Sage v CFS22

Case [2022] FCA 1023

FEDERAL COURT OF AUSTRALIA

Sage v CFS22 [2022] FCA 1023

File number: NSD 484 of 2022
Judgment of: BROMWICH J
Date of judgment: 5 September 2022
Catchwords: CONTEMPT OF COURT – sentencing – where the respondent appearing before the Australian Criminal Intelligence Commission as a witness, refused to answer 2 questions when required by the Commissioner to do so – where the respondent is charged with 2 charges of contempt arising from the refusal to answer questions by the Commissioner – where the respond pleaded guilty to both charges of contempt – where respondent did not purge his contempt despite opportunities to do so – whether the sentence imposed should be for a fixed duration or for an indeterminate period – Held: sentence of eight months imprisonment imposed, to be released after the expiry of four months, to commence after the conclusion of the respondent’s non-parole period  
Legislation:

Australian Crime Commission Act 2002 (Cth)

ss 7, 28(1), 30(1), 30(2), 33, 34A, 34A(a)(ii), 34B, 34B(6),  34(C), 35, 46B

Crimes Act 1914 (Cth) Part 1B

Criminal Code Act 1995 (Cth) Chapter 2

Federal Court of Australia Act 1976 (Cth) s 37AF

Cases cited:

Anderson v BYFl9 [2019] FCA 1959

Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24

Australian Crime Commission v DTO21 [2022] FCA 288

Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448

Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2016) 247 FCR 277

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90

Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183

R v Razzak [2006] NSWSC 1366

Witham v Holloway (1995) 183 CLR 525

Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 47
Date of hearing: [REDACTED]
Solicitor appearing in Court for the Applicant: Mr C Hutchins
Solicitors for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr M Hutchings (direct access)

ORDERS

NSD 484 of 2022
BETWEEN:

GEOFFREY ERNEST SAGE AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant
AND:

CFS22

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

5 SEPTEMBER 2022

THE COURT DECLARES THAT:

1.The respondent is guilty of two charges of contempt of the Australian Crime Commission in that, on [REDACTED] and on [REDACTED], being a witness appearing at an examination before an Examiner, he refused to answer two questions when required by the Examiner to do so, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth).

THE COURT ORDERS THAT:

2.The respondent be imprisoned for 8 months on and from [REDACTED], to be released after the expiry of 4 months on condition that he be of good behaviour for the balance of his sentence.

3.By or before 1 November 2022, a warrant for the respondent’s committal to prison…

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AGLC
Sage v CFS22 [2022] FCA 1023
Case
[2022] FCA 1023
Decision Date

CaseChat Overview and Summary

In the matter of Sage v CFS22, the Federal Court was tasked with determining an appropriate sentence for the respondent who had been found in contempt of court for refusing to answer questions while appearing before the Australian Criminal Intelligence Commission (ACIC). The respondent, having pleaded guilty to two charges of contempt, had refused to answer questions despite multiple opportunities to do so. The central legal issue was whether the sentence should be of a fixed duration or an indeterminate period.

The court considered various factors in reaching its decision. It acknowledged the seriousness of the contempt, given the context of the investigation into criminal wealth activity potentially linked to serious crimes. The court also examined the reasons for the respondent's refusal to answer questions, finding that while his fears were genuine and rational, they were not sufficiently specific to warrant an indefinite sentence. Additionally, the court weighed the importance of general deterrence and denunciation of the contempt, alongside the respondent's criminal history and efforts to reform. The court concluded that the respondent's fears, though genuine, were not sufficiently compelling to justify an indefinite sentence. Instead, it deemed a relatively short fixed-term sentence to be appropriate, with the possibility of the respondent purging his contempt under certain conditions.

Accordingly, the court imposed a sentence of eight months imprisonment, to be released after four months, contingent on good behaviour and commencing after the respondent had served his non-parole period. The court also mandated that the ACIC and the respondent find a mutually satisfactory way for the respondent to purge his contempt. Failure to do so would result in the coercive effect of imprisonment being applied for a limited period. This approach, the court believed, balanced the competing considerations effectively.

Orders

Orders of the court

2. The respondent be imprisoned for 8 months on and from [REDACTED], to be released after the expiry of 4 months on condition that he be of good behaviour for the balance of his sentence.

3. By or before 1 November 2022, a warrant for the respondent’s committal to prison be issued and be provided to Corrective Services NSW, together with a copy of these Orders.

4. If the respondent purges his contempt:

(a) the applicant notify the Associate to Justice Bromwich of that within 2 working days; and

(b) either party has liberty to apply for an order discharging or modifying order 2 and/or order 3.

5. Liberty to apply generally.

6. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), to prevent prejudice to the proper administration of justice:

(a) The unredacted version of the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court.

(b) Within 7 days the parties provide to the Associate to Justice Bromwich a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

7. Liberty to apply generally.

8. The respondent pay the applicant’s costs of the originating application and statement of charge as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is not in contest that the contempt was committed in the context of serious crime.Whether the respondent has received any benefit by indicating an intention to give evidence It is common ground that this has no bearing in this case.Whether there has been any apology or public expression of contrition I accept the respondent’s submission that he was apologetic for not, from his stance, being able to answer. I also accept that he readily acknowledged that he was in contempt and was resigned to the consequences that might flow from that. That said, I also find that this, and the fact of the guilty plea can only be given limited weight in all the circumstances.The character and antecedents of the respondent There is no doubt that the respondent has a substantial, if not extensive, criminal history, with no prior history of contempt or like criminal offences. However, I also accept that he is making earnest endeavours to leave his criminal past behind him, run a legitimate business, have and maintain stable and supportive family life, and become a contributing member of society. I take into account a letter from [REDACTED] that reinforces that conclusion. General and personal deterrence It is common ground that general and specific deterrence is a factor, although there is nothing to indicate that the current contempt was otherwise than arising from a unique set of historical circumstances so that specific deterrence is not significant.Denunciation of the contempt It is common ground that this feature needs to be taken into account.Purging of contempt There is no doubt that the respondent has had ample opportunities to purge his contempt. Despite indications that this might occur, it has not in the absence of any coercion.Conclusion After hearing and observing the respondent’s evidence, in the context of the documentary evidence that is before me, and having the benefit of considering written and oral submissions addressed above and beyond that, and considering the authorities to which I was taken and beyond that, I am satisfied that his fears were genuine and rational, but were most acute when he was in prison, [REDACTED]. I am satisfied that the respondent is likely to be amenable to purging his contempt with a reasonable measure of coercion in the right context and with the right measures being taken to protect him. I am not satisfied that it is in the interests of justice to go further than that and impose an indefinite sentence. I have determined that it is necessary and appropriate in all the circumstances to impose a relatively short sentence of imprisonment upon the respondent, upon the basis that I am satisfied that if he does not succumb within that period, he will be unlikely to do so in a longer period or even an indefinite period. I also consider that the sentence should not commence until he has served the balance of his non-parole period [REDACTED], and should instead commence after he has had an opportunity to address the contempt while he is not in custody, so as to avoid that being necessary. [REDACTED], prison will be at its most effective when it is a threat to descend upon him if he does not change his mind. That said, the Commission will probably also need to compromise in order to get what it wants.

Decision

Reasons for decision

There is no doubt that the respondent has had ample opportunities to purge his contempt. Despite indications that this might occur, it has not in the absence of any coercion.Conclusion After hearing and observing the respondent’s evidence, in the context of the documentary evidence that is before me, and having the benefit of considering written and oral submissions addressed above and beyond that, and considering the authorities to which I was taken and beyond that, I am satisfied that his fears were genuine and rational, but were most acute when he was in prison, [REDACTED]. I am satisfied that the respondent is likely to be amenable to purging his contempt with a reasonable measure of coercion in the right context and with the right measures being taken to protect him. I am not satisfied that it is in the interests of justice to go further than that and impose an indefinite sentence. I have determined that it is necessary and appropriate in all the circumstances to impose a relatively short sentence of imprisonment upon the respondent, upon the basis that I am satisfied that if he does not succumb within that period, he will be unlikely to do so in a longer period or even an indefinite period. I also consider that the sentence should not commence until he has served the balance of his non-parole period [REDACTED], and should instead commence after he has had an opportunity to address the contempt while he is not in custody, so as to avoid that being necessary. [REDACTED], prison will be at its most effective when it is a threat to descend upon him if he does not change his mind. That said, the Commission will probably also need to compromise in order to get what it wants. The foregoing are my reasons for making a declaration of contempt, orders for the respondent to serve a sentence of imprisonment for eight months to commence after the conclusion of his non-parole period and to be released after four months on condition that he be of good behaviour, and ancillary orders providing for the Commission and the respondent to find a mutually satisfactory way of him in substance purging the contempt. If that does not take place, the coercive effect of imprisonment will apply for a relatively confined period. I consider that this approach properly balances the competing considerations.

Ratio Decidendi

Legal Principle Established

It is worth noting that a generalised fear based on unfounded claims is ordinarily given less weight when considering the reasons of contempt. In DTO21 at [62] Thawley J makes the following observation:The respondent’s fear was expressed in general terms. There is no evidence of any specific threat and the evidence does not enable any reliable assessment of whether the fear is well founded. The examination was held in private and only ACIC staff were present. There are, of course, risks which are inherent in being involved in criminal activity of the type being investigated: CRA20 at [46]; BYF19 at [63]. This factor is not ordinarily given significant weight where the fear is disputed and the evidence does not enable a reliable assessment of whether the fear is well founded: R v Drever [2010] SASCFC 27 at [24] ; Corruption and Crime Commission v Allbeury(No 2) [2011] WASC 26; (2011) 205 A Crim R 386 at [42] –[43] ; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 at [33] ; BYF19 at [58]–[61]; GPY18 at [31]; CRA20 at [45]. Consideration of the competing arguments It is convenient to address the competing arguments by reference to list of 10 considerations from Wood v Staunton (No 5) reproduced above, given that the competing submissions were framed in that way, supplemented with the issue of purging contempt.The seriousness of the contempt and the reasons for it Mr Sage points to the terms of the special operation to which the examination was directed and broadly describes what took place at the examination on both days, including in particular the two questions that the respondent refused to answer. He characterises the two contempt charges as deliberate, repeated and serious, taking place in the context of an investigation to gather information and intelligence on criminal wealth activity that may be connected to offences that involve violence, extortion, or serious drug offences. Mr Sage relies upon the observation made by Abraham J in Lusty v CRA20 [2020] FCA 1737 at [41] to the effect that such refusal undercuts the effectiveness of the legislative scheme that authorises compulsory examinations, and that the Commission would be hamstrung if all witnesses adopted the approach of the respondent, including in aid of investigations of which the examination was a part being of significant importance to the community, including the serious impact of [REDACTED], with deterrence playing a prominent role. Mr Sage characterises the reasons given as being no more than generalised fears that should be afforded little weight. As foreshadowed above, I am unable to accept that is a fair or sufficient characterisation of the reasons given by the respondent. While he did not have clear and specific knowledge of what might happen to him or a member of his family, he gave a clear enough indication of what might reasonably take place and who would have an interest in carrying this out. That does not of itself excuse the contempt, but it has a material bearing on the likely effectiveness of coercion and the utility of an indefinite sentence.