Registrar of the Supreme Court of South Australia v Zappia (No 2) No. Scciv-02-1324

REGISTRAR OF THE SUPREME COURT OF
SOUTH AUSTRALIA v ZAPPIA (No. 2)
[2003] SASC 327
Civil
BLEBY J:
Background

On 22 August 2003 I found the defendant guilty of two charges of contempt of Court arising out of his failure to answer questions put to him by prosecution counsel when directed to do so by the trial Judge. The circumstances of his failure are fully described in my reasons for decision published on that occasion: Registrar of the Supreme Court of South Australia v Zappia [2003] SASC 276. I will not repeat all the circumstances set out in those reasons.
The defendant was called to give evidence against Jamil Yousef Kamleh on his trial of two counts of murder. The defendant had previously been acquitted of the same charges, but had been found guilty by a jury of two counts of manslaughter in respect of the same victims. At the time of committing these contempts he had instituted an appeal against his convictions, which appeal was subsequently successful on one of the counts of manslaughter. In respect of that count the Court of Criminal Appeal directed a retrial: R v Zappia (2002) 223 LSJS 155; [2002] SASC 354. The Director of Public Prosecutions did not proceed with the retrial, and on 4 July 2003 the defendant was sentenced on the one conviction of manslaughter to nine years imprisonment with a non-parole period of six years, the sentence to commence from the date on which he was taken into custody, namely 15 July 2000.
On the hearing of these charges I rejected the defendant’s defence based on a claim for privilege against self-incrimination which was said to justify his refusal to answer the questions. That claim was asserted on two bases. I found that the defendant’s claims were unfounded, and that, in truth, he refused to answer the questions because of an unwillingness to cooperate with the prosecution in giving evidence which might assist in proving the charges against Mr Kamleh.
Kamleh’s trial was before a Judge without a jury. Notwithstanding the defendant’s refusal to testify against Kamleh, he was convicted on both counts of murder: R v Kamleh [2003] SASC 3. He subsequently appealed, and his appeal was dismissed: R v Kamleh [2003] SASC 269. I will refer later to some aspects of the reasons of the trial Judge on Kamleh’s conviction.
Whether the Criminal Law (Sentencing) Act applies
As will be seen, these contempts require punishment by imprisonment. This raises a matter of some importance concerning the applicability of the Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) because the defendant is already serving a substantial sentence of imprisonment subject to a period of possible parole.
Section 32 of the Sentencing Act relevantly provides:
“(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must –
(a)    …………..
(b)    if the person is subject to an existing non-parole period – review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)    …………….”.
The question is whether, in present circumstances, the Court is convicting the defendant of an offence and is sentencing the defendant to imprisonment, so as to invoke the operation of s 32.
“Sentence” is relevantly defined in s 3 as meaning “the imposition of a penalty”. Other relevant statutory provisions include sections 4 and 5 of the Sentencing Act. They provide:
“4.Subject to this Act, the powers conferred on a court by this Act are in addition to, and do not derogate from, the powers conferred by any other Act or law to impose a penalty upon, or make any order or give any direction in relation to, a person found guilty of an offence.
5.Nothing in this Act affects the powers of a court to punish a person for contempt of that court.”
There is an associated potential difficulty in the application of s 74A of the Correctional Services Act 1982. That section provides:
“74A.Where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum –
(a) the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and
(b) on release from prison –
(i)the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and
(ii)if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole.”
If I am not imposing a sentence of imprisonment but am committing him to prison, the Correctional Services Act is silent as to what happens if I add that committal to his existing sentence. If the Sentencing Act does not apply but I am nevertheless sentencing the defendant to a sentence of imprisonment, this section may work an injustice if I add the sentence to the defendant’s existing sentence.
Unaided by authority, and for reasons which will become apparent, I would have little difficulty in concluding that the defendant has been convicted of an offence for the purposes of s 32 of the Sentencing Act and that what I am about to do is to sentence him to imprisonment for the purposes of s 32 of the Sentencing Act and s 74A of the Correctional Services Act.
However, whether that is so requires a careful analysis of the decision of the Full Court in Nicholls v Director of Public Prosecutions (1993) 61 SASR 31.
The reasoning in Nicholls v DPP
In that case a journalist was charged with impersonation, false pretences and forgery. He gave evidence at his own trial to the effect that whilst he had received the information the subject of the charges, he had not obtained it personally. When directed by the Court to identify the source of his information he refused to disclose it. He was acquitted of the criminal charges but pleaded guilty to a charge of contempt. He was ordered to be committed to prison for four months, the trial Judge being of the opinion that with remissions provided by what was then s 79 of the Correctional Services Act, he would, in effect, be imprisoned for approximately three months. He appealed against his sentence. The grounds of appeal alleged that the sentence was excessive for a number of reasons. One of the grounds alleged that the sentencing Judge erred in having regard to remissions. Each member of the Court, in separate judgments, held that for the purpose of s 79 of the Correctional Services Act the defendant was not serving a “sentence of imprisonment” by virtue of the Court’s order, and for that reason s 79 had no application. Accordingly, the sentencing Judge erred in taking remissions into account.
“Sentence” and “sentence of imprisonment” were not defined for the purposes of the Correctional Services Act. I mention in passing, however, that s 79, by its terms, did not apply to a prisoner who was liable to serve “a sentence of indeterminate duration”. That was defined as meaning “detention in custody until further order of a Court”.
In the closing paragraph of his sentencing remarks the sentencing Judge in Nicholls said:
“I also considered that it was inappropriate to sentence you until you purged your contempt. You are therefore sentenced to four months imprisonment. Of course, if at any time you wish to purge your contempt by disclosing your source, it is part of this order that your term of imprisonment will be at an end.”
The actual order as recorded in the records of the District Court did not reflect that rider: see Mullighan J at 57. However, for reasons that will become apparent, all judges seem to have acknowledged that, even without the rider, the imprisonment was subject to possible cancellation.
Besides considering the application of s 79 of the Correctional Services Act, the Court also considered the application of the Sentencing Act, as it was argued that the Court had failed to apply s 11, which specifies the circumstances in which a sentence of imprisonment can be imposed.
Legoe ACJ took the view that the imprisonment ordered was of uncertain length, subject to a maximum term. In relation to the application of the Sentencing Act his Honour said, at 41-42:
“[I]n my opinion, an order under s 48 that a contemptor be imprisoned until the contemptor has purged the contempt is not a ‘sentence’ that can be fashioned by the provisions of the Sentencing Act, and particularly s 11. Section 11 says that imprisonment shall not be imposed unless certain matters are considered and apply. An order committing a contemptor to prison until the contempt is purged is clearly a complete stranger to the Sentencing Act but not the case here as not going to prison until purged. Finally and most significantly s 5 of the Sentencing Act says that nothing in that Act shall affect orders for contempt of court. Counsel for the appellant argued that this section does not totally exclude punishment for contempt from the Sentencing Act. I do not accept that submission for the reasons I have just expressed. In my opinion the District Court is limited to the alternatives in s 48 (District Court Act 1991)and the guidelines for the sentencing of prisoners as set out in s 11 of the Sentencing Act do not apply to contempts.”
Without elaborating, his Honour also held that s 79 of the Correctional Services Act did not apply.
Perry J at 48-49 set out the provisions of s 79 of the Correctional Services Act. He noted that s 22 of the same Act referred to “a person who is sentenced to imprisonment or committed to prison” (original emphasis) and continued, at 49:
“In my opinion, the distinction drawn in s 22(2) between a person ‘sentenced to imprisonment’ and a person ‘committed to prison’ is an indication that the words ‘a sentence of imprisonment’ where they appear in the Act, and in particular in s 79, apply to a situation other than where there has between a mere committal to prison.
Section 12(1) of the Criminal Law (Sentencing) Act 1988 obliges a court in fixing the term of a ‘sentence of imprisonment’ to have regard to any remissions of sentence to which the prisoner may become entitled under the Correctional Services Act. Section 5 of the same Act provides:
‘Nothing in this Act affects the powers of a Court to punish a person for contempt of that court.’
In my view, that section of the Criminal Law (Sentencing) Act should be construed so as to render the Act inapplicable to punishments imposed for contempt.”
Taken literally, that would mean that s 74A of the Correctional Services Act and the whole of the Sentencing Act have no application to this case at all. When dealing with the argument as to the applicability of s 11 of the Sentencing Act, Perry J repeated his view that the Sentencing Act was “not of application to this case” (at 52).
When dealing with the argument based on s 11 of the Sentencing Act, Mullighan J said, at 61:
“Section 11 expresses a well-known sentencing principle that a court entrusted with a sentencing discretion should regard imprisonment as a sentence of last resort: Weetra v Beshara (1987) 46 SASR 484 and Chapman v Harries (unreported, Supreme Court, SA, Full Court, No S3867, 15 March 1993). In my view the Criminal Law (Sentencing) Act has no application to punishment for contempt of court. It is an Act, as stated in the preamble, ‘to consolidate and amend the law relating to sentencing and the enforcement of sentences …’. Section 5 of that Act provides:
‘Nothing in this Act affects the powers of a court to punish a person for contempt of that court.’ ”
Mullighan J also considered that the appellant was not serving a sentence for the purpose of s 79 of the Correctional Services Act. He said, at 63:
“In my view the appellant is not a prisoner who is serving a sentence of imprisonment within the meaning of s 79. He has been committed to prison for a specified term. Section 48 of the District Court Act does not provide for a sentence of imprisonment but for the punishment of a contempt by committing to prison. This distinction is to be observed in s 22(2) of the Correctional Services Act which provides that ‘a person who is sentenced to imprisonment or committed to prison’ will be imprisoned in such correctional institution as the Chief Executive Officer of the Department of Correctional Services determines. Section 39 provides for the release from prison of a contempt prisoner who purges his or her contempt. A contempt prisoner is defined in s 4(1) as a person committed to prison, or sentenced to imprisonment, for failure to comply with an order for payment of a pecuniary sum, or for contempt of court. Where fines are imposed it is common for a sentence of imprisonment to be imposed in default of payment of the fine. The distinction between a person sentenced to imprisonment and a person committed to prison is necessary. A sentence is a final order of a court which, usually, may only be varied on appeal. Committal to prison for contempt of court even for a fixed period is always subject to variation. Rule 93.10 provides that where a person, such as the appellant, is committed to prison for a specified period, the court may order his discharge before the expiration of that period. No doubt the learned judge had this power in mind when he made the rider to his order. It was inadequately expressed but it clearly meant that if the appellant was prepared to disclose the source, an application under r 93.10 would be favourably received.”
Just as s 48 of the District Court Act does not provide for a sentence of imprisonment but for punishment of contempt by committing to prison, Rule 93.08 of the Supreme Court Rules provides:
“(1)The Court may punish contempt of Court by committal of the person to prison or fine or both, or by the imposition of a bond to be of good behaviour with such other conditions as may be proper, and by ordering the person to pay the costs of the contempt proceedings.
(2)When the Court imposes a fine, it may allow time to pay and in default of payment within that time order that the person be imprisoned for a fixed period.
(3) The Court may on the person making proper tender of apology and amends recall or reconsider any previous order of the Court punishing him for his contempt.”
Rule 93.10 also provides:
“Where a person in contempt is committed to prison for a specified period, the Court may order his discharge before the expiry of that period.”
It is therefore clear that, unlike a sentence imposed for breaches of the Criminal Law Consolidation Act or for other common law offences, which sentences can only be varied on appeal, imprisonment for contempt, even for a fixed term, is subject to earlier cancellation or modification by the Judge who commits the defendant to prison. Even in a situation where it seems unlikely that a contempt could effectively be purged, the possibility remains that the period of imprisonment may not necessarily be completed if the Court so orders.
It was because of this possibility of subsequent variation that Perry and Mullighan JJ in Nicholls v Director of Public Prosecutions seem to have concluded that a committal for contempt could not amount to a sentence of imprisonment for the purpose of s 79 of the Correctional Services Act. Another way of expressing the position is that the committal is of indefinite duration subject to a maximum period fixed by the court. Legoe ACJ treated the imprisonment in that case as being of uncertain duration and therefore not a “sentence” for the purposes of the Sentencing Act or s 79 of the Correctional Services Act. All Judges of the Court expressed the view that the Sentencing Act does not apply at all to imprisonment for contempt because committal for contempt was not the same as a sentence of imprisonment.
The inability to apply s 32, Sentencing Act
If that is correct, it presents great difficulty to a judge in fashioning an appropriate penalty for contempt in a situation like the present where there is an existing uncompleted sentence. If imprisonment for contempt is not a sentence of imprisonment for the purposes of s 79 of the Correctional Services Act, it cannot be a sentence of imprisonment for the purposes of s 32 of the Sentencing Act.
The Court cannot interfere with the existing sentence. If s 32 of the Sentencing Act does not apply it cannot review the non-parole period in the light of the total period of imprisonment to which the defendant would then become subject. If it were to direct that the imprisonment for contempt take effect at the time at which the defendant would otherwise be released on parole, it would be interfering with the existing sentence by effectively reducing the period for which the defendant would be eligible for parole. If it directed that the period of parole of the existing sentence be deferred until after completion of the period of imprisonment for contempt it would also be interfering with the existing sentence by extending its operation. If it directed that the penalty for contempt be served concurrently with the existing sentence it would effectively be imposing no penalty at all for what justifies separate and additional punishment. If it directed that the imprisonment be served on completion of the existing head sentence, there is a possibility that any opportunity for parole would be denied by virtue of the operation of s 74A of the Correctional Services Act. If that view is incorrect, then it would also be quite unsatisfactory to have the defendant serve the period of imprisonment for contempt at the conclusion of any period of parole. These problems can be avoided if s 32 of the Sentencing Act is allowed to operate in the present circumstances.
Nicholls and the Correctional Services Act
The relevant ratio decidendi of Nicholls v Director of Public Prosecutions in relation to the application of the Correctional Services Act is that s 79 did not apply to a period of imprisonment for contempt of Court. In my opinion, that conclusion was justified without the necessity of holding that an order of imprisonment for contempt for a fixed term is not a sentence of imprisonment. I say this for two reasons.
First, essential to the conclusion that such imprisonment is not a sentence of imprisonment is the fact that the period of imprisonment, although fixed initially, is, by virtue of the Court’s powers, necessarily uncertain. Section 79(1) of the Correctional Services Act by its own terms excluded from the operation of the section the case of “a prisoner who is serving, or is liable to serve, a sentence of indeterminate duration”. That is defined as meaning “detention in custody until further order of a court”. Although on its face the order in Nicholls was imprisonment for four months, for reasons explained in Nicholls, it was in reality an order for imprisonment until further order subject to a pre-determined maximum of four months. Because of the qualifying provision in s 79, it was not necessary to decide that the order was not a “sentence of imprisonment” in order to conclude that s 79 of the Correctional Services Act did not apply to it.
Secondly, other cases to which the Full Court appears not to have been referred to in Nicholls, or which have been decided since Nicholls, suggest that committal for a fixed term for contempt is indeed a sentence of imprisonment.
One of the questions which arose in Morris v Crown Office [1970] 2 QB 114 was whether s 39 of the Criminal Justice Act 1967 (UK) applied to an order for imprisonment for contempt. The effect of s 39 was to provide for mandatory suspension of prison sentences in certain circumstances. Sub-section (3) provided:
“A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall make an order under sub-section (1).”

Lord Denning MR, with whom Davies and Salmon LLJ agreed, held that although sub-section (3) applied in its terms to imprisonment for contempt, other provisions of the Act made clear that the scheme of suspension of sentences was unable to be applied by judges of the High Court or of the County Court. Unlike judges of the Criminal Courts, they had no power to give effect to a suspended sentence in the manner contemplated by the scheme of the Act. That section could therefore not apply to imprisonment for contempt.
Nevertheless, in considering the terms of the section itself, Lord Denning MR (at 123-124) held that the word “offence” was wide enough to include a contempt in the face of the Court. As to the phrase “sentence of imprisonment” he said, at 124:
“Finally the words ‘sentence of imprisonment.’ When the judge commits a person to prison for three months, he is inflicting a ‘sentence of imprisonment.’ There is no doubt about it – unless, of course, there is something in the statute which says it is not to be regarded as a sentence. In this statute there is a provision in section 104 which excludes certain matters from being sentences of imprisonment. It excludes committal for any non-payment of money (like a committal for debt on a judgment summons); or committal for non-payment of rates (when there is not sufficient distress); or committal in respect of a civil contempt (as for failing to obey an injunction). All those are civil matters which are excluded. Section 104 does not in terms exclude criminal contempt as it was excluded in the Criminal Justice Act, 1961. Prima facie, therefore, it is included in the words ‘sentence of imprisonment.’ ”
In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 the applicability of the Sentencing Act 1989 (NSW) was not in issue, but Kirby P, with whom Hope A-JA agreed, made some pertinent remarks about the nature of a conviction for perjury. At 314 he said:
“A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, 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 approximately emphatic way.”
The Court of Appeal (Clarke JA, Meagher JA and Handley JA) in a joint judgment in Attorney-General for New South Wales v Whiley (1993) 31 NSWLR 314 affirmed (at 320) that a conviction for contempt of Court is a conviction for an offence which is criminal in nature. See also R v Jando (2001) 125 A Crim R 473 at [13], [14] and [39].
If, as Lord Denning MR held in Morris v Crown Office, imprisonment for contempt is properly punishment for an offence and comes within the concept of “sentence of imprisonment”, there is no reason why it should not be so regarded for the purpose of the former s 79 of the Correctional Services Act, only to be excluded from the operation of that section by virtue of its being a sentence of indeterminate duration. There is no reason why it should not also come within the concept of a person being sentenced to imprisonment for the purpose of s 74A of the Correctional Services Act, if indeed that section applies.
Nicholls and the Sentencing Act
Each of the Judges in Nicholls v Director of Public Prosecutions expressed the view that the Sentencing Act did not apply to imprisonment for contempt. Such a broad assertion was not necessary for the decision. The relevant ground of appeal raised only the applicability of s 11 of the Sentencing Act. Perry J (at 52) and Mullighan J (at 61) were both of the opinion that s 11 merely reflected principles which had always guided the Courts in sentencing, regardless of the applicability of s 11, and accordingly the finding that s 11 of the Sentencing Act did not apply was not necessary for the decision. The question whether imprisonment was appropriate at all was decided according to common law principles as they are reflected in s 11 of the Sentencing Act. Accordingly, I regard such remarks as being obiter dicta and not binding on me. I must, however, accord, them due weight and not depart from them without good reason.
In my opinion there are persuasive reasons why such views should not be followed. In the first place, if I am correct in holding that contempt is an offence and that by imprisoning a person for a fixed term, albeit subject to earlier determination, the Court is in reality imposing a sentence of imprisonment, there is no reason why provisions in the Sentencing Act such as s 10, s 11 and s 32 should not apply. Section 10 requires that the Court should have regard to such of the matters listed as are relevant “in determining sentence for an offence”. Not all of the matters listed will be relevant. Such matters may be ignored. Section 11 provides that a “sentence of imprisonment” may only be imposed in the circumstances specified in that section. Those circumstances apply equally to the imposition of a maximum term of imprisonment for contempt as they do to the imposition of a term of imprisonment of any other offence. Section 32 applies where the Court “on convicting a person of an offence, sentences the person to imprisonment”. “Sentence” is defined in s 3 as meaning –
“(a) the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)the fixing or extending of a non-parole period; or
(d)the making of any other order or direction affecting penalty.”
Subject to that definition, there is no reason why the words and phrases used in the sections to which I have referred should not have applied to them their ordinary meaning as discussed in the cases to which I have referred.
In the second place, I do not see that that position is affected in any way by the provisions of s 5. That merely provides that nothing in the Act affects the powers of the Court to punish a person for contempt. It does not remove the Sentencing Act from the process of sentencing a person for contempt. I would liken it to an inconsistency provision having the effect that if, in the circumstances, the Court wishes to impose a penalty not specifically provided for in the Sentencing Act, or to impose a penalty in a manner inconsistent with the provisions of the Act, the Court, in those circumstances, will not be bound by the Act. An example might be the application of s 32 in another context. If the Court were dealing solely with imprisonment for a maximum term for contempt, it may be inappropriate to fix a non-parole period (if the sentence is for one year or more) because of the possibility of earlier release. Section 5 ensures that the Court, in these circumstances, is not obliged to fix a non-parole period.
In the third place, as the Court recognised in Nicholls, there is a difference between a sentence of imprisonment for a fixed term, albeit one that may be varied or discharged at a later date by the same Court, and committing a person for contempt indefinitely until the contempt is purged. That was the form of imprisonment which was the subject of decision in von Doussa v Owens (No 3) (1982) 31 SASR 116. It is a committal to prison for an indefinite term, and cannot properly be described as a sentence of imprisonment of the type referred to in the Sentencing Act. Indeed, most of the provisions of the Sentencing Act would be quite inappropriate to imprisonment of that type. That is one form of punishment for contempt. However, where events have moved on and the Court is fixing a maximum term of imprisonment as a punishment for a contempt that has been committed in the past, with little prospect of it being satisfactorily purged, it becomes a sentence of imprisonment to be dealt with, as applicable, under the Sentencing Act. In my opinion, it makes no difference that, for some reason, the sentence may later be discharged before the maximum term has been served. When the Court is fixing a maximum term of imprisonment for contempt, it is adopting the same process as it does in fixing a penalty for any other offence. If adjustments are made to an existing non-parole period as a result of that sentence and the sentence is later discharged, then it may be necessary for the Court then to make further consequential adjustments to the non-parole period.
In the fourth place, the New South Wales Court of Appeal has decided in Attorney-General for New South Wales v Whiley (1993) 31 NSWLR 314 that the Sentencing Act 1989 (NSW) applies to sentencing for contempt of Court in that State[1]. That was a decision which was made after the decision of this Court in Nicholls. To some extent the decision turns on the particular provisions of the New South Wales Act, not all of which are replicated in the South Australian Act. To that extent its authority in this State is limited. Nevertheless, there were other powerful reasons why the Court held that the New South Wales Act did apply, which reasons, subject to the operation of s 5, are equally applicable to the Sentencing Act. At 320-321 the Court said:
“There are, in addition, strong policy reasons for applying the Act to the sentencing of a person for contempt. First, it would provide consistency in sentencing, especially where the contempt could also amount to an offence under the Crimes Act; secondly, it is to the benefit of the opponent that, if sentenced to imprisonment, he is given the opportunity to have parole and to serve part of his sentence under the supervision in the community; and thirdly, the Sentencing Act provides for a more flexible sentencing approach so that the sentence can be structured to take into account more readily the interests of both the community and the offender and to provide for supervision upon release from custody.
It is true that courts in other jurisdictions have seen a need to exclude normal sentencing principles in respect of sentences for contempt. An example is Morris v Crown Office [1970] 2 QB 114. There it was said that a judge had erroneously ordered the imprisonment of certain persons in contradiction of a number of sections of the Criminal Justice Act 1948 (UK). But that Act, and the Criminal Justice Act 1967 (UK), imposed fetters upon the power to imprison which, if applicable to cases of contempt, struck at the powers of the courts to protect the integrity of the administration of justice. Because the provisions of those Acts, if applied to contempt of court, would impose unacceptable fetters upon the power to imprison, the Court of Appeal concluded that it was not the intention of parliament that sentencing orders for contempt should come within their provisions.
There are no similar considerations in respect of the Sentencing Act 1989. None of its provisions in any way fetter the power of the court adequately and properly to deal, and deal promptly, with contempts of court. Although the court in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 held that powers under the Community Service Orders Act 1979 did not apply when a person was found guilty of contempt no reason appears from that decision why the Sentencing Act itself should not apply where a person is imprisoned for contempt. In these circumstances the proper conclusion is that the provisions of the Sentencing Act do apply.”
[1] That decision has not attracted universal approbation: See Wood v Galea (1996) 84 A Crim R 274 per Hunt CJ at CL at 276-277. However, Hunt CJ’s concerns would have no application in South Australia by virtue of s 5 of the Sentencing Act, which has no counterpart in New South Wales.
In my opinion, those policy reasons are equally applicable to the application of the Sentencing Act to punishment involving a maximum term of imprisonment for contempt of Court in this State.
Application of the Sentencing Act
Accordingly, in my opinion there is no reason why I should not apply the relevant provisions of the Sentencing Act in fixing what in effect will be a maximum term of imprisonment of the defendant in this case. That includes the provisions of s 10 of the Act. In any event that section only requires the Court to have regard to such of the matters listed in that section as are relevant and known to the Court. It also follows that s 32 of the Sentencing Act will apply, thus avoiding the difficulties that would otherwise arise in the present case if it did not apply. While s 5 ensures that the provisions of the Act cannot act as a fetter on the powers of the Court in sentencing for contempt, it does enable the provisions of s 32 to be applied in this case in a practical and sensible way.
The relevant sentencing principles
The relevant sentencing principles for contempt have been addressed on a number of occasions by the New South Wales Supreme Court and the English Court of Appeal: Wood v Galea (1996) 84 A Crim R 274 at 274-292; R v Montgomery [1995] 2 All ER 28. The matters relevant for consideration in assessing an appropriate punishment for this type of contempt were summarised by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185:
“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 contempt.”
See also R v Jando (2001) 125 A Crim R 473 at 478.
These matters, while directly relevant to contempt, have their counterparts in s 10 of the Sentencing Act. There are no other relevant matters in that section which require consideration in this case. It is convenient to consider the matters listed above.
1.Seriousness of the contempt. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Kirby P said at 315:
“The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR 1422 (1927) at 1429.”
I respectfully agree. This contempt must be regarded as very serious. The refusal to answer strikes at the heart of the administration of justice. Mr Kamleh was charged with two counts of murder. The defendant persistently refused to cooperate in giving evidence.
Having read the judgment of Gray J in R v Kamleh [2003] SASC 3, I am conscious that Gray J accepted evidence from a Mr Loader of what amounted to a confession by Kamleh at or about the time when the defendant was refusing to give evidence. That confession referred to an alleged agreement between Kamleh and the defendant not to testify against each other on their trials and that he (Kamleh), if acquitted, would tell the Court on the defendant’s appeal that he (Kamleh) was responsible, he then not being able to be tried again. While that was evidence admitted against Kamleh, it cannot be used against the defendant, and I expressly refrain from doing so.
2.   Whether the contemnor was aware of the consequences to himself of what he did. There can be no doubt that, on both occasions when the defendant refused to answer questions directed by the Judge to be answered, he had had legal advice. He had been advised by his counsel of the possible consequences of refusal and was warned by the trial Judge of those consequences. He nevertheless persisted with his refusal.
3.   The actual consequences of the contempt on the trial. Notwithstanding the defendant’s refusal, Kamleh was convicted on both counts of murder, and his convictions were upheld on appeal. I have already referred to Mr Loader’s evidence. That was introduced late in the trial, and it concerned events surrounding the defendant’s refusal to give evidence. It was obviously evidence of great significance leading to the conviction of Kamleh. Whether Kamleh would have been convicted in the face of the defendant’s refusal and without the evidence of Mr Loader is a moot point. I suppose it can be said that in a strange way the defendant’s contempt assisted in generating evidence which was instrumental in convicting Mr Kamleh. However, he can derive no credit for that. The fact remains that there was a distinct possibility that, without the defendant’s evidence, Kamleh’s chances of conviction were substantially diminished.
4.   Whether the contempt was committed in the context of a serious crime. There can be no doubt that the charges against Kamleh were extremely serious.
5.   The reason for the contempt. The defendant has given no evidence to explain the reason for his refusal. On his behalf there was submitted a pre-sentence report and a report of Dr Craig Raeside. There is nothing in those reports which would explain his refusal. There is no evidence that he feared for his own safety. He was offered numerous opportunities to explain why he declined to answer the questions before the trial Judge. On one occasion on the voir dire and another at the trial, he gave as his reason the alleged privilege based on his possible retrial – a reason which I have rejected as having any substance. The only other occasion on which he proffered an explanation for not answering was by saying “because I’m not a rat”. I conclude that the defendant’s reason for refusing to answer was a deliberate and contumacious refusal to give evidence against Mr Kamleh.
6.   Whether the contemnor has received any benefit by indicating an intention to give evidence. There was no relevant undertaking given by the defendant that he would give evidence which resulted in any lighter sentence being imposed on him for his crimes. He was not finally sentenced on the manslaughter charge until after Kamleh had been convicted and after the contempt had been committed. Whilst the fact that his refusal was referred to in sentencing submissions relating to the manslaughter, that was not put by way of aggravation but merely as evidence of lack of remorse for his part in the killing of the victim.
7.   Whether there has been an apology or public expression of contrition. There has been no apology or expression of contrition, and no plea of guilty. There is little, if anything, that the defendant could now do which would assist in purging his contempt. If there is, and if that takes place, it may be a matter for later review of his penalty. For the purpose of determining his maximum term of imprisonment, he is entitled to no benefit on this account and must be sentenced as a contumacious offender.
8.The character and antecedents of the contemnor. I have already referred to the two reports placed before me. They were the reports which were placed before the sentencing Judge when sentencing the defendant for manslaughter. Much of what is stated in those reports is not relevant to this offence.
The defendant is presently aged 26 years. His childhood was uneventful. He was educated to Year 10 at school, leaving school when he was aged 16. He has worked as a plasterer, yard hand and bricklayer’s labourer. He has no relevant prior record
He appears to have the love and support of his family. There has been some drug and alcohol abuse since becoming an adult, but there is no psychiatric history or illness. I take into account what appears to have been the defendant’s excellent behaviour in prison, his compliance and cooperation with the prison regime and his using time in prison constructively.
9.General and personal deterrence. Courts are entitled to expect cooperation from members of the public in giving evidence, whether that be for the purpose of assisting in securing conviction for an offence, or whether it be for the purpose of assisting an accused in obtaining a verdict of not guilty. If that expectation is allowed to be diminished in any way so that witnesses can effectively choose whether or not they give evidence, the system of justice as we know it would be severely prejudiced and would be in danger of collapse. The system relies substantially on persons coming forward to give oral evidence. There must continue to be a powerful incentive on all persons to cooperate. Those who would protect their own must realise that this comes at a substantial cost. Where there is a deliberate failure, such as the one now before me, effective deterrence against contumacious refusal is of fundamental importance. I respectfully adopt what Mahoney JA said in Smith v The Queen (1991) 25 NSWLR 1 at 23:
“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.Denunciation of the contempt. The need for denunciation of the contempt is obvious, and I need say no more on that topic.

In my opinion it is inappropriate to make allowance for any period of parole in the sentence which I impose. There is a much greater emphasis on punishment in sentencing for contempt than in sentencing for other offences where considerations relating to rehabilitation might be much more important. Besides, there is still a theoretical opportunity for the defendant to purge his contempt. If that were to occur it might result in some reduction. However, it is necessary, in accordance with the provisions of s 32 of the Sentencing Act, to reconsider the total non-parole period in the light of the sentence now to be imposed.
Although there are two separate charges, they relate to a refusal to answer the same questions and for the same reasons. It happens that in this case there was a voir dire examination as well as the trial, which required the questions to be answered on two occasions. It is appropriate that I impose a single penalty for the two offences.
For the reasons which I have given I commit the defendant to imprisonment for a period of 15 months to be cumulative upon his present sentence of 9 years. That makes a total head sentence of 10 years and 3 months imprisonment. For that head sentence I fix a non-parole period of 7 years and 3 months. The combined sentence and non-parole period commence as from 15 July 2000.

[2003] SASC 327

19 September 2003