R v Sherwani
[2017] VSC 147
•31 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 03918
| THE QUEEN (ON THE APPLICATION OF THE REGISTRAR OF THE COUNTY COURT OF VICTORIA) | Applicant |
| v | |
| HAWRE SHERWANI | Respondent |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2017 |
DATE OF JUDGMENT: | 31 March 2017 |
CASE MAY BE CITED AS: | R v Sherwani |
MEDIUM NEUTRAL CITATION: | [2017] VSC 147 |
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CONTEMPT – Contempt of Court – Sentence – Respondent refused to answer questions by falsely asserting an inability to remember when subpoenaed to attend on a voir dire in the trial of co-accused – Contempt admitted – Sentence of four months’ imprisonment – Sentencing Act1991 ss 5, 6AAA, 11, 14, 15, 16, 17, 18 – Supreme Court (General Civil Procedure) Rules 2015 O 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Dinelli | Victorian Government Solicitor |
| For the Respondent | Mr S Johns | Theo Magazis & Associates |
HIS HONOUR:
Introduction
The current contempt proceedings were brought against the respondent, Mr Sherwani, in this Court on 23 September 2016, on the application of the Registrar of the County Court of Victoria. In its originating motion, the applicant claims that the respondent refused to answer questions asked of him in the County Court on 18 July 2016 by falsely asserting an inability to remember.[1] By written submissions dated 5 December 2016, the respondent admitted guilt to the charge of contempt.[2] As such, when the matter came before me on 8 February 2017, the only matter left for determination was the question of what sentence would be appropriate in the circumstances.
[1]Originating Motion Between parties dated 23 September 2016, 2.
[2]‘Respondent’s Submission’ dated 5 December 2016.
Before imposing a sentence, I shall first turn to the background of the matter, followed by the relevant sentencing considerations for the offence of contempt.
Background
On 11 July 2016, the respondent pleaded guilty to one charge of recklessly causing serious injury in relation to an attack on a man on 21 July 2014. On 14 July 2016, he was sentenced in the County Court of Victoria to six years’ imprisonment with a non-parole period of four years for the attack. The attack is alleged to have involved a co-offender, Mr Meyer.
In answer to a subpoena dated 6 July 2016, the respondent appeared as a witness on a voir dire in the trial of Mr Meyer before her Honour, Judge Hampel, in the County Court of Victoria on 18 July 2016. Once sworn to provide his evidence, the respondent proceeded to respond to each question posed by the prosecution that he could not recall anything relating to the attack. Upon being shown photographs under examination, the respondent asserted that he could not see properly, and continued to assert that he could not recall anything. Her Honour warned the respondent that his conduct constituted contempt of court and provided him an opportunity to purge his contempt by properly engaging with the questions asked of him, and making a genuine attempt to give evidence.[3] However, upon the examination resuming, the respondent continued to provide answers of ‘I can’t recall anything’, ‘I can’t remember anything’ and like statements. In total, the respondent provided such responses approximately 83 times while under examination.[4]
[3]Exhibit A1: Affidavit of Bradley David Medcroft sworn 22 September 2016, “APP-4”, 35.
[4]Ibid.
On 19 July 2016, on the second day of the voir dire hearing in the trial of Mr Meyer, her Honour Judge Hampel directed the Registrar of the County Court to apply for the respondent to be punished for contempt.[5] Her Honour noted that the respondent could still avail himself of the opportunity to purge his contempt:
As the prosecution, as a result of the answers he gave yesterday, no longer proposes to call Mr Sherwani to give evidence, the purging of the contempt cannot be by a promise to give truthful evidence if required, but if he considers it in his interest to offer an apology or explanation to any court that is dealing with him on the contempt charge that I have directed be brought against him, he of course will have that opportunity to do so.[6]
[5]Ibid “APP-5”, 71.
[6]Ibid 72.
On 23 September 2016, the current contempt proceedings were commenced in this Court by originating motion filed by the Registrar of the County Court. In the ‘Particulars of the Contempt’ contained within the originating motion, the applicant alleged that ‘[o]nce sworn to give evidence, the Respondent refused to answer the questions by falsely asserting an inability to remember’.[7] In written submissions dated 21 November 2016, the applicant submitted that ‘[t]he respondent’s answers of “I do not recall anything”, “Can’t remember anything” or like statements on approximately 83 occasions plainly constitute contempt’.[8]
[7]Originating Motion Between parties dated 23 September 2016, 2.
[8]‘Applicant’s Submissions’ dated 21 November 2016, [22].
By written submissions dated 5 December 2016, the respondent admitted guilt to the charge of contempt and offered a formal apology to the Court:
Admission of Guilt
1.1The Respondent accepts the ‘Particulars of Contempt’ set out in the Originating Motion dated 23 September 2016.
1.2The Respondent admits paragraph 22 of the Applicant’s submissions and raises no defence to the charge.
Apology
1.3The Respondent takes this opportunity to formally apologise in this Court for his contempt.[9]
[9]‘Respondent’s Submission’ dated 5 December 2016.
As such, when the matter came before me on 8 February 2017, the only matter left for determination was the question of what sentence would be appropriate in the circumstances of the respondent’s admitted contempt.
Punishment for contempt
The inherent jurisdiction of the Supreme Court includes the power to punish an act of contempt committed in court,[10] including contempt of an inferior court such as the County Court.[11] This inherent power is regulated by O 75 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Rule 75.11 of the Rules prescribes the punishment for contempt as follows:
[10]See Grocon v Construction, Forestry, Mining and Energy Union [No 2] (2014) 241 IR 288, [73] (‘Grocon’); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 364-5; Seymour v Migration Agents Registration Authority (2006) 215 FCR 168, [69].
[11]See John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 360; Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280, [11]. See also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).
75.11 Punishment for contempt
(1)Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both.
(2)Where the respondent is a corporation, the Court may punish for contempt by sequestration or fine or both.
(3)When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.
(4)The Court may make an order for punishment on terms, including a suspension of punishment.
There is no maximum penalty for the common law offence of contempt of court.[12]
[12]Allen v The Queen (2013) 36 VR 565, [54]; Smith v The Queen (1991) 25 NSWLR 1, 15; A-G (NSW) v Whiley (1993) 31 NSWLR 314, 320.
Mr Dinelli, who appeared on behalf of the applicant, submitted that ‘given the rationale for the offence and the particular offence here, there should be an immediate custodial sentence imposed’.[13] Mr Johns, who appeared on behalf of the respondent, conceded that a term of imprisonment would be ‘inescapable’ or ‘inevitable’ in the circumstances.[14] I accept that the imposition of a term of imprisonment is appropriate in these circumstances.
[13]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T5 LL21–24.
[14]Ibid T41 LL11–12, T42 LL18–19. See also ‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [2].
Relevant sentencing considerations
In Wood v Staunton(No 5),[15] Dunford J identified 10 considerations that are often relevant to the assessment of an appropriate penalty for contempt of court such as a failure to give evidence. Those 10 considerations are as follows:
[15](1996) 86 A Crim R 183.
1. the seriousness of the contempt proved;
2.whether the contemnor was aware of the consequences to himself of what he did;
3.the actual consequences of the contempt on the relevant trial or inquiry;
4. whether the contempt was committed in the context of serious crime;
5. the reason for the contempt;
6.whether the contemnor has received any benefit by indicating an intention to give evidence;
7. whether there has been any apology or public expression of contrition;
8. the character and antecedents of the contemnor;
9. general and personal deterrence; and
10. denunciation of the contempt.[16]
[16]Ibid 185.
It is convenient to deal with each of the above considerations that are relevant to the respondent’s case, in turn.
The seriousness of the contempt proved
The applicant submitted that the contempt committed by the respondent should be regarded as serious.[17] It submitted that the respondent’s contempt:
involved a deliberate refusal to give relevant and probative evidence in a criminal trial of serious offences, namely intentionally causing serious injury and recklessly causing serious injury.
There is no basis to find otherwise that the respondent’s asserted inability to remember on approximately 83 occasions was a deliberate and considered decision.[18]
[17]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [21].
[18]Ibid [21]–[22].
Mr Johns submitted that an assessment of the seriousness of the respondent’s contempt should be qualitative and not quantitative, and that the focus of the inquiry should be on the particular questions which were not being answered, rather than how many times the respondent failed to answer these questions.[19] On this basis, Mr Johns submitted that the respondent’s contempt should be characterised as ‘mid-range’.[20] He submitted that although the contempt was wilful and deliberate, it was not contumacious.[21]
[19]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T46 LL3–11.
[20]Ibid T46 LL26–28.
[21]Ibid T45 LL25–31.
Of the various classes of contempt that have been identified, contumacious contempt is the most serious.[22] Contumacious contempt has been variously defined as deliberate conduct ‘aimed at the integrity of the courts and designed to degrade the administration of justice’,[23] ‘deliberately defiant’ behaviour,[24] and ‘a specific intention to disobey a court order or undertaking to the court, which evidences a conscious defiance of the court’s authority’.[25] Contumacy will not be found unless the Court is satisfied beyond reasonable doubt that the finding is appropriate.[26] I am satisfied beyond reasonable doubt that the act of contempt in this case was contumacious, and is therefore to be characterised as serious. It is plain from the conduct of the respondent that his continued response of ‘I can’t recall anything’ and like statements approximately 83 times was deliberately designed to frustrate and degrade the administration of justice. The respondent’s contempt was both qualitatively and quantitatively serious, evincing a conscious defiance of the court’s authority.
[22]See Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 315 (Kirby P).
[23]Ibid.
[24]Grocon (2014) 241 IR 288, [102].
[25]Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91, [72].
[26]Grocon (2014) 241 IR 288, [99]; Witham v Holloway (1995) 183 CLR 525, 543 (McHugh J).
Mr Johns submitted that while the contempt itself was ‘indefensible’, it ‘followed its own particular course in its own particular context’.[27] While the context of the respondent’s offence of contempt and its possible mitigatory effect will be considered below, this does not lessen the seriousness of the act of contempt itself.
[27]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T46 LL20–22.
Whether the contemnor was aware of the consequences to himself
The applicant submitted that the respondent was aware of the consequences to himself. The applicant submitted that although the respondent was not represented at the time of giving his evidence on 18 July 2016, he had legal representation at his guilty plea on 11 July 2016, and was represented on 19 July 2016 when Judge Hampel directed the Registrar of the County Court to commence these proceedings.[28] The applicant further submitted that the respondent persisted in his refusal to answer the questions asked under examination despite having the benefit of ‘an explanation from the presiding judge as to the consequences of his failure to answer the questions asked of him’.[29] The respondent did not make any submissions on this point.
[28]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [23].
[29]Ibid [24].
I have concluded that the respondent was made aware of the consequences of his contempt. After providing answers of ‘I can’t recall anything’ and like responses a number of times, her Honour Judge Hampel provided the respondent a clear warning that his behaviour amounted to contempt:
HER HONOUR: Mr Sherwani, I’ve taken the view that the answers that you have given to date in response to questions asked by Ms Holmes as to the fact of your plea, the plea proceedings in this court and the sentencing last week, where you said you ‘can’t recall anything’, and where you said since you got your sentence you got depression and ‘couldn’t recall anything’, make it – satisfy me that you may reasonably be supposed to have had knowledge about your plea and your sentence, and it appears to me that you are not making a genuine attempt to give evidence. That means a failure to give evidence, or make a genuine attempt to give evidence, is a contempt of court, and you could be dealt with and punished for that. Do you understand that?
RESPONDENT: Yes.
HER HONOUR: Having told you that I consider that you are not making a genuine attempt to give evidence, I’m here and now offering you the opportunity to reconsider the position that you have taken, and to consider the way you will answer the next questions that are put to you by the prosecutor. If you maintain the position that you’ve taken then it may well be that I would take the view that you are, again, not making a genuine attempt to give evidence about matters you could reasonably be expected to know about, and that would therefore increase the contempt, rather than purge it or remove it. Do you understand that?
RESPONDENT: Yes.[30]
After this warning was provided, the respondent continued to provide answers to the effect that he could not recall anything relating to the attack.
[30]Exhibit A1: Affidavit of Bradley David Medcroft sworn 22 September 2016, “APP-4”, 35.
I am satisfied that her Honour Judge Hampel provided a clear warning to the respondent as to the consequences that he risked if he maintained his position, and continued to fail to make a genuine attempt to give evidence. Her Honour clearly stated that the respondent’s conduct amounted to a contempt of court, and that the respondent ‘could be dealt with and punished for that’. Her Honour also clearly informed the respondent that if he maintained his position, this would ‘increase the contempt, rather than purge it or remove it’. On both occasions when her Honour asked if the respondent understood the consequences of his conduct, he responded ‘yes’. I am therefore satisfied that the respondent was aware of the consequences to himself of his conduct.
The actual consequences of the contempt on the relevant trial or inquiry
The applicant submitted that it is not possible to know what exact impact the respondent’s contempt has had, or will have, on the trial of Mr Meyer given that the proceeding remains on-going.[31] Mr Dinelli submitted that notwithstanding the fact that the prosecution of Mr Meyer could continue in the absence of the respondent’s evidence, the court was nevertheless deprived of evidence concerning the identity of the respondent’s co-accused, and his connection or otherwise with the Comancheros motorcycle gang.[32] The respondent submitted that Mr Meyer’s matter has been able to proceed to trial notwithstanding the respondent’s contempt, thereby demonstrating that the prosecution’s case was ‘not dependent upon Mr Sherwani being a witness’.[33] The respondent submitted that:
Whilst it is conceded that Mr Sherwani would be able to provide evidence that strengthens the prosecution case, it could not be said that his refusal to answer questions weakened their case.[34]
[31]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [25].
[32]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T16 L3 – T17 L28.
[33]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [15].
[34]Ibid [16].
It is not necessary for the Court to determine the exact effect that a contemnor’s refusal to provide evidence may have on a trial.[35] In Principal Registrar of Supreme Court (NSW) v Tran,[36] Buddin J found that in the circumstances of the case it was not possible to reach a conclusion on the impact of the witness’ refusal to give evidence on the outcome of the proceedings. Buddin J stated:
What might be said however with some confidence is that the offender’s conduct had a tendency to interfere with the administration of justice. That was because the court was deprived of the opportunity of hearing evidence which bore upon the issues in the trial and of having them tested by the Crown.[37]
[35]Allen v The Queen (2013) 36 VR 565, [46] (Priest JA).
[36](2006) 166 A Crim R 393 (‘Tran’).
[37]Ibid [35].
Buddin J’s observations in Tran are applicable to the current proceeding. While the actual consequences of the respondent’s contempt on Mr Meyer’s trial cannot be known with any certainty, I accept the applicant’s submission that the respondent was nevertheless in a unique position to provide evidence concerning Mr Meyer’s identity.[38] As this is an issue in the trial, it can be said that the respondent’s conduct in refusing to give evidence had a tendency to interfere with the administration of justice in Mr Meyer’s trial.
[38]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T17 LL25–28.
Whether the contempt was committed in the context of serious crime
At the time of his refusal to give evidence before her Honour, Judge Hampel on 18 July 2016, the respondent was appearing as a witness on a voir dire in the trial of Mr Meyer. The subject matter of the questions put to the respondent concerned the offences of intentionally causing serious injury and recklessly causing serious injury. It is not in dispute that these are serious crimes.[39] As such, I am satisfied that the respondent’s contempt was committed in the context of serious crime.
[39]See ‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [30]; ‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [14](i).
The reason for the contempt
By written submissions, the respondent has provided the following reasons for his contempt:
14.The offence of contempt was committed during a very stressful period in [Mr Sherwani’s] life:
i)He had pleaded guilty to a serious criminal offence,
ii)He had not made a statement or provided information to authorities concerning the offence, and as such had no expectation that he would be subpoenaed as a witness by the prosecution prior to entering his plea,
iii)He received a stern sentence on 14 July and was brought to court 4 days later, on 18 July 2016, to be examined,
iv)Based upon the matters raised in Exhibit “APP-2” Statement of Detective Sergeant Paul Topham it is likely the Respondent would have suffered reprisals if he had answered questions faithfully.[40]
Mr Johns submitted that on 18 July 2016, the respondent was ‘still in a state of some obvious disappointment, some shock, he instructs that he hadn't been sleeping and was quite crushed I suppose is the word by the heavy sentence’.[41] Mr Johns submitted that this, in combination with the respondent’s fear of retribution in the event he made a genuine attempt to give evidence, led to his offending.[42]
[40]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [14] (citations omitted).
[41]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T38 LL7–10.
[42]Ibid T40 LL7–16.
The fear of retribution to which Mr Johns makes reference concerns the respondent’s membership of the Comancheros motorcycle gang. The statement of Detective Sergeant Paul Topham referred to above indicates that the respondent is a ‘patched’ member of the Comancheros motorcycle gang.[43] In that statement, Detective Sergeant Topham states that:
11.The Comanchero OMCG have strict rules in relation to non co-operation with law enforcement agencies and new members are provided with written rules which include, ‘answer no questions concerning the club’ and ‘if they take you to the police station always make a NO COMMENT STATEMENT.’[44]
Mr Johns submitted that this material, in conjunction with the reasons for the respondent’s sentence delivered by Judge Hampel on 14 July 2016 detailing the victim’s past association with the Comancheros motorcycle gang,[45] were matters that I could legitimately take into account in finding that the respondent had a genuinely held fear for his own safety.[46] Mr Dinelli conceded that paragraph 11 of the statement of Detective Sergeant Topham may provide an evidentiary foundation for the Court to infer that the respondent did have an apprehension of retribution in the event that he gave genuine evidence before Judge Hampel.[47] Mr Dinelli accepted that this evidence ‘may be a relevant consideration in the context of sentencing’.[48] However, Mr Dinelli submitted that the weight to be attributed to such an inference, and its mitigatory effect, had to be considered in light of the authorities on this point.[49]
[43]Exhibit A1: Affidavit of Bradley David Medcroft sworn 22 September 2016, “APP-2”, [29].
[44]Ibid [11].
[45]Ibid “APP-1”, [33].
[46]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T47 LL19–29.
[47]Ibid T8 L21 – T9 L8.
[48]Ibid T8 LL15–16.
[49]Ibid T21 LL11–23.
I accept that a contemnor’s subjective fear of retribution may operate as a mitigating factor. In R v Razzak,[50] Johnson J stated that:
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].
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.[51]
[50](2006) 166 A Crim R 132.
[51]Ibid [63]–[64].
Courts have however been careful to balance the weight to be afforded to the subjective fear of a contemnor against the powerful consideration of the proper administration of justice. In R v Guariglia,[52] Byrne J engaged in this balancing exercise while considering the subjective fear of the contemnor:
It is said that these refusals were motivated by fear and that his fear was well-founded. The two men who were charged with the murder were described before me as "violent and dangerous men" and men who were known or at least believed by the respondent to be capable of carrying out threats against his health or even his life while in prison. That is a factor which I have regard to. But it often happens in the courts, particularly in the criminal courts, that the plain duty of citizens is to give evidence and co-operate with the justice system, notwithstanding inconvenience and even danger to themselves.
So I weigh the fear of the respondent, which I accept existed as a motive, on the one hand, against the powerful incentive which the law must impose upon every citizen to give evidence when called upon to do so, on the other.
…
My concern above all is to ensure that citizens who are called to give evidence must co-operate with the court. The court's function, particularly in the administration of criminal law, is an important one in society, and the criminal law and the justice system cannot be held to ransom by the fears of witnesses, however well-founded be those fears.[53]
[52][2000] VSC 45.
[53]Ibid [11]–[12], [17].
In R v Garde-Wilson,[54] Harper J, accepting that the contemnor held a genuine fear of harm, stated that:
Many people in your position, however, will have fears similar to yours. Each case will of course be different, not least because the depth of the fear will differ according to the temperament of the persons subject to it. The proper administration of the law would be impossible if the more fearful could for that reason alone avoid the obligation of giving evidence in court… The rule of law is an essential element in any civilised, properly functioning community. The quality of the courage required to defend it must in circumstances such as those you faced on 7 October be judged against the importance of fair criminal proceedings to the maintenance of the rule of law; and, accordingly, against the importance of giving truthful evidence in such proceedings…[55]
[54][2005] VSC 452.
[55]Ibid [8].
In R v DF [No 2],[56] Dixon J accepted that the contemnor held a subjective fear for the safety of his family, and that this was a ‘concurrent reason’ operating at the time of his contempt.[57] However, Dixon J found that this reason did not attract ‘any mitigating weight in fixing a proper sentence’.[58]
[56][2014] VSC 213.
[57]Ibid [20].
[58]Ibid.
Based on the statement of Detective Sergeant Topham, particularly paragraph 11, I accept that the respondent did have an apprehension of retribution in the event he made a genuine attempt to give evidence before Judge Hampel. I accept that this subjective apprehension was operating at the time of his contempt. While this, and the other reasons provided by Mr Johns may explain the respondent’s conduct, it does not excuse the act of contempt.[59] In fixing an appropriate sentence, I have weighed this apprehension against the proper administration of the criminal law, and ‘the powerful incentive which the law must impose upon every citizen to give evidence when called upon to do so’. As a mitigating factor, the respondent’s fear of retribution is of limited weight.
[59]See Re Smith [No 2] [2015] NSWSC 1141 [73].
Whether there has been any apology or public expression of contrition
By written submissions dated 5 December 2016, the respondent offered a formal apology to the Court:
Apology
1.3The Respondent takes this opportunity to formally apologise in this Court for his contempt.[60]
[60]‘Respondent’s Submission’ dated 5 December 2016.
The applicant submitted that on 18 July 2016 the respondent continued to provide answers of ‘I do not recall anything’, and like responses on approximately 72 occasions after Judge Hampel provided him with a clear warning that his conduct amounted to contempt.[61] The applicant submitted that notwithstanding the apology offered by the respondent on 5 December 2016, ‘[r]eal contrition would have been best demonstrated by giving evidence as he was required to do’.[62]
[61]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [38].
[62]Ibid quoting Re Smith [No 2] [2015] NSWSC 1141, [76] (Wilson J).
I accept that the apology offered by the respondent shows some level of contrition for his contempt. This apology does however fall short of the level of contrition that would have been demonstrated by the respondent had he purged his contempt by giving truthful evidence when given the opportunity to do so by her Honour Judge Hampel.[63]
[63]See Exhibit A1: Affidavit of Bradley David Medcroft sworn 22 September 2016, “APP-4”, 35.
The character and antecedents of the contemnor
The respondent is 25 years of age. He was born in Northern Iraq, and arrived in Australia at the age of nine after fleeing Iraq with his family as refugees.[64] His journey to Australia involved periods in a refugee camp and immigration detention.[65] The respondent submitted that he was exposed to frequent domestic violence as a child, and received limited education prior to his arrival in Australia.[66] Despite this, the respondent completed his year 12 studies, and has since undertaken courses in security and fitness training, as well as a further English language course.[67] Notwithstanding his training, the respondent has had difficulty obtaining employment due to his criminal record.[68]
[64]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [5].
[65]Ibid [6].
[66]Ibid [8]–[9].
[67]Ibid [10]–[11].
[68]Ibid [12].
In addition to the conviction of recklessly causing serious injury for which he received a sentence of six years’ imprisonment with a non-parole period of four years, the respondent has several other convictions involving unlawful assault and recklessly causing injury.[69] For these offences, the respondent has received fines totalling $3200. The respondent also received a conviction and fine of $1000 in 2014 for possession of anabolic steroids, and in 2008 was admitted to probation without convictions being recorded for five charges of robbery, failure to answer bail and unlawful assembly.[70]
[69]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [40].
[70]Ibid.
I have had regard to the character and antecedents of the respondent in fixing an appropriate sentence.
General and personal deterrence
In Re Smith [No 2],[71] Wilson J stated:
Both general and specific deterrence are important considerations.
General deterrence is ordinarily regarded as the more significant of the two in cases of contempt, since it is critical that others are deterred from similar acts of defiance of the court’s processes and of its authority: Razzak at [78]. Those who may be required to participate in proceedings before the courts must understand and accept the obligation that falls on all members of society to obey the direction of a court, and particularly a direction to take an oath or affirmation so as to give evidence.
The criminal justice system in particular is required with some frequency to receive evidence from criminals, and criminals already serving sentences of imprisonment. It is the nature of crime that often the only witnesses to its commission are also participants. Since co-accused are compellable witnesses when separately dealt with (s.17(3) Evidence Act 1995), and can thus be required to give evidence, there must be a suitable means of warning all those who may be in the same position as that of the contemnor that there are consequences for defying the courts that carry a real sting.[72]
[71][2015] NSWSC 1141.
[72]Ibid [89]–[91].
The applicant submitted that general deterrence should be considered the predominant sentencing factor in this case.[73] It submitted that the respondent’s act of contempt has inhibited the prosecution of a serious crime, and as such, ‘[t]here must be significant consequences for such conduct’.[74] Mr Johns conceded that general deterrence, and the administration of justice generally, were paramount considerations.[75] The respondent further submitted:
However, it is unusual, although not unheard of, for the prosecution to subpoena a co-accused who has not provided any information about the offence, after they have pleaded guilty, with a view to compelling answers that implicate another accused.
If such a practice becomes widespread there may be other unforeseen consequences that impair the proper administration of justice.[76]
Mr Johns submitted that consideration must be given to these other potential unforeseen consequences for the administration of justice,[77] such as the potential disincentive for persons such as the respondent to plead guilty.[78]
[73]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [41].
[74]Ibid.
[75]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T40 L26 – T41 L2.
[76]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [18]–[19].
[77]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T41 LL3–10.
[78]Ibid T43 LL13–18.
I accept that general deterrence is a paramount consideration in this case. In considering the appropriate punishment in this matter, the potential ‘unforeseen consequences’ for the administration of justice identified by Mr Johns do not outweigh the importance of general deterrence. A refusal to give evidence diminishes the effectiveness of law enforcement. As noted by Wilson J in Re Smith [No 2],[79] often the only witnesses to the commission of an offence are also participants. Persons called to give evidence in criminal proceedings, including those called to give evidence in the trial of a co-accused, must have a clear understanding that significant consequences will flow from a refusal to give evidence. There is therefore a strong public interest in ensuring that this form of disobedience of the law ‘will be, and will be seen to be, punished’.[80]
[79][2015] NSWSC 1141.
[80]R v Razzak (2006) 166 A Crim R 132, [78] (Johnson J).
Denunciation of the contempt
The applicant submitted that the Court should impose a ‘meaningful sentence to denounce the refusal to give evidence in respect of a criminal trial of such a serious offence’.[81] The respondent concedes that the need for denunciation is a relevant sentencing consideration ‘in order to uphold the public interest in maintaining the proper administration of justice’.[82] I accept that the punishment for the respondent’s act of contempt must be such as to clearly denounce offences of this nature which seek to interfere with the authority of the court and the proper administration of justice.[83]
[81]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [44].
[82]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [17].
[83]See Re Smith [No 2] [2015] NSWSC 1141, [93] (Wilson J).
Sentencing Act 1991
At the hearing on 8 February 2017, both parties were provided with the opportunity to make submissions on the application of the Sentencing Act 1991 (‘the Act’) to the current proceeding. The relevant provisions identified by both parties will be dealt with in turn.
Section 5 - Sentencing guidelines
Mr Johns submitted that regard should be had to s 5 of the Act, particularly ss 5(3) and 5(4) reflecting the common law principle of parsimony.[84] Those sections provide:
(3) A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
(4) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
I have applied these principles when determining the appropriate sentence.
[84]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T48 LL2–13. See also R v DF [No 2] [2014] VSC 213, [29] (Dixon J); R v QF [2014] VSC 81, [36] (Croucher J).
Mr Dinelli submitted that pursuant to s 5(2)(b) of the Act, the Court, in sentencing an offender, must have regard to current sentencing practices.[85] Mr Johns agreed with this submission.[86] Mr Dinelli submitted that this was consistent with the approach taken in other cases concerning contempt for refusal to give evidence, particularly the approach taken by Dixon J in R v DF [No 2].[87] In R v DF [No 2],[88] Dixon J stated:
I have paid regard to current sentencing practices in so far as a practice can be discerned in relation to this offence, while bearing in mind that it is difficult to usefully compare other cases. That said I have been assisted by a survey of the various authorities and reasons for sentence provided to me. I have drawn assistance from those cases dealing with the particular offence under consideration, rather than from cases in respect of like offences, which are mostly drawn from other jurisdictions. Those cases in respect of like offences in other jurisdictions do not shed any light on current Victorian sentencing practices.[89]
By written submissions dated 19 January 2017, the applicant provided a table of relevant sentencing decisions from a number of Australian jurisdictions for contempt for refusal to give evidence.[90] I have had regard to the current sentencing practices in the various cases to which I have been referred, and like the approach of Dixon J above, I have drawn particular assistance from those cases dealing with the particular offence of contempt under consideration.
[85]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T30 L1 – T31 L9.
[86]Ibid T50 LL6–7.
[87]Ibid T30 LL1–24.
[88][2014] VSC 213.
[89]Ibid [30] (citations omitted).
[90]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, ‘Annexure A: Table of Relevant Sentencing Decisions’.
Section 6AAA – Sentence discount for guilty plea
By written submissions dated 5 December 2016, the respondent admitted guilt to the charge of contempt.[91] Mr Johns submitted that it is appropriate to mitigate the respondent’s sentence in accordance with his guilty plea.[92] Mr Dinelli conceded that the respondent’s guilty plea is a relevant consideration to be taken into account in fixing a sentence.[93] I accept that a plea of guilty is a substantial mitigating factor,[94] and that the respondent is entitled to some credit for his guilty plea.
[91]‘Respondent’s Submission’ dated 5 December 2016.
[92]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [13].
[93]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T26 LL19–24.
[94]See R v QF [2014] VSC 81, [27] (Croucher J).
Mr Dinelli submitted that in the circumstances of this case, where the respondent has pleaded guilty to the offence of contempt, the Court should have regard to s 6AAA of the Act.[95] That section provides as follows:
[95]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T27 LL13–30.
6AAA Sentence discount for guilty plea
(1) If—
(a) in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and
(b) the sentence imposed on the offender is or includes—
(i) an order under Division 2 of Part 3; or
(ii) a fine exceeding 10 penalty units; or
(iii) an aggregate fine exceeding 20 penalty units—
the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.
In the contempt matter of Allen v The Queen,[96] Priest JA, with whom Maxwell P and Weinberg JA agreed, stated:
Counsel for the applicant drew our attention to the fact that the judge made no reference to s 6AAA of the Sentencing Act 1991, and he did not ‘state the sentence and the non-parole period, if any, that he would have imposed but for the plea of guilty’. It is clear that he should have done so…[97]
I am satisfied, in accordance with the plain wording of s 6AAA that if I impose a less severe sentence under div 2 of pt 3 of the Act, consistent with the respondent’s guilty plea, I am required to state the sentence and the non-parole period, if any, that I would have imposed but for the plea of guilty.
[96](2013) 36 VR 565.
[97]Ibid [40].
Sections 14 -18 – Multiple sentences
Mr Johns submitted that consideration needs to be given to the operation of ss 14-18 of the Act.[98] Those sections deal with the situation posed by the current proceeding, where an offender stands to be sentenced by a court for a further term of imprisonment in addition to a sentence they are already serving. I will deal with those sections that are relevant to the current proceeding.
[98]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [2].
Section 14(1) of the Act provides:
14 Fixing of new non-parole period in respect of multiple sentences
(1) If—
(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and
(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period—
the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.
The respondent is currently serving six years’ imprisonment with a non-parole period of four years for recklessly causing serious injury. As the sentence of imprisonment which I propose to order Mr Sherwani to serve is less than one year, s 14 is not relevant to the sentencing of Mr Sherwani.[99]
[99]See Sentencing Act 1991 (Vic) s 11(2); R v Bortoli [2006] VSCA 62, [51].
Section 16 of the Act deals with the question of whether a term of imprisonment imposed is to be served concurrently or cumulatively with an uncompleted sentence. Section 16(1) provides:
16 Sentences—whether concurrent or cumulative
(1) Subject to subsection (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that person, whether before or at the same time as that term.
Section 16(1A), and the remainder of s 16 deals with exceptions to s 16(1) which are not relevant to the current proceeding.
Mr Johns submitted that s 16 operates as a presumption of concurrency.[100] He submitted that absent an express order that the sentence imposed was to be served cumulatively, the default position under s 16(1) is that the sentence will be served concurrently.[101] Mr Dinelli agreed with this submission,[102] however, he submitted that the only appropriate punishment in the circumstances of the respondent’s case was the imposition of an immediate term of imprisonment to be served cumulatively with the term of imprisonment the respondent is currently serving.[103] He submitted that the purpose of the imposition of imprisonment in the respondent’s case would be frustrated if the term was served concurrently with the sentence being currently served.[104] Mr Dinelli submitted that while the offence of recklessly causing serious injury gave the respondent the ‘opportunity’ to commit the offence of contempt, the offences themselves are ‘qualitatively different’ offences, such that there is no real ‘nexus’ between the factual circumstances of the two offences.[105] Mr Johns conceded that a portion of the term of imprisonment imposed must be served cumulatively.[106] However, he submitted that a sentence of substantial concurrency can meet the relevant sentencing considerations in the respondent’s case.[107] Mr Johns submitted that there was a nexus between the respondent’s offences of recklessly causing serious injury and contempt to the extent that the respondent ‘wouldn’t be in the position he’s in but for admitting serious criminal behaviour that was engaged in with a co-accused’, which led to his being subpoenaed to appear as a witness on a voir dire in the trial of Mr Meyer where the contempt occurred.[108]
[100]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T35 LL6–10.
[101]Ibid T35 LL19–25.
[102]Ibid T24 LL15–27.
[103]‘Applicant’s Submissions as to Sentence’ dated 19 January 2017, [45].
[104]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T25 LL11–13.
[105]Ibid T25 L18 – T26 L16.
[106]Ibid T44 LL6–9.
[107]Ibid T44 LL11–16; ‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [22].
[108]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T42 LL7–16.
There is authority which supports the proposition that for the offence of contempt, cumulative sentences are appropriate in order to adequately denounce such conduct, and to act as a sufficient general deterrent. In Re Smith [No 2],[109] Wilson J stated:
[109][2015] NSWSC 1141.
… the sentence imposed upon the contemnor must be capable of conveying the community’s unhesitating rejection of offences of this nature. The rule of law relies upon the maintenance of the authority of the court; any act which seeks to subvert that authority or interfere with the administration of justice must be strongly denounced.
The Sentence
Having considered all of these features, objective and subjective, I have concluded that only a custodial sentence of some significance can serve the manifold purposes of sentence set out at s.3A of the Crimes (SentencingProcedure) Act 1999. In particular, only a custodial sentence which extends the contemnor’s current custody is capable of punishing him for his crimes, deterring both him and others from similar conduct, and conveying the strongest denunciation of these serious offences. Whilst Ms. Avenell submitted that the Court should give consideration to imposing wholly concurrent sentences, I cannot accept that such an approach is appropriate.
Considering the principles set out in R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41, the sentences which the contemnor is currently serving cannot comprehend the criminality of the present offences. Neither can the sentence imposed for one count of contempt wholly reflect the criminality of the other count of contempt: a degree of accumulation is required. Only the principle of totality can require some concurrency between the present sentences, and those imposed today, and between the sentences imposed for each offence of contempt.[110]
[110]Ibid [93]–[95].
In Zappia v Registrar of the Supreme Court,[111] Duggan J, with whom Doyle CJ and Anderson J agreed, found that the trial judge was correct in ordering that the sentence for contempt was to be served cumulatively with the contemnor’s sentence for manslaughter. Duggan J stated:
I would reject the argument that the penalty is manifestly excessive. The appellant may have been placed in a difficult position in being required to give evidence against Kamleh when the appellant was under sentence for manslaughter. However, he had already given the evidence which the prosecution sought to elicit from him at his own trial.
The contempts of which the appellant was found guilty were serious in that they involved a refusal to obey directions of the court in a matter which had important implications for the administration of justice.[112]
[111](2004) 90 SASR 193 (‘Zappia’).
[112]Ibid [88]–[89].
In fixing an appropriate sentence, I have had regard to s 16(1) of the Act and the decisions in Re Smith [No 2] and Zappia outlined above.
I have also had regard to ss 15, 17 and 18 of the Act to the extent that they are relevant to the respondent’s circumstances. I will deal with those sections that are relevant to the current proceeding below.
Other sentencing factors
Prospects of Rehabilitation
Mr Johns submitted that the respondent’s prospects of rehabilitation is also a relevant sentencing consideration.[113] Mr Johns submitted that the respondent’s prospects of rehabilitation are ‘fair given his age, limited history, and level of education’.[114] He submitted that the respondent has been working while in prison making lanyards for guards, has started a safer living course, and will have services and some level of supervision available to him once paroled.[115]
[113]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T48 LL13–14.
[114]‘Outline of Submissions – Sentence – Respondent’ dated 6 February 2017, [20].
[115]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T48 LL13
I accept that the respondent’s prospects of rehabilitation is a relevant factor to be given consideration.[116] Taking into account the respondent’s age, personal circumstances, his offending history, and the work and course he has undertaken since being imprisoned, I have concluded that the respondent’s prospects of rehabilitation are guarded.
[116]See, eg, R v DF [2014] VSC 213 [22]; R v QF [2014] VSC 81 [29].
Principle of Totality
Both parties submitted that regard must be had to the principle of totality in passing sentence.[117] This was specifically raised by Mr Dinelli in the context of the respondent having made an application for leave to appeal against the sentence he is currently serving for recklessly causing serious injury.[118] The respondent sought leave to appeal against his sentence on the ground that it was manifestly excessive. The Court of Appeal reserved its judgment in relation to the application on 7 February 2017. Mr Dinelli submitted that the Court may wish to await the decision of the Court of Appeal on the respondent’s application, as any change in his current sentence may impact on the sentence fixed in this proceeding in consideration of the principle of totality.[119] Mr Johns joined in this submission,[120] adding that the Court of Appeal’s decision could only be relevant in terms of any orders that may be made for cumulation.[121]
[117]Transcript of Proceedings, R v Sherwani (Supreme Court of Victoria, S CI 2016 03918, McDonald J, 8 February 2017) T32 LL13–23, T50 LL8–9.
[118]Ibid T31 LL23–27.
[119]Ibid T32 LL13–23.
[120]Ibid T34 LL 18–20.
[121]Ibid T34 LL 22–24.
At the conclusion of the hearing on 8 February 2017, I informed the parties that I proposed to give each side the opportunity to file written submissions regarding the impact of the Court of Appeal judgment, once delivered, on the current proceeding. On 23 February 2017, the Court of Appeal delivered its judgment, refusing the respondent’s application for leave to appeal.[122] On 23 February 2017, my chambers contacted the parties to enquire whether either side wished to make any submissions in the current proceeding arising out of the Court of Appeal’s decision. On 28 February 2017, the solicitor for the applicant responded on behalf of both parties that neither party proposed to supplement their written and oral submissions made on 8 February 2017 in response to the Court of Appeal judgment.[123]
[122]See Sherwani v The Queen [2017] VSCA 26.
[123]Email from Patricia Athanasiadis to the Associate to Justice McDonald, 28 February 2017.
As will be apparent below, I have had regard to the principle of totality when fixing the respondent’s sentence in the current proceeding.
Sentence
Balancing all of the relevant sentencing considerations outlined above, with the relevant Sentencing Act provisions that I was referred to by counsel, I have concluded that the respondent should be sentenced to be imprisoned for four months for his contempt.
In accordance with s 6AAA of the Act, I declare that but for the respondent’s guilty plea, I would have imposed a sentence of five months’ imprisonment.
Applying s 14 of the Act, I must first, pursuant to s 14(1)(b), consider whether or not I propose to fix a non-parole period in accordance with s 11 of the Act for the respondent’s sentence for contempt.[124] Pursuant to ss 11(2) and (3) of the Act, a sentence of four months’ imprisonment is not one in respect of which a non-parole period can be imposed.[125] Accordingly, as s 14 is only enlivened where a court proposes to fix a non-parole period for a further term of imprisonment, I am not required, nor permitted, to fix a new single non-parole period in respect of the respondent’s two sentences. [126]
[124]See R v Bortoli [2006] VSCA 62, [49].
[125]Ibid [51].
[126]Ibid.
Pursuant to s 16 of the Act, I have determined that a wholly cumulative sentence is appropriate. I accept the submission that s 16(1) of the Act provides for a presumption of concurrency. However, I am satisfied that there is no real ‘nexus’ between the factual circumstances of the two offences. The respondent’s contempt is a discrete act of criminality from the offence of recklessly causing serious injury. A sentence of imprisonment to be served concurrently with the sentence the respondent is currently serving cannot appropriately comprehend and reflect the criminality of the respondent’s contempt. I also accept the submission that the purpose of the imposition of a term of imprisonment in the respondent’s case would be frustrated if it was served concurrently with the sentence being currently served.[127] Given the serious nature of the respondent’s act of contempt and the important implications this conduct has for the administration of justice, a cumulative sentence is necessary to meet the sentencing considerations of general deterrence and denunciation.
[127]See NSW Crime Commission v Field [2008] NSWSC 103, [30] (Adams J).
As the respondent’s sentence for contempt is to be served wholly cumulative upon his sentence for recklessly causing serious injury, s 15 of the Act will dictate the order in which these sentences will be served. Pursuant to s 15(1)(a) of the Act, the respondent must first serve any term of imprisonment in respect of which a non-parole period has not been fixed. In these circumstances therefore, the respondent will first serve four months for the offence of contempt. Service of the sentence the respondent is currently serving for recklessly causing serious injury will therefore be suspended in accordance with s 15(2) of the Act. The respondent will then recommence serving his sentence for recklessly causing serious injury in the order dictated by ss 15(1)(b) and (c) of the Act after he has served four months for the offence of contempt.
The sentence of imprisonment for contempt is to commence on the day it is imposed pursuant to s 17(1) of the Act. Section 18 of the Act does not apply to the respondent’s sentence for contempt, as the respondent’s period of time spent in custody prior to the imposition of the sentence for contempt is referable to the offence of recklessly causing serious injury, for which her Honour Judge Hampel made a declaration of pre-sentence detention.[128]
[128]See Exhibit A1: Affidavit of Bradley David Medcroft sworn 22 September 2016, “APP-1”, [62].
Finally, having regard to the principle of totality, I do not consider it necessary in the current proceeding to reduce the respondent’s sentence. As stated above, leave to appeal against the respondent’s sentence for recklessly causing serious injury was refused by the Court of Appeal on 23 February 2017, leaving in place his current sentence of six years’ imprisonment with a non-parole period of four years. In the absence of any submissions from the parties arising from the Court of Appeal decision, I am satisfied that only a sentence of imprisonment that extends the respondent’s current period in custody is capable of meeting the needs of general and personal deterrence, and denunciation for his offences. In these circumstances, a sentence of four months’ imprisonment for the offence of contempt to be served wholly cumulative upon the sentence the respondent is currently serving is necessary to appropriately reflect the total criminality of his offences.
I propose to make the following orders:
(a) Hawre Sherwani is sentenced to four months’ imprisonment for contempt of the County Court of Victoria constituted by his refusal on 18 July 2016 to answer questions by falsely asserting an inability to remember.
(b) The term of four months’ imprisonment is to be served cumulatively with the sentence Mr Sherwani is currently serving.
I shall provide the parties with an opportunity to make submissions on the question of costs.
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