and the Razzak family which would serve to explain the various attacks, including fatal attacks, upon members of the Razzak family which were charged against the various accused at the trial.

55 The Contemnor was a most important Crown witness and his refusal to be sworn or affirmed left the Crown case, in many significant respects, dependant upon the evidence of Mr Taleb only. As it happened, it is clear that the jury accepted the evidence of Mr Taleb given the verdicts returned.

56 It should be borne in mind that an assessment, after the event, of the impact of the contempt upon the trial involves the “wisdom of hindsight”: R v Garde-Wilson [2005] VSC 452 at [18]. At the time when the Contemnor refused to be sworn or affirmed, the consequence of the loss of his evidence to the trial could not be realistically assessed. It could not be said, and the Contemnor could not have genuinely believed at that time, that the stance he took would have little impact on the trial.

57 I am satisfied that the actual consequences of the contempt were substantial given the loss to the Crown case of important evidence from the Contemnor.

Whether the Contempt was Committed in the Context of Serious Crime

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.

The Reason for the Contempt

59 The Contemnor offered no reason to Bell J on 14 July 2006 for his refusal to be sworn or affirmed. Nor did he give evidence in these sentencing proceedings. There is no evidence from the Contemnor that he acted as he did by reason of fear or threats.

60 However, the evidence before me raises a number of matters which shed light upon this issue.

61 The following matters were relied upon in support of a submission that it was a reasonable possibility (not excluded by the Crown) that the Contemnor’s subjective fear might explain the stance taken by him in the witness box on 14 July 2006:

(a) The Contemnor, at the age of 19 years, had been shot and seriously injured in the attack in his home on 17 June 2001.

(b) Adnan Darwiche was charged with that shooting, and the Contemnor was called to give evidence in the presence of Adnan Darwiche on 14 July 2006.

(c) Following the shooting of the Contemnor on 17 June 2001, other members of the Razzak family were shot at (some fatally) - Farouk Razzak was shot at on 27 August 2003, Ali Abdul Razzak was shot dead on 29 August 2003 and Ziad Razzak was shot dead on 14 October 2003.

(d) Adnan Darwiche and others were on trial in July 2006 for these further crimes committed against members of the Razzak family.

(e) In a statement dated 7 September 2005 (Exhibit A, Tab 11), the officer in charge of the case, Detective Inspector Oxford, outlined the investigation into a series of shooting incidents arising from “an ongoing feud between the Darwiche and Razzak families” . Detective Inspector Oxford expressed the opinion “that there had been a number of incidents directed towards witnesses in these matters that have been instigated to send a clear message to the community and in particular persons who are considering giving evidence in matters in which members of the Darwiche family and their associates have been charged with criminal matters” and “that a fear campaign is being conducted by the Darwiche family and their associates in an effort to discourage witnesses from testifying in any matter concerning their family or associates” (paragraph 19). On 19 April 2005, a witness who gave evidence under the pseudonym of Bill Johnson was shot at outside his home whilst committal proceedings were running involving Adnan Darwiche and others at which Mr Johnson was to give evidence. On 13 May 2005, a vehicle carrying another witness using the pseudonym Alec Evans was forced into the gutter and subjected to gunfire (paragraphs 21-22). Detective Inspector Oxford expressed the opinion that the shooting at both witnesses was “clearly targeted and cannot be considered a coincidence” and that they were “a means to eliminate them from providing evidence” (paragraph 23).

(f) A number of incidents occurred during the evidence of Mr W (a witness whose name is subject to a suppression order) which included overt verbal threats by the accused in Court to a witness during the currency of the trial (Exhibit A, Tabs 12, 14, 15 and 16). The agitated and aggressive conduct of the accused is outlined in a judgment of Bell J of 19 April 2006 ( R v Darwiche and Others [2006] NSWSC 926) in which her Honour directed that the evidence of Mr W and another witness, Mr X, ought be taken by audio-visual link. Bell J accepted on a voir dire at [25] that “Mr W and Mr X each held fears about giving evidence in the presence of the accused” and that, as they would be required to give evidence again at the trial, “the interests of justice included ameliorating the strain imposed upon each of them in being required to give evidence in the proceedings on more than one occasion”. Whilst giving evidence in Court on 6 July 2006, Mr W was subjected to verbal abuse by a number of the accused, culminating in the trial Judge directing that the accused be removed from the court (Exhibit A, Tab 15, T996-998). Following this incident, Bell J directed that the balance of the evidence of Mr W be taken from a location outside the courtroom by audio-visual link (Exhibit A, Tab 16).

(g) During the hearing of pretrial applications in March 2006, applications were made for pseudonym orders, and the use of a screen to block the facial features of a witness, based upon fears held by witnesses concerning the giving of evidence against the various accused (Exhibit A, Tabs 17 and 18). Evidence was given by Detective Sergeant Tuckerman on 31 March 2006 with respect to the concerns of witnesses (Exhibit A, Tab 18, T706ff) and pseudonym orders were made.

(h) During the course of the evidence of Mr Taleb, on 11 July 2006, taken from a location outside the courtroom by audio-visual link, a verbal exchange took place between Adnan Darwiche and Mr Taleb which was initiated by Adnan Darwiche, and which led to a direction by Bell J that Adnan Darwiche not be present in Court during the balance of the evidence of Mr Taleb (Exhibit A, Tab 20, T1228-1230).

(i) A statement of Senior Correctional Officer Anthony Sheean dated 6 November 2006 (Exhibit A, Tab 9) indicated that the Contemnor was present in the Downing Centre cell complex on 13 February 2006 and 14 July 2006 at the same time as Adnan Darwiche and his co-accused were present in the same complex. Steps were taken to keep the Contemnor separate from the Darwiche group. However, whilst the Darwiche group were being escorted to Court, they were heard to yell abuse and insults at the Contemnor in English and Arabic and the Contemnor yelled back abuse and insults in English and Arabic.

62 Mr Price submitted that this body of evidence pointed to a level of violence of an extraordinary and protracted nature directed at persons opposed to Adnan Darwiche and his associates. In submissions, the Crown acknowledged that the trial was marked by incidents of aggression and abuse and the expression of fears by Crown witnesses, some of whom were permitted to give evidence by audio-visual link as a consequence.

63 Although a subjective apprehension of danger is not sufficient to constitute duress, it may be taken into account in mitigation of penalty where a contemnor is guilty of contempt: Wood v Galea (1997) 92 A Crim R 287 at 291; Trad at [15]-[16]; Tran at [16].

64 Accordingly, if the Contemnor acted as he did by reason of subjective fear, this is capable of operating as a mitigating factor on sentence for contempt of court. This principle is reflected in s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999 which provides, as a mitigating factor on sentence, circumstances where “the offender was acting under duress”. Clearly, the word “duress” in this provision relates to partial duress in the sense of subjective fears in accordance with the first leg in R v Abusafiah.

65 There is no evidence from the Contemnor in these sentencing proceedings on this question. The events surrounding his refusal to take the oath or be affirmed on 14 July 2006 indicate the adoption by him of a considered position in an unemotional way. Nevertheless, given the body of evidence referred to earlier at [61], I accept that there was some measure of subjective fear in the Contemnor at the time when he committed his contempt.

Whether the Contemnor Has Received Any Benefit by Indicating an Intention to Give Evidence

66 The evidence does not suggest that the Contemnor received any benefit by indicating an intention to give evidence at the trial.

Whether There has Been Apology or Public Expression of Contrition

67 No apology was offered by the Contemnor nor has there been any expression of contrition.

68 The Contemnor was informed of his ability to purge his contempt before the end of the trial, but he did not do so.

69 The Contemnor pleaded guilty to the charge on 29 November 2006. Prior to that time, the matter had been before Bell J on a number of occasions with no indication being given that a plea of guilty was to be entered. In fact, the proceedings were listed for hearing before me upon an understanding that they would be defended upon the duress ground. I do not consider that any element of contrition flows from the Contemnor’s plea of guilty.

70 I take into account the fact that the Contemnor has pleaded guilty to the charge: s.21A(3)(k), s.22 Crimes (Sentencing Procedure) Act 1999. Some limited utilitarian value attaches to the plea, although it was entered only on the day fixed for the hearing. It was clear that any defended hearing would focus upon the issue of duress, which may have involved the Contemnor giving evidence. Following his plea of guilty, the Contemnor has not given evidence in the sentencing proceedings. As a consequence, there was some saving of court time. I propose to make a modest allowance for the plea of guilty in these circumstances: R v Thomson and Houlton (2000) 49 NSWLR 383.

The Character and Antecedents of the Contemnor

71 The Contemnor’s criminal record contains a number of convictions, including convictions for serious offences for which he is presently serving terms of imprisonment. Perusal of the judgment of the Court of Criminal Appeal in R v Razzak indicates that the malicious wounding offence does not appear to relate to any history of conflict with the Darwiche family. However, as mentioned earlier, the Contemnor explained his possession of a pistol (on 20 January 2001) as being required “for his own protection”.

72 The Contemnor was 19 years of age when shot in June 2001 and 25 years of age when he committed the present offence. Findings were made by Bell J (at [3]) that the genesis for the offences arose out of a dispute between Adnan Darwiche and the younger generation of the Razzak family, including the Contemnor. Her Honour found that Adnan Darwiche shot the Contemnor to stamp his authority over a rival who was involved in criminal activity (drug distribution) in South-Western Sydney (at [33]). It is clear that Adnan Darwiche harboured strong ill feelings towards the Contemnor in June 2001 giving his kneecapping of the Contemnor by gunshot to establish his superiority over him (at [7]). As Bell J observed, Adnan Darwiche had the opportunity to shoot the Contemnor dead, but did not do so. The circumstances of the shooting support the conclusion of Bell J that the Contemnor was himself a crime figure in June 2001 to whom Adnan Darwiche wished to send a clear and unmistakable message by the infliction of severe injury.

73 Both the Contemnor’s criminal history, and the circumstances giving rise to his shooting in June 2001, provide him with no assistance on sentence for the present offence.

General and Personal Deterrence and Denunciation of the Contempt

74 In sentencing for contempt of court arising out of a witness’ refusal to give evidence, it has sometimes been observed that personal deterrence is not a significant factor because it is not thought likely that the contemnor will find himself again in the same circumstances: Trad at [19].

75 I do not think that this approach is apt to the present case. The events giving rise to the present trial involve a history of conflict between the Darwiche family and the Razzak family extending back to 2001. The Contemnor has been in custody since August 2002. It is true that Adnan Darwiche and his co-accused at the trial (with the exception of Abass Osman) are now serving sentences of life imprisonment.

76 Nevertheless, it appears that shooting attacks on Crown witnesses occurred in April and May 2005 which the police attributed to supporters of the Darwiche family. Only time will tell whether there is ongoing conflict between members of the Darwiche family and the Razzak family after the Contemnor is released from prison.

77 I raise these matters for the purpose of observing that it is not an entirely theoretical possibility that, at some future time, the Contemnor may find himself as a potential Crown witness with respect to some other crime. In these circumstances, I am satisfied that personal deterrence is an important factor on sentence for this offender. The absence of any expression of contrition or remorse is important on this aspect as well.

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.

79 I have mentioned earlier in this judgment (at [40]-[41]) statements from Gilby and C v Registrar Court of Appeal where strong emphasis was placed upon the duty of citizens to give evidence in criminal trials. In the present case, the Contemnor was a member of a family on one side of a conflict which involved, from the Darwiche side, the infliction of force, including lethal force, against the Contemnor’s side of the dispute. A number of witnesses from the Contemnor’s family were called by the Crown to give evidence at the trial. The Contemnor and his brother refused to give evidence. The Contemnor’s father did give evidence. The father’s evidence played a significant part in the conviction of the accused at the trial.

80 There is a body of evidence before me pointing to a pattern of intimidation from, and on behalf of, Adnan Darwiche and his associates directed at witnesses to be called in criminal proceedings against them.

81 The response of the justice system to these circumstances must be to facilitate the giving of evidence by witnesses and to minimise the effects of intimidation. This can be done by various means, including the use of witness protection (for witnesses in the community), protective custody (for witnesses in custody) and the giving of evidence from a remote location by audio-visual link. Other protective measures are no doubt also available to the authorities.

82 In addition to these measures, however, it is important that the courts send a message that refusal by a witness to give evidence in criminal proceedings, through fear or otherwise, will not be treated lightly.

83 The principle of general deterrence has application in this context by reinforcing an understanding in future witnesses in criminal trials that a refusal to give evidence will be met by stern penalties. Without application of this fundamental concept to the criminal justice system, there is the prospect that accused persons and their associates will be encouraged to intimidate witnesses, and witnesses will be encouraged to succumb to intimidation in the belief that little or no penalty will result. Such a consequence would undermine the criminal justice system in a profound way.

84 The lawlessness which may explain violent disputes on the streets between rival groups or gangs must not be transported into the courts so that the lawful authority of the courts is defied by witnesses (from one side of the dispute) refusing to participate in a criminal trial of persons on the other side of the dispute.

85 I acknowledge that the Contemnor was in custody serving a sentence of imprisonment when called to give evidence. Additional pressures may exist with respect to witnesses who are called to give evidence, from custody, in criminal proceedings. That said, there is no evidence before me that, as a result of any fears which he may have had, the Contemnor sought to be placed in protective custody or requested the taking of additional measures to support him whilst he fulfilled his obligation as an important Crown witness in a most serious criminal trial.

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.

Determination of Punishment

87 There is no statutory maximum penalty for the common law offence for contempt of court: Attorney General for NSW v Whiley (1993) 31 NSWLR 314 at 320C. Punishment for contempt is referred to in Part 55 r 13(1) SCR, but this rule confirms the Court’s power of punishment but does not exhaust it: Registrar of the Court of Appeal v Maniam [No. 2] (1992) 26 NSWLR 309 at 314D.

88 Mr Price emphasised, in submissions, the evidence pointing to a reasonable possibility of subjective fear on the Contemnor’s part and other matters including his plea of guilty. He acknowledged that an additional term of imprisonment was appropriate in the circumstances of the case, but submitted that a sentence in the order of one to three months’ imprisonment commencing in August 2007 would be appropriate, having regard to the unusual circumstances of the case. Mr Price submitted that the contemnor in Gilby was sentenced to imprisonment for six months for an offence of contempt which, so he submitted, was objectively more serious than the present offence.

89 I have given careful consideration to the submissions made on sentence. Insofar as Mr Price invites comparison between the present case and Gilby, care must be exercised in considering sentences imposed in other matters which do not involve co-offenders: R v Morgan (1993) 70 A Crim R 368 at 371; R v Araya (2005) 155 A Crim R 555 at 566-568 [67]-[72]. I do not consider that sentences for contempt, in other cases, provide a safe guide to the proper tariff or punishment for contempt of court given that the nature of the contempt itself, and its consequences, vary so greatly between the cases: Wood v Galea (1996) 84 A Crim R 274 at 277; Jando at 539-540 [56]; Tran at [38].

90 Drawing together the conclusions which I have expressed earlier in this judgment, it will be clear that, in my view, this is an objectively serious case of contempt of court. I accept that some level of subjective fear may be expected in the Contemnor. However, there is no evidence that he had taken steps by way of application for protective custody or otherwise to assist him for the purpose of discharging his duty as a witness to be called in a serious criminal trial. He refused to be sworn or affirmed and understood the consequences at the time.

91 It is clear that a range of other witnesses were apprehensive and fearful about giving evidence, but they fulfilled their duty as citizens with the assistance of a range of measures designed to provide them with a level of protection.

92 The Contemnor was not prepared to do so and must face the consequences.

93 I take into account the Contemnor’s plea of guilty and the subjective matters advanced on his behalf on sentence. I have regard to considerations of personal and general deterrence and denunciation of the contempt which are critical factors on sentence in this case.

94 I am satisfied that no sentence other than a sentence of full-time imprisonment is appropriate in the circumstances of the case, and that a sentence which adds significantly to the Contemnor’s present term is appropriate.

Order

95 Bilal Razzak, in respect of the charge of contempt of court, you are convicted. You are sentenced to a fixed term of imprisonment for a period of 15 months. That sentence will commence on 20 August 2007 and will expire on 19 November 2008. I decline to set a non-parole period, pursuant to s.45 Crimes (Sentencing Procedure) Act 1999, because of the nature of the offence and because I have concluded that no lesser punishment than an actual additional sentence of imprisonment for 15 months would be adequate in the circumstances of the case.

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