FEDERAL COURT OF AUSTRALIA
Sage v CFT22 [2022] FCA 1028
File number: NSD 485 of 2022 Judgment of: BROMWICH J Date of judgment: 6 September 2022 Catchwords: CONTEMPT OF COURT – sentencing – where the respondent appearing before the Australian Criminal Intelligence Commission as a witness refused or failed to take an oath or affirmation – where the respondent is charged with contempt of the Commission by reason of his refusal to take an oath or affirmation – where the respondent pleaded guilty to the contempt charge – where the respondent did not subsequently purge his contempt despite being presented with opportunities to do so – whether the sentence imposed should be indeterminate or for a fixed term – Held: delayed indeterminate sentence imposed, to commence on the last day of the respondent’s non-parole period Legislation: Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 28, 28(1), 30(1), 30(2), 33, 34A, 34B, 34B(6), 34C, 35, 46B
Criminal Code (Cth) Chapter 2, s 13.2
Federal Court of Australia Act 1976 (Cth) s 37AF
Crimes Act 1914 (Cth) Part 1B
Cases cited: Anderson v GPY18 [2019] FCA 954
Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24
Australian Crime Commission v DTO21 [2022] FCA 28
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
In re Nevill (1902) 117 Fed Rep 448
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 36 Date of hearing: [REDACTED] Counsel for the Applicant: J Single SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: G James QC and L James Solicitor for the Respondent: Criminal Defence Group Pty Ltd ORDERS
NSD 485 of 2022 BETWEEN: GEOFFREY ERNEST SAGE AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Applicant
AND: CFT22
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT DECLARES THAT:
1.The respondent is guilty of a charge of contempt of the Australian Crime Commission in that, on [REDACTED], being a witness appearing at an examination before an Examiner, he refused or failed to take an oath or affirmation when required to do so under section 28 of the Australian Crime Commission Act 2002 (Cth), contrary to s 34A(a)(i) of that Act.
THE COURT ORDERS THAT:
2.The respondent be imprisoned on and from [REDACTED], being the day before he is eligible for parole on the sentences imposed on [REDACTED], until further order.
3.By or before [REDACTED], 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…
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- AGLC
- Sage v CFT22 [2022] FCA 1028
- Case
- [2022] FCA 1028
- Decision Date
CaseChat Overview and Summary
The court determined that an indeterminate sentence would be appropriate, as it would allow for the coercive effect necessary to compel the respondent to comply with the ACIC's requirements. The court considered the respondent's refusal to take the oath or affirmation as deliberate and serious, especially in the context of an ongoing investigation into serious criminal activities. The court found that the respondent's criminal history and the ongoing investigation justified a coercive measure, and an indeterminate sentence would provide the necessary pressure for the respondent to comply. The court also took into account the respondent's deprived background and mental health issues, but these did not significantly influence the decision regarding the contempt charge.
The court imposed an indeterminate sentence, to commence on the last day of the respondent's non-parole period, and provided for the sentence to be revisited if the respondent purged his contempt or 12 months into his parole period. The court also allowed for an agreement between the parties regarding arrangements for the respondent to purge his contempt and for the commencement of the sentence to be delayed. The court granted liberty to apply to modify the start date of the sentence or change it in some other way if an agreement was reached.
The final orders included the imprisonment of the respondent on and from a specified date, the issuance of a warrant for his committal to prison, and provisions for the sentence to be discharged or modified if the respondent purged his contempt. The court also ordered that the unredacted version of the reasons for judgment not be published and provided for the parties to propose a redacted version for publication. The respondent was required to pay the applicant's costs of the originating application and statement of charge as agreed or assessed.
Orders
Orders of the court
2. The respondent be imprisoned on and from [REDACTED], being the day before he is eligible for parole on the sentences imposed on [REDACTED], until further order.
3. By or before [REDACTED], 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. If the parties reach an agreement on arrangements for the respondent to purge his contempt and for the commencement of the operation of order 2 and/or order 3 to be delayed to facilitate that taking place, either party has liberty to apply for an order modifying order 2 and/or order 3 to permit that to take place.
6. If order 2 is still in force as at [REDACTED], the proceeding be listed for a case management hearing on a date proximate to [REDACTED] (being 12 months from when the respondent is eligible for parole on the sentences imposed on [REDACTED]), with such hearing date to be fixed in consultation with the parties.
7. 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.
8. Liberty to apply generally.
9. 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
A material consideration is whether the contemnor has been given an opportunity to purge the contempt, and if so, whether that has taken place. The need for the coercive effect of a sentence is greater if that opportunity has been given and not acted upon, and it may add weight to the need for or value of an indeterminate sentence. As Thawley J pointed out in DTO21 at [37]:It has been observed that, because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: Wood v Galea (1995) 79 A Crim R 567 at 573; Von Doussa v Owens (No 3); Hannaford v HH at [60]‑[63]; Royal Commissioner v Staunton (unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) at [26]‑[27]; XLVII at [49(4)]; CRA20 at [34]. Indeterminate detention is inappropriate if the person has purged his or her contempt or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: Wood v Galea at 573; XLVII at [49(5)].Consideration of the competing arguments Mr Sage characterises the respondent’s contempt as deliberate and serious, being committed in the context of an investigation to gather information and intelligence on serious offences of or related to criminal wealth activity. He relies upon evidence that the inquiry is not confined to the matters upon which the respondent has been sentenced and is serving a gaol term. He also relies upon the opportunities given to the respondent to comply, both on [REDACTED] and since then, the advice as to the consequences that he was given and was also able to access, and the lack of any reason given for non-compliance (let alone any compelling reason). Mr Sage submits that prolonged delay of the examination has and will continue to adversely impact on the Commission obtaining and analysing current intelligence and other information that the respondent can likely provide, noting that there is no indication that he has obtained any benefit from his defiance, but also that he has not expressed any contrition. Mr Sage points to the respondent’s criminal history and the [REDACTED] sentence he is now serving as going adversely to his character and antecedents. Mr Sage characterises the respondent’s conduct as being very serious, citing the observations of Banks-Smith J concerning compliance with examination requirements in Anderson v GPY18 [2019] FCA 954 at [20]. Mr Sage seeks an immediate indeterminate sentence in order to coerce compliance by the respondent. The respondent relies upon the evidence and submissions that were before the sentencing judge for the [REDACTED] offences for which he is incarcerated. While I have considered that material, and take it into account generally, I did not find it of much assistance in relation to the present contempt offences. The respondent’s deprived background and his mental health issues would have been of significant relevance to those sentence proceedings, especially on the topics of culpability and deterrence when it comes only to punishment and related objectives such as deterrence. However, they do not take matters very far in relation to this very different conduct and the very different objectives guiding penalty determination for ongoing contempt which is in the hands of the respondent to rectify. That sentence material engenders a real measure of sympathy for the respondent, but does not have much bearing on the present circumstances and in particular on his considered decision not to comply and the need for coercion to encourage him to change his mind. I did not find that the submissions made on behalf of the respondent were such as to convince me otherwise.