R v Taber and Styman; Re Shannon Styman

[2005] NSWSC 1329

CITATION:	R v Taber & Styman; Re Shannon Styman [2005] NSWSC 1329
HEARING DATE(S):	9 December 2005
JUDGMENT DATE :	16 December 2005
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert J
DECISION:	The contemnor is sentenced to imprisonment for a period of twelve months commencing 25 March 2011 and to expire on 24 March 2012. I decline to set a non parole period.

LEGISLATION CITED:	Crimes (Sentencing Prcoedure) Act Evidence Act, s 65
CASES CITED:	Attorney General v Whiley (1993) 31 NSWLR 314 Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490 Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 Registrar of the Court of Appeal v Raad (unreported, Kirby P, 9 June 1992) Smith v The Queen (1991) 25 NSWLR 1 Wood v Staunton (No. 5) (1995) 86 A Crim R 183
PARTIES:	R v Shannon Styman
FILE NUMBER(S):	SC 2002/118; 2002/120
COUNSEL:	A. Robertson (Crown) P. Young SC (Contemnor)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Nikola Velcic & Associates (Contemnor)

LOWER COURT JURISDICTION:

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

STUDDERT J

Friday 16 December 2005

2002/118 REGINA v PETER DAVID TABER
2002/120 REGINA v IAN CRAIG STYMAN

Re: SHANNON STYMAN

SENTENCE

1 HIS HONOUR: When Shannon Styman (“the contemnor”) was before this Court on 9 December 2005, Mr Young of Senior Counsel appeared for him. Mr Young informed the Court that the contemnor pleaded guilty to contempt of court and I proceeded to hear submissions as to the appropriate penalty.

2 Before referring to the evidence introduced by Mr Young, it is necessary to trace the events that brought the contemnor before the Court on 9 December 2005.

3 The contemnor is presently serving sentences imposed by Barr J on 28 February 2003. Barr J sentenced the contemnor on that date to a term of imprisonment of eight years for aggravated robbery and to a term of imprisonment of fourteen years for manslaughter. The sentence for the aggravated robbery offence commenced on 26 March 2001 and the sentence for manslaughter commenced on 26 March 2002. His Honour did not fix a non parole period for the aggravated robbery offence, but fixed a non parole period of nine years for the manslaughter offence. Hence, the contemnor will be eligible for release on parole on 25 March 2011.

4 Those sentences were imposed after the contemnor had stood trial with his uncle, Ian Styman, and Peter Taber charged with the following offences:

(i) the murder of Joy Golbie Alchin;

(ii) breaking and entering the dwelling of Mrs Alchin and committing a serious indictable offence, namely robbery in circumstances of aggravation, namely being in the company of each other and depriving Mrs Alchin of her liberty (aggravated robbery);

(iii) having sexual intercourse with Mrs Alchin without her consent in circumstances of aggravation (namely, being in company with each other).

5 The contemnor pleaded guilty at the commencement of the trial to the count of aggravated robbery and conveyed a willingness to plead guilty to manslaughter. However, the Crown was not prepared to accept the plea concerning the death of Mrs Alchin.

6 The contemnor was found guilty of the manslaughter of Joy Golbie Alchin and was accordingly sentenced for the two offences as noted above.

7 The co-offenders, Peter Taber and Ian Styman, were found guilty of murder as well as of aggravated robbery. Barr J sentenced each of the co-offenders to imprisonment for life for murder and to twenty years imprisonment for aggravated robbery.

8 Each of the co-offenders appealed successfully to the Court of Criminal Appeal. Their convictions and sentences for the crime of murder were quashed and a new trial was ordered. Their sentences, but not their convictions, for the aggravated robbery were quashed.

9 The new trial of the co-offenders began on 19 September 2005. The case against the co-offenders was largely based on circumstantial evidence, but it was also intended to be based upon the direct evidence of the contemnor. So it was that on 29 September 2005 the contemnor was called as a witness. I refer to the transcript for what occurred:

“COURT OFFICER: Will you take an oath on the bible?
A. No. I’ll punch the bible up your arse.

WITNESS: I have got nothing to say your Honour, sorry, but I have got nothing to say at all.

HIS HONOUR: Be seated, thank you.

CROWN PROSECUTOR: Is your full name Shannon Troy Styman?
A. I don't know. Is it?

Q. Did you say yes?
A. I told you, I have already told the officer and I told the Crown. I have got nothing to do. I want to go.

Q. Is your full name Shannon Troy Styman?
A. Yes.

Q. And is your date of birth 6 April 1978?
A. Yeah.

Q. And do you remember in December 2000 returning to the Nowra area?
A. Kinda, yes.

Q. On 20 December you returned to the Nowra area?
A. Yeah.

Q. And where did you return to specifically in the Nowra area?
A. Excuse me your Honour. Is there any chance you can tell me to go back, because I have got nothing to say.

HIS HONOUR: Listen to the questions please.
A. I have got nothing to say.

HIS HONOUR: Listen to the questions.

CROWN PROSECUTOR: Where did you return to in the Nowra area on 20 December, sir?
A. (No answer).

HIS HONOUR: Answer the question please.
A. Nowra.

CROWN PROSECUTOR: Q. Did you live at a particular place in the Nowra area?
A. Yeah Sanctuary Point.

Q. Can you tell the jury please your address?
A. I can't remember.

Q. And were you who were you living with sir?
A. My de facto.

Q. What was her name?
A. Nadia Donn.

Q. And was there anybody in the else in the house apart from your yourself and Nadia Donn?
A. My daughter and my stepson.

Q. How old were they, sir?
A. One was three, and 18 months.

Q. Now you know the accused Ian Styman?
A. Sure do.

Q. And he is your uncle?
A. That's correct.

Q. How is it in the family that he is your uncle?
A. He is my father's brother.

Q. And did you see the accused Ian Styman after you returned to Nowra?
A. Yep.

Q. Now, on returning to the Nowra area were you in receipt of Social Security benefits?
A. Yes.

Q. And can you tell the jury please how much you were receiving?
A. Enough.

Q. And your de facto Nadia Donn, was she receiving any income?
A. Yes.

Q. And in what form was that, and how much?
A. Fucked if I know.

HIS HONOUR: I beg your pardon?
A. Buggered if I know.

HIS HONOUR: You will adopt a respectful attitude in this court.
A. Can you let me go?

HIS HONOUR: No. Go on, Mr Crown.
A. Well, I won't answer no more questions. If you want to hold me in contempt, go for your fucken' life.

CROWN PROSECUTOR: Q. Sir, did you have any method of transportation when you were in Sanctuary Point?
A. (No answer).

Q. Do you know the accused, Peter Taber?
A. (No answer).

HIS HONOUR: Q. Answer the question, would you?
A. I'm not going to, your Honour.

HIS HONOUR: You are not going to?

CROWN PROSECUTOR: I ask that he be directed to answer the question.

HIS HONOUR: I have already done so. Answer the question.
A. I'm not answering the question. I'm not answering nothing. I told the detective this when he come down and served the subpoena on me. He should have told you. You are just wasting the court's money, the government's money.

HIS HONOUR: Go on Mr Crown. I direct you to answer the question.

CROWN PROSECUTOR: Q. Do you know the accused, Peter Taber?
A. (No answer).

Q. Sir?
A. (No answer).

Q. Do you know the accused, Peter Taber?
A. (No answer).

HIS HONOUR: You realise that you are in contempt of this court?
A. Yep.

CROWN PROSECUTOR: Well your Honour, I can't take it any further than asking the same question again. And I will do that. Q. Do you know the accused Peter Taber, sir?
A. (No answer).

Q. Are you able to hear the questions that I'm asking you sir?
A. I can hear you quite perfectly.

Q. And why won't you answer the question that I'm asking you?
A. Because I have got nothing to say.

Q. Why haven't you got anything to say?
A. Because I haven't.

Q. Why?
A. None of your business.

Q. Sorry?
A. None of your business.

HIS HONOUR: I think you best step down and I will entertain an application when you are ready to make it Mr Crown.

HIS HONOUR: You realise contempt of court is a very serious matter, don't you?
A. Well, you are going to do it anyway, so such is life.”

10 The Crown arranged through the Bar Association on a pro bono basis for counsel to see the contemnor to advise him as to his situation following the behaviour outlined. After an opportunity had been given for the contemnor to consult with counsel, the contemnor was brought into Court on 30 September 2005. He was informed that in the perception of the Court it was considered that his behaviour on the previous day constituted contempt of court and he had read to him what occurred in the passage I have set out above (T 510 and following).

11 The contemnor was then informed that the Court considered his behaviour constituted a very serious contempt of court, and he was informed that he would be brought back to court on 5 October 2005 after having the opportunity of reflecting on his position and obtaining advice.

12 On 5 October 2005 the contemnor was brought before the Court and informed the Court: “I have nothing I wish to say” (T 568). He was then informed he would be brought back before the Court on 11 November 2005 at 2.00 pm. Through some administrative error, arrangements were not put in place for the contemnor to be transported to court on 11 November 2005 and, hence, 9 December 2005 was appointed as the date for the contemnor to be heard on the matter of the perceived contempt. This is the setting in which Mr Young came to appear for the contemnor and this is the background against which contempt was admitted and the guilty plea was entered.

13 Plainly, the contempt of court was very serious, as a consideration of what is recorded to have occurred on 29 September 2005 discloses. Mr Young did not seek to argue that this was other than a serious contempt.

14 What then is the explanation for it? The contemnor did not give evidence on 9 December 2005 but did place before the Court a letter (Exhibit 1). Mr Young readily and properly acknowledged that it was not perceived that the contemnor would be likely to express himself adequately in the witness box and it was thought better that he put what he wanted to say in writing.

15 In Exhibit 1 the contemnor stated that he is imprisoned in the maximum security section at Goulburn and in four months time he will have served five years of his sentence. When that point is reached, he will be eligible for reclassification and movement to a medium security prison. The contemnor asserted that he has been well-behaved in prison and has received only good reports from prison officers. He has tried to keep to himself and keep out of trouble. He indicated, when approached to give evidence in this matter, he did not want to give evidence. He said that he feared for his life and the lives of his family in the event that he did give evidence. As he put it:

“If I gave evidence, I’d be labelled as a Crown witness and inmates in here don’t take too kindly to snitches in prison and there’s no way I’ll put my life in danger for anybody, including the courts.”

16 Mr Young tendered a report from Mr Taylor, a forensic psychologist. That report, dated 7 December 2005, became Exhibit 2. I record part of what Mr Taylor wrote under the heading “Opinions”:

“Mr Styman has pleaded guilty to a charge of contempt of court. The circumstances relating to this offence were discussed with him. He expressed regret and remorse for having committed the offence and in particular expressed regret for treating the court with such disrespect. There appear to be 2 elements involved in the offence being his refusal to answer questions put to him in court and his disrespect for the court because of his abusiveness.
With regard to his refusal to answer questions in court he stated that he couldn’t comply with requests to answer questions because of fear that he would be harmed or killed and that his family would also be harmed. It is noted that the 2 accused, one of whom is his uncle, were in court and would have heard his evidence if he had agreed to answer questions. He said: ‘ I can’t tell you names but I was threatened that if I gave evidence I’d be bashed or stabbed and my family would be hurt as well’ . The impression was gained that Mr Styman had made the value decision that less harm would come to him if he were to be in contempt of court. There is no indication that he refused to answer questions because of a desire to protect the 2 accused people who were in court at the time.
His behaviour in court and the language used by him were also discussed with him. He acknowledged that he felt very angry as it had been put to him that he had no choice but to give evidence. He stated that on the day that he was at court he perceived that there had been a great deal of pressure put on him. He acknowledged that he became very angry and reacted the way that he did in the courtroom.
His results on the tests administered to him indicate that he has considerable problems with anger both in terms of his volatility in expressing his angry feelings and at times he may not have adequate control over the way which he expresses these feelings. He could be considered as having an anger disorder.
The origins of his anger disorder lie in the abusive family environment in which he was raised. He provided a history of having been frequently assaulted by his father and he said that his siblings and his mother were also assaulted. It is frequently the case that children who have been abused in this way from an early age are frequently abusive and angry during their adulthood. There have been volumes of research which have shown the link between an abusive early environment and aggression during adult years.
Mr Styman has some insight concerning his feelings of anger and expressed a strong motivation to resolve this problem. He recognises that this is going to be important for him if he is to be able to lead a stable life in the future. He is motivated to undertake counselling and courses in anger management to help him resolve this problem.”

17 Mr Young submitted on the contemnor’s behalf that the Court could properly have regard to the fear entertained by him for his safety and that of his family as an explanation for why the contemnor declined to give evidence.

18 In Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490, Newman AJ noted that it was conceded in that case that a genuine apprehension of retaliation if a person gave evidence was a factor relevant to penalty: see [18]. However, in Registrar of the Court of Appeal v Raad (unreported, 9 June 1992) Kirby P, in referring to the general pressure exerted on prisoners by the prison culture to remain silent said:

“The rule of law cannot bend to that pressure. The courts must not succumb to it.”

19 Although there is no sworn evidence to this effect, I am prepared to proceed upon the basis in this case that the contemnor had a concern that if he gave evidence his personal safety might be jeopardised and possibly that of family members. However, such a consideration can by no means excuse the contempt, and Kirby P’s remarks in Raad address what are very important considerations.

20 It is also to be borne in mind that the contempt of court here did not only consist of the refusal to answer questions but it was the way that refusal was conveyed. The contemnor’s behaviour when the court officer endeavoured to administer the oath, and so, too, the manner in which the contemnor conducted himself whilst he was in the witness box were further features of the contempt committed. Mr Young submitted that these features are to be assessed against the contemnor’s background and his anger disorder referred to by Mr Taylor. This may to some extent explain why the contemnor behaved as he did, but it certainly does not excuse his behaviour.

21 I have been asked to take into account the feature that the contemnor is mid-way through serving the non parole period of a sentence and that he is doing so in protective custody with the added hardship that that entails. Any further sentence I now impose is likely to be served in protective custody as well.

22 Further, the Court is asked to take into account the efforts made by the contemnor since he has been in prison in addressing his rehabilitation. As to this, there is, of course, no sworn evidence. However, I do not lose sight of the favourable remarks on sentence by Barr J when he was sentencing the contemnor on 28 February 2003:

“[74] During a pre-trial hearing on 27 June 2002 counsel for Shannon Styman offered on his behalf that he would plead guilty to manslaughter and aggravated robbery but not guilty of the offence of sexual intercourse without consent in circumstances of aggravation if the Crown would accept those pleas in discharge of all offences in the indictment. The last charge was based upon evidence of internal injuries found on the body of Mrs Alchin. The Crown refused the offer. On 3 September 2002, before the commencement of the trial, he pleaded guilty to the aggravated robbery count. His and the Crown’s attitudes were unchanged on the other counts, so he went for trial on them. The jury’s verdicts accorded exactly with the pleas he had offered in June. As it turned out, no hearing time was saved because of the need to try all offenders jointly, but Shannon Styman is entitled to consideration in his sentence for his willingness by making his pleas to facilitate the course of justice by containing the trial by reducing the issues. Also to be regarded as facilitating the course of justice is the manner in which his truthful evidence at trial assisted the Crown case against the other offenders. He is entitled to consideration for the economical and realistic way in which his counsel conducted his case.
[75] He is entitled to a reduced sentence for the assistance he gave the police in the account he gave under interrogation, particularly because of what he said about the telephone call to emergency services.
[76] His offer to plead guilty before trial to the offence of manslaughter supports his expressions of remorse. It is to be noted that his counsel never invited the jury to find him not guilty.
[77] I find these matters persuasive in assessment of the offender’s prospects of rehabilitation. I accept that he is genuinely sorry for what he has done and I think, notwithstanding his troubled past, that there are good prospects that he will genuinely try to live a responsible life when released from prison. I think that during the custodial part of his sentence he will work towards that end.”

23 The relevant principles in dealing with contempt of court were considered in Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527. In that case attention was directed to ten considerations which had earlier been identified in the matter of Wood v Staunton (No. 5) (1995) 86 A Crim R 183. I propose to deal with those considerations in the context of this case.

1. The seriousness of the contempt proved

24 As I have already indicated, I consider this was a very serious contempt. The contemnor had very significant evidence to give relevant to the trial of offenders charged with very serious offences. The refusal struck at the administration of justice. Returning to the judgment of Kirby P in Raad, his Honour said (at 14):

“The 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.”

25 The President’s remarks are entirely appropriate to this case.

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

26 I am satisfied that the contemnor was fully alert to the consequences to himself of his refusal to give evidence. He revealed as much in what he said on 29 September 2005:

“HIS HONOUR: You realise contempt of court is a very serious matter, don't you?
A. Well, you are going to do it anyway, so such is life.”

27 The contemnor was given the opportunity to reconsider the matter and to take legal advice and yet he persisted in his refusal to give evidence, as the events earlier outlined disclose.

3. The actual consequences of the contempt on the relevant trial or inquiry

28 Evidence was introduced at the trial pursuant to s 65 of the Evidence Act concerning the evidence which the contemnor gave at the previous trial. The trial proceeded without significant disruption notwithstanding the contemnor’s refusal to give evidence.

4. Whether the contempt was committed in the context of serious crime

29 Plainly, it was. The offences with which Peter Taber and Ian Styman were charged were very serious offences.

5. The reason for the contempt

30 I have earlier dealt with the reasons given and I have indicated that I will take them into account when determining the appropriate sentence.

6. Whether the contemnor has received any benefit by indicating an intention to give evidence

31 Barr J took into account the contemnor’s willingness to assist and the evidence that he gave at the previous trial. These were features to which favourable consideration was given when Barr J determined the appropriate sentence for the contemnor. However, this is not a case in which the contemnor received any benefit for a promise to give evidence at a new trial. The possibility of a new trial was not in contemplation when the contemnor was sentenced.

7. Whether there has been any apology or public expression of contrition

32 No express apology is to be found in Exhibit 1 but the contemnor in that document has acknowledged that nothing he has said in it excuses his outburst or the use of offensive language in court. Mr Taylor recorded that the contemnor expressed regret to him about his behaviour and the contemnor has readily acknowledged the contempt in the proceedings on 9 December 2005.

8. General and personal deterrence

9. Denunciation of the contempt

33 These considerations can be addressed together. They are relevant considerations. There is a need in determining the appropriate punishment to have regard to these matters. The importance of general deterrence was emphasised by Mahoney JA in Smith v The Queen (1991) 25 NSWLR 1 at 23:

“A punishment must be both appropriate to the offence and be seen publicly to be such. Given Mr Smith's conviction for murder and his life sentence, a further sentence will have no great effect on him: that, no doubt, is why he did what he did. It is the significance to others of the present punishment which has a particular importance. If a witness, particularly a convicted criminal, is seen to be able to defeat the trial of another criminal in this way, others will do it. The result will be that the enforcement of the criminal law and so the protection of the ordinary men and women will become difficult or impossible. Conduct 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.”

10. The character and antecedents of the contemnor

34 Shannon Styman’s antecedents were considered by Barr J when he was called upon to sentence the contemnor in February 2003. The contemnor was born on 6 April 1978. His father was cruel to him and he was frequently abused with weapons, such as a cricket bat, a baton and tyre lever. The family house was burnt when the contemnor was six years of age and he was placed in a children’s home for some time. He began to use drugs in high school. His parents separated when he was sixteen years of age and he went to live in Nowra, where he did his School Certificate. After school, he obtained various unskilled positions.

35 He has a number of convictions prior to those concerning which he was sentenced by Barr J. However, I indicate that those earlier sentences do not impact upon the sentence I am about to impose.

36 I am mindful, of course, of the sentences the contemnor is presently serving, details of which I have earlier recited.

The determination of punishment

37 The conviction for contempt of court is a conviction for an offence that is criminal in nature: see Attorney General v Whiley (1993) 31 NSWLR 314. The Crimes (Sentencing Procedure) Act applies in determining the contemnor’s punishment: see Jando (supra) at 37 [42].

38 In Jando I referred to cases dealing with the punishment of contemnors ([56]). I will not refer to the decisions then mentioned. As I observed in Jando, the penalties in those matters varied from case to case and each case has to be dealt with by particular regard to its own features.

39 Weighing all the considerations reviewed, it seems to me that the gravity of this contempt was such that it calls for a significant period of imprisonment. Under the sentences imposed by Barr J, the contemnor will become eligible for release upon parole on 25 March 2011. I propose to impose a fixed term of imprisonment of twelve months to commence on that date. I decline to set a non parole period for that sentence because I have concluded that no lesser punishment than twelve months in custody would be adequate punishment for the contempt committed. This will mean that the contemnor will become eligible for release on parole on 24 March 2012, at which time there will remain four years of the parole period to be served under the sentence fixed for the crime of manslaughter.

40 I am mindful of the contemnor’s expectation that he will be considered for reclassification in four months time. I do not intend by any of the remarks I have made in this judgment to influence adversely consideration of the contemnor’s reclassification after he has completed the first five years of the sentence he is presently serving.

Formal order

41 For the contempt identified, I sentence the contemnor to imprisonment for a period of twelve months commencing on 25 March 2011 and to expire on 24 March 2012. For the reasons stated, I decline to set a non parole period.

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