Sage v ZZ (No 2)

Case [2015] FCA 450

FEDERAL COURT OF AUSTRALIA

Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ (No 2) [2015] FCA 450

Citation: Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ (No 2) [2015] FCA 450
Parties: GEOFFREY ERNEST (TIM) SAGE, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 v ZZ
File numbers: NSD 380 of 2014
Judges: RARES J
Date of judgment: 8 May 2015
Catchwords: SENTENCING – contempt of the Australian Crime Commission  punishable as contempt of Federal Court – where examination of contemnor concerned matters relating to national and international security – where contemnor found guilty of contempt for giving evidence to examiner that he knew to be false in a material particular – where contemnor fails to purge contempt or demonstrate remorse –power to impose indefinite period of imprisonment until contempt purged – general deterrence –consideration of impact of sentence on health of contemnor – whether discretion to impose custodial sentence affected by impact on contemnor’s mental or physical health – responsibility of prison authorities for health and welfare of prisoners
Legislation: Australian Crime Commission Act 2002 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Keeley v Mr Justice Brooking (1979) 143 CLR 162
R v Bailey (1988) 35 A Crim R 458
R v Kovac (2006) 166 A Crim R 358
R v Smith (1987) 44 SASR 587
R v Van Boxtel (2005) 11 VR 258
Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2000 v ZZ [2015] FCA 417
Von Doussa v Owens (No 3) (1982) 31 SASR 116
Date of hearing: 8 May 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 31
Counsel for the Applicant: Ms S Maharaj QC
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr G Scragg
Solicitor for the Respondent: Birchgrove Legal

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 380 of 2014
BETWEEN:

GEOFFREY ERNEST (TIM) SAGE, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002
Applicant
AND:

ZZ
Respondent

JUDGE:

RARES J

DATE OF ORDER:

8 MAY 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.On the charges of contempt of the Australian Crime Commission (the Commission) against the respondent under s 34A(c) of the Australian Crime Commission Act 2002 (Cth) in the further further amended statement of charges dated 30 March 2015:

(a)there be a verdict that the respondent is not guilty on each of particulars of contempt 1 and 5;

(b)particulars of contempt 4, 8 and 9 be dismissed;

(c)there be a verdict on particular of contempt 2 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be…

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Sage v ZZ (No 2) [2015] FCA 450
Case
[2015] FCA 450
Decision Date

CaseChat Overview and Summary

In the case of Sage v ZZ (No 2), the Federal Court of Australia was required to determine the appropriate sentence for ZZ, who was found guilty of multiple counts of contempt for providing false evidence during an examination conducted by the Australian Crime Commission (ACC). The examination was part of a special operation investigating activities related to national and international security. ZZ was found to have deliberately given false evidence in a material particular, knowing it to be false. Despite being given ample time to purge his contempt, ZZ failed to do so and showed no remorse.

The legal issues before the court included whether the court could impose an indefinite period of imprisonment until the contempt was purged, and if the court's discretion to do so was affected by the potential impact on ZZ's health. The court also had to consider the need for general deterrence and the responsibility of prison authorities for the health and welfare of prisoners. The court concluded that the failure to purge contempt necessitated a custodial sentence to uphold the law and deter others from similar conduct.

The court decided to sentence ZZ to imprisonment until he purged his contempt. The sentence was justified by the need for punishment and deterrence, given ZZ's deliberate defiance and lack of remorse. The court also noted that ZZ had reasonable prospects of rehabilitation and was likely to receive treatment for any mental health conditions in prison. The court rejected a suspended sentence, finding it would not achieve the purpose of vindicating the court's authority. The court emphasised that ZZ's health concerns were a consequence of his own actions and that prison authorities would be responsible for his welfare.

The final orders included a verdict of not guilty on some particulars, dismissal of others, and a guilty verdict on specific counts of contempt. ZZ was ordered to be held in lawful custody and appear before the court unless otherwise directed. Additionally, a copy of a redacted psychological report was to be provided to the Sheriff for transmission to the Governor of the Metropolitan Reception and Remand Centre.

Orders

Orders of the court

1. On the charges of contempt of the Australian Crime Commission (the Commission) against the respondent under s 34A(c) of the Australian Crime Commission Act 2002 (Cth) in the further further amended statement of charges dated 30 March 2015:

(a) there be a verdict that the respondent is not guilty on each of particulars of contempt 1 and 5;

(b) particulars of contempt 4, 8 and 9 be dismissed;

(c) there be a verdict on particular of contempt 2 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(d) there be a verdict on particular of contempt 3 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know, did not recall meeting and had not met the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner;

(e) there be a verdict on particular of contempt 6 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(f) there be a verdict on particular of contempt 7 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise and did not know the name of the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner.

2. Pursuant to s 77(1)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW), the Governor of the Metropolitan Reception and Remand Centre or such other prison in the State of New South Wales in which ZZ is held in lawful custody, have ZZ, a person in lawful custody, appear before the Federal Court of Australia at Queens Square, Sydney, NSW 2000 during the further hearing of the proceeding concerning him on 23 October 2015 and duly returned to confinement thereafter, unless the Court otherwise orders.

3. For the purposes of the performance of the duties of the Sheriff, the Officer in Charge of the Metropolitan Reception and Remand Centre and their proper officers, pursuant to the warrant for imprisonment signed by the Honourable Justice Rares today, each of those persons may know that the name of ZZ is XXXXX but each such person must comply with order 1 made on 17 April 2014 in respect of the suppression and non-publication of the name and any means of identifying ZZ until further order of the Court.

4. A copy of the redacted report of Dr Furst be provided to the Sheriff for transmission to the Governor of the Metropolitan Reception and Remand Centre.

5. The parties may restore the proceedings on 24 hours’ notice, or such other notice as to a judge seems fit.

THE COURT NOTES THAT:

6. Dr Furst has recommended that the respondent be assessed as to whether he:

a. should be placed under the care of:

i. a psychiatrist working for Justice Health to review his symptoms;

ii. a clinical psychologist from the Department of Corrective Services;

b. is eligible to participate in a custody based drug and alcohol rehabilitation program.

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

Full text does not contain this section.

Decision

Reasons for decision

You have not expressed any remorse or regret for your deliberate conduct. Nor have you offered to purge your contempt by answering the examiner’s questions. That is despite you having five weeks since I found you to have committed during which you had ample time to reflect on whether or not you should purge your contempt. Dr Furst said that when he recently examined you there were no indications that you were thought disordered or psychotic and that you did not appear to be severely depressed. He did not express an opinion that you were incapable of understanding that you had a clear choice that would enable you to avoid going to prison if you chose to purge your contempt.Conclusion I find that your failure to purge your contempt shows that there is no alternative but to order that you to go to prison. That is because, first, you must be punished for your continued deliberate defiance of your legal obligations to answer questions in the examination truthfully and, secondly, there is a fundamental need to deter others from doing what your are doing. I accept Dr Furst’s opinion that you have reasonable prospects of being successfully rehabilitated. I also find that you are likely to receive treatment for whatever mental conditions you may have and that you are not receiving any such treatment now. You have no assets or earnings, so fining you or threatening to take any assets you might have had would serve no purpose. Your counsel has suggested that I could impose a suspended sentence of imprisonment on you. In my opinion, that would provide a derisory result that would not achieve the purpose of vindicating the Court’s power and authority to compel you to fulfil your civil obligation to answer questions before the examiner according to the law. To the extent that imprisonment may affect your mental health, you have consciously chosen to defy the Court and your legal obligation by not offering to purge your contempt. You have brought the punishment of indefinite imprisonment on yourself by continuing to treat your legal obligations with contempt. It gives me no pleasure to see a young person with no criminal history, such as yourself, sent to prison. But you have left the Court with no real choice in your sentence. The Court must uphold the law. It must require witnesses in administrative proceedings, like those in which you are a witness before the examiner, to comply with their legal obligations and answer questions. There is only one way to do this in your case and that is to send you to prison until you purge your contempt. You can do that at any time. Please stand up. On the charges of contempt of the Commission against the respondent under s 34A(c) of the Australian Crime Commission Act in the further further amended statement of charges dated 30 March 2015, I order that:(a)there be a verdict that the respondent is not guilty on each of particulars of contempt 1 and 5;(b)particulars of contempt 4, 8 and 9 be dismissed;(c)there be a verdict on particular of contempt 2 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;(d)there be a verdict on particular of contempt 3 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know, did not recall meeting and had not met the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner;(e)there be a verdict on particular of contempt 6 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;(f)there be a verdict on particular of contempt 7 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise and did not know the name of the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner.

Ratio Decidendi

Legal Principle Established

As I found, the purpose of your examination was to provide information for a special operation conducted by the Commission in support of the Australian Federal Police/Joint Counter Terrorism Team Operation investigation into certain alleged activities of YAAY and others: Sage [2015] FCA 417 at [21]. The operation involved matters important to the Commonwealth relating to national and international security. The Commission has been given important functions and powers by the Parliament under the Australian Crime Commission Act.These include the conduct of compulsory examinations of persons, such as yourself, for the purposes of an intelligence operation that it is undertaking and that its Board has determined to be a special ACC operation/investigation (ss 4(1) and 28). Under the Act, an intelligence operation is one that is primarily directed towards, among other matters, the collection of criminal information and intelligence relating to offences against a law of the Commonwealth or Territory, or against a law of a State that has a federal aspect. The Parliament has decided that the Commission should have the lawful authority to exercise these functions and powers for the public interest, including the security of Australia.Subjective factors I have taken into account that you have no previous criminal history, that you are only 21 years of age and were just on either side of 20 when the two sets of offending occurred. I also take into account that you are unemployed, although, as your father said, you occasionally have casual employment in a tree lopping business, and live at home with your family with your parents and younger sister who is still at school. You have no dependents. You do not appear to have any savings or assets to forfeit or with which to pay a fine. I have taken into account that you are possibly lacking maturity and that, as Dr Furst said in his most recent report, you appear to function at a low intellectual level, having an IQ in the lowest 6% of the population. These factors may have impacted on your decision-making and judgment when answering questions put to you in the examination. I am also conscious that, in your present circumstances, you have had ample opportunity to obtain advice, not only from counsel and solicitors but also your family and others concerned for your welfare, as to what you may be subjecting yourself to by failing or refusing to purge your contempt. And, I have taken into account that even as counsel were addressing today, you had a further opportunity, after a short adjournment, to avoid the sentence that I was suggesting that I might impose by purging your contempt even at that point, but you have not given your counsel instructions that you wish to do so. As Dr Furst noted, you are sufficiently aware of your current predicament to appear to be anxious about your fate today. I have taken into account the supportive evidence which your father has given today, including how he has perceived your personality to have changed following your incarceration in the Middle Eastern intelligence organisation’s prison for a month in 2012. I have weighed that evidence against what I observed on the CCTV footage at Sydney airport on 29 September 2013, where you were interacting with YAAY and others in a perfectly normal fashion, showing no indication of any mental distress. In that CCTV footage, you were laughing and acting normally in what appeared to be a perfectly happy and congenial situation, in which you found yourself with a person you were well familiar with, being YAAY.