Sage v CFT22 (No 2) - [2023] FCA 594

FEDERAL COURT OF AUSTRALIA
Sage v CFT22 (No 2) [2023] FCA 594

File number: NSD 465 of 2022

Judgment of: BROMWICH J

Date of judgment: 5 June 2023

Date of publication of reasons: 7 June 2023

Catchwords: CONTEMPT – re-sentencing – where the respondent was found guilty of contempt of the Australian Crime Commission by reason of his refusal or failure to take an oath or affirmation – where a delayed indeterminate sentence was originally imposed, to commence at the conclusion of an existing non-parole period – where the respondent purged his contempt after the sentence began, having foreshadowed an intention to do so before it commenced – Held: a sentence of imprisonment varied to a fixed term from 20 May 2023 until 27 July 2023, to be suspended on 29 June 2023

Legislation: Australian Crime Commission Act 2002 (Cth) ss 28, 34A(a)(i)

Cases cited:
Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118; 94 NSWLR 777

Anderson v XLVII [2015] FCA 19; 319 ALR 139

Lusty (Examiner) v DER22 [2023] FCA 255

Lusty (Examiner) v DEZ22 [2022] FCA 1581

Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495

Sage v CFT22 [2022] FCA 1028

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: 10

Date of hearing: 5 June 2023

Counsel for the Applicant: Ms J Single SC

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr G James KC

Solicitor for the Respondent: Criminal Defence Group Pty Ltd

ORDERS

NSD 465 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:

5 JUNE 2023

THE COURT ORDERS THAT:
1.Order 2 made on 6 September 2023 be varied so that it reads:
The respondent be imprisoned on and from 20 May 2023 until 27 July 2023.

2.The sentence of imprisonment imposed on 6 September 2022 and varied by order 1 above be suspended on 29 June 2023.
3.These reasons not be published beyond the parties until the respondent is released from prison.
4.The applicant ascertain when the respondent has been released from prison and communicate that by email to the associate to Justice Bromwich, whereupon these reasons may be published beyond the parties.
5.The additional materials advanced by the parties for the purpose of re-sentencing be confidential for the purposes of r 32(1)(b) of the Federal Court Rules 2011 (Cth), such that no third person is to have access to them without the leave of the Court.

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

REASONS FOR JUDGMENT
(Delivered ex tempore)
BROMWICH J:

On 6 September 2022, I made a declaration that the respondent was guilty of a charge of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sage v CFT22 (No 2)

Details

AGLC: Sage v CFT22 (No 2) [2023] FCA 594
Case: [2023] FCA 594
Decision Date: 5 June 2023

CaseChat Overview and Summary

The respondent, Sage, was found guilty of contempt of the Australian Crime Commission for his refusal or failure to take an oath or affirmation. The Federal Court was asked to re-sentence the respondent after he had already begun serving a delayed indeterminate sentence, which was set to commence after the completion of an existing non-parole period. The respondent had purged his contempt prior to the sentence beginning, having previously indicated an intention to do so. The court was tasked with determining the appropriate sentence in light of the respondent's actions and the original sentencing order.

The legal issues before the court centred on the appropriate sentence to be imposed on the respondent for his contempt, considering his actions and the original sentencing order. The court had to balance the need to ensure the integrity of the legal process against the respondent's actions in purging his contempt. The court also had to consider the respondent's conduct in indicating an intention to purge his contempt prior to the sentence commencing.

The court found that the appropriate sentence was a fixed term of imprisonment from 20 May 2023 until 27 July 2023, to be suspended on 29 June 2023. The court considered the respondent's actions in purging his contempt and his conduct in indicating an intention to do so before the sentence began. The court also considered the need to ensure the integrity of the legal process and the appropriate balance between punishment and rehabilitation. The court concluded that the fixed term sentence was appropriate in the circumstances, taking into account all relevant factors.

The orders made by the court included varying the original sentence to a fixed term from 20 May 2023 until 27 July 2023, to be suspended on 29 June 2023. The court also ordered that the reasons for the decision not be published beyond the parties until the respondent is released from prison. Additionally, the court ordered that the additional materials advanced by the parties for the purpose of re-sentencing be confidential, such that no third person is to have access to them without the leave of the Court.

Orders

Orders of the court

1. Order 2 made on 6 September 2023 be varied so that it reads:

The respondent be imprisoned on and from 20 May 2023 until 27 July 2023.

2. The sentence of imprisonment imposed on 6 September 2022 and varied by order 1 above be suspended on 29 June 2023.

3. These reasons not be published beyond the parties until the respondent is released from prison.

4. The applicant ascertain when the respondent has been released from prison and communicate that by email to the associate to Justice Bromwich, whereupon these reasons may be published beyond the parties.

5. The additional materials advanced by the parties for the purpose of re-sentencing be confidential for the purposes of r 32(1)(b) of the Federal Court Rules 2011 (Cth), such that no third person is to have access to them without the leave of the Court.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 465 of 2022
Judgment of:	BROMWICH J
Date of judgment:	5 June 2023
Date of publication of reasons:	7 June 2023
Catchwords:	CONTEMPT – re-sentencing – where the respondent was found guilty of contempt of the Australian Crime Commission by reason of his refusal or failure to take an oath or affirmation – where a delayed indeterminate sentence was originally imposed, to commence at the conclusion of an existing non-parole period – where the respondent purged his contempt after the sentence began, having foreshadowed an intention to do so before it commenced – Held: a sentence of imprisonment varied to a fixed term from 20 May 2023 until 27 July 2023, to be suspended on 29 June 2023
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 28, 34A(a)(i)
Cases cited:	Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118; 94 NSWLR 777 Anderson v XLVII [2015] FCA 19; 319 ALR 139 Lusty (Examiner) v DER22 [2023] FCA 255 Lusty (Examiner) v DEZ22 [2022] FCA 1581 Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495 Sage v CFT22 [2022] FCA 1028 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:	10
Date of hearing:	5 June 2023
Counsel for the Applicant:	Ms J Single SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr G James KC
Solicitor for the Respondent:	Criminal Defence Group Pty Ltd

ORDER MADE BY:	BROMWICH J
DATE OF ORDER:	5 JUNE 2023