Scott v NPQ

[2021] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

Scott v NPQ [2021] QSC 321

PARTIES:

MICHAEL JOHN SCOTT (as Presiding Officer of the Crime and Corruption Commission)
(applicant)
v

NPQ
(respondent)

FILE NO/S:

BS No 9703 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

6 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2021

JUDGE:

Williams J

ORDER:

The orders of the Court are that:

1.   I am satisfied beyond reasonable doubt that you are in contempt of the presiding officer in that you refused to answer a question asked in the circumstances stated in the Certificate of Contempt of the applicant dated 29 July 2021.

2.    I order that you be imprisoned for a term of 45 days from today to be served wholly in a corrective services facility;  account being taken of the full period you have already been in custody since 11 March 2021.

3.    I direct that the originating application, the Certificate of Contempt, the affidavits filed herein, the outlines of submissions and the exhibits be placed in an envelope, which is to be sealed and marked “Not to be opened without an order of the Court”.

4.   I direct that a copy of these reasons once they are released, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – where the applicant sought an order that the respondent be punished for contempt – where the Crime and Corruption Commission was authorised to hold an investigative hearing in relation to a serious crime – where the respondent was required to attend the hearing – where the respondent refused to answer the question – where the respondent did not claim a reasonable excuse not to answer the question – where the respondent admits that he was in contempt of the applicant pursuant to section 198(1)(c) of the Crime and Corruption Act 2001 (Cth) (the Act) in that he refused to answer a question without reasonable excuse contrary to section 190(1) of the Act – whether the contempt has been established

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where the respondent was remanded in custody in March 2021 and has served a period of approximately 255 days in custody on remand in respect of charges of trafficking in dangerous drugs – where the applicant contended that a punishment in respect of the contempt should be imposed, not taking into account any of the time spent in custody – whether the sentencing judge ought to exercise her discretion to take the pre-sentence custody into account in arriving at the appropriate sentence to impose

O’Connor v CD [2016] QSC 37, considered
O’Connor v OP [2016] QSC 38, considered
O’Connor v Witness G [2013] QSC 281, considered
O’Connor v Witness I [2014] QSC 82, considered
R v Cannon[2005] QCA 41, considered
R v Fabre[2008] QCA 386, considered
R v Hart;  ex parte Cth DPP[2006] QCA 39, considered
Scott v FC [2016] QSC 178, considered
Wood v Staunton (No 5) (1996) 86 A Crim R 183, considered

Crime and Corruption Act 2001 (Qld), s 190, s 192, s 194, s 198, s 199

Penalties and Sentences Act 1992 (Qld), s 159A, s 161

COUNSEL:

P Price for the applicant
J P Feely for the respondent

SOLICITORS:

Crime and Corruption Commission for the applicant
Ashkan Tai Lawyers for the respondent

1. By way of an originating application, the applicant seeks an order that the respondent be punished pursuant to section 199(1) of the Crime and Corruption Act 2001 (Qld) for his contempt of the applicant.

2. The applicant was the presiding officer at a hearing of the Crime and Corruption Commission at which the respondent was required to attend and give evidence on 23 July 2021. 

3. It is alleged that the respondent refused to answer a question put to him by the applicant and that this conduct amounts to a contempt of the applicant in accordance with section 190 of the Act.

4. A certificate of contempt of the applicant dated 29 July 2021 has been tendered at the hearing.  The certificate sets out the circumstances of the alleged failure of the respondent to answer a question put to him at the hearing by the applicant. 

5. Affidavits have also been filed on behalf of the applicant and the respondent. 

   Relevant statutory provisions

6. Section 190 of the Crime and Corruption Act 2001 (Qld) provides:

   “(1)A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.

   …

   (2)     The person is not entitled–

   (a)     to remain silent; or

   (b)to refuse to answer the question on a ground of privilege, other than legal professional privilege.”

7. Section 194 sets out the process to be followed where a person claims to have a reasonable excuse for not complying with a requirement to answer a question put to the person. Under that section, the presiding officer must decide whether or not there is a reasonable excuse. If the presiding officer decides the person did not have a reasonable excuse for not complying with a requirement, the presiding officer must give the person reasons for the decision, require the person to answer the question and to advise the person of appeal rights.

8. Section 198 of the Act provides the grounds upon which a person is in contempt of the presiding officer conducting a commission hearing. This includes at the hearing contravening the provision of the Act relating to the hearing.

9. Subsection (4) provides that to remove any doubt, it is declared that certain contraventions in relation to a hearing may be certified in writing to the Supreme Court under section 199 as a contempt of the presiding officer. This includes a failure by a person under section 190 or 192 to answer a question put to the person at the hearing by the presiding officer without a reasonable or lawful excuse.

10. Section 199 of the Act deals with punishment of contempt. Pursuant to subsection (2) the presiding officer may certify the contempt in writing to the Supreme Court.

11. Pursuant to subsection (8), if the Court is satisfied the person has committed the contempt, the Court may punish the person as if the person had committed the contempt in relation to proceedings in the Court.

12. Further, pursuant to subsection (8A), the Court must punish the person in contempt by imprisonment if the contempt that is certified in certain specified matters which include a failure by a person under section 190 or 192 to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse, and the Court is satisfied the person has committed the contempt.

13. Subsection (8B) states the maximum punishment the Court may impose for contempt, namely: for the first contempt the maximum is 10 years imprisonment;  the second contempt 14 years imprisonment or the third or subsequent contempt life imprisonment. 

14. For the purposes of subsection (8B), a term of imprisonment imposed under that subsection must be ordered to be wholly served in a corrective services facility. 

15. Section 199(10) provides that the presiding officer’s certificate of contempt is evidence of the matters contained in the certificate.

16. While the UCPR applies to proceedings in respect of a contempt, the proceedings are criminal in nature and the requisite standard is beyond reasonable doubt.

    Relevant circumstances of the contempt

17. It is not in dispute that in October 2020 a relevant delegate approved a serious crime investigation under a valid referral. 

18. Further, on 2 November 2020 the applicant, being an approved delegate for the purposes of section 176 of the Act, authorised the holding of a hearing in relation to that investigation. 

19. In July 2021, the applicant issued an attendance notice requiring the attendance of the respondent at a hearing for the purposes of the investigation. 

20. On 23 July 2021 the respondent attended as required and was represented at the hearing by lawyers.

21. The applicant was advised of his rights.  Further protective orders pursuant to section 180(3) and 197 of the Act were made.

22. The respondent was then sworn and asked background questions by Counsel Assisting.  In response to the background question, the respondent answered:

    “I choose not to answer any more questions here today.  I’m well aware that it is an offence under the Act of all that sort of stuff, I would choose that I’m not interested in answering any further questions.” 

23. Following that response, the applicant then asked whether the respondent claimed a reasonable excuse to refuse to answer the question.  The respondent responded:

    (a)“I don’t really mind, I just don’t want to answer any more questions.”

    (b)“I have no intention … to answer … any more questions.”

    (c)“I’m already incarcerated I’m already, I’m well aware of the consequences of this matter, so I have no intention of answering any further questions here today.”

24. In respect of whether the respondent was claiming a reasonable excuse pursuant to the Act, the applicant asked again whether the respondent was claiming any reasonable excuse not to answer any particular question.  The respondent said “no.” 

25. The applicant also enquired as to whether the respondent had been threatened by anybody.  The respondent answered “no.” 

26. Further, the applicant enquired as to whether the course taken had been suggested to him by anybody.  The respondent responded “[n]o. It’s under my free will that I choose not to answer anymore questions here today”.

27. The applicant then outlined the consequences for failing to answer a question under section 190 of the Crime and Corruption Act. 

28. The respondent answered “I’m willing to be prosecuted for the offence … it is my choice not to answer any more questions.” 

29. The applicant outlined the provisions in section 199 of the Crime and Corruption Act 2001 (Qld) in relation to contempt of Court.

30. Following that exchange, the applicant indicated that a relevant question needed to be asked.  Counsel Assisting then proceeded to ask “… [w]hat do you know … of the persons responsible for planning and committing the murder of [name of deceased] at [location] on [date]?” For the purposes of the reasons, I have not identified the particular name and location. 

31. The respondent responded “I choose not to answer any further questions today.” 

32. The applicant then proceeded to put the same question to the respondent.  The respondent again responded that he chose not to answer that question.  Further, it was asked that if any other questions were asked would the same response be taken.  The respondent confirmed this position. 

    Has the contempt been established?

33. The applicant bears the onus of establishing beyond reasonable doubt that the respondent has committed the contempt. 

34. The applicant submits that contrary to section 109 of the Act the respondent failed to answer a question when required by the applicant without a reasonable excuse. 

35. It is in these circumstances that the applicant submits that the respondent is in contempt of the applicant, pursuant to section 198(1)(c) of the Act, in that he failed to answer a question put to him by the applicant, without a reasonable excuse, and despite being informed of the consequences of so refusing.

36. The respondent was legally represented at the hearing of the application and admits the circumstances as alleged by the applicant. Consequently, the respondent admits that he was in contempt of the applicant pursuant to section 198(1)(c) of the Act in that he refused to answer a question without reasonable excuse contrary to section 190(1) of the Act.

37. Further, the respondent has indicated that he is not willing to return to the Crime and Corruption Commission to purge his contempt.

38. On the evidence, I am satisfied pursuant to section 199(8) of the Act that the respondent has committed the contempt.

39. Accordingly, I find that the respondent has acted in contempt of the applicant, being satisfied beyond reasonable doubt.

    Relevant factors – appropriate punishment

40. The case of Wood v Staunton (No5) (1996) 86 A Crim R 183 at 185 provides some assistance in the identification of the relevant factors to be considered when determining the appropriate punishment for contempt. These include:

    (a)the seriousness of the contempt proved; 

    (b)whether the contemnor was aware of the consequences to himself of what he did;

    (c)the actual consequences of the contempt on the relevant trial or inquiry;

    (d)whether the contempt was committed in the context of a serious crime; 

    (e)the reason for the contempt; 

    (f)whether there has been an apology or public expression of contrition; 

    (g)the character and antecedents of the contemnor; 

    (h)general and personal deterrence;  and

    (i)denunciation of the contempt.

41. These factors have been applied by judges of this Court in cases involving punishment of contempt under section 199 of the Act.

42. The applicant’s submissions address a number of these factors. 

43. In relation to the seriousness of the contempt, it is submitted that the contempt is a serious one.  This is so particularly against the background of an investigation into the murder of the deceased. 

44. The facts relied upon by the applicant supporting a likely connection between the respondent and the circumstances of the death of the deceased and those believed to have been involved is set out in the evidence relied upon by the applicant. 

45. I will not go into detail of the facts in these reasons, but they are relevant lines of inquiry regarding a Ciphr phone and a vehicle which is likely the respondent would have knowledge of. 

46. In respect of the factor of awareness of the consequences to the contemnor, the respondent was made aware of the consequences of committing contempt by the applicant.  In light of this, the respondent did not change his position. 

47. A further relevant factor is the consequence to the investigation.  It is submitted that it is impossible to know the actual consequences to the investigation or prosecution arising from the respondent’s failure to answer questions.  However, it is submitted that by leaving these questions unanswered, the investigation has been impeded.

48. Further, it is alleged that the refusal to answer questions has resulted in a lost opportunity to gather timely information and additional resources have been required to make further inquiries into information which the respondent could assist the investigation with. 

49. As this is an investigation into alleged organised criminal activity, it is submitted that the respondent’s refusal to answer contributes to the “code of silence” involving those who participate in the organised criminal activity.

50. In respect of the factor or reason for the contempt, the respondent did not identify a reason for not answering any more questions or the particular question.  He indicated he was willing to be prosecuted for the offence. 

51. In this regard the applicant notes that witnesses with a reasonable excuse for refusing to answer questions may not be found in contempt for such a refusal and even where a reasonable excuse is not given, a witness may offer some explanation as to why the contempt was committed and this may be considered in mitigation. 

52. In the particular circumstances of this case, the respondent did not provide a reasonable excuse, nor did he offer any explanation in mitigation as to why his contempt was committed. 

53. In these particular circumstances, the applicant submits that any suggestion of fear held by the respondent should be afforded little weight in mitigation. There was no particular or specific threat identified by the respondent. 

54. The applicant also contends that even where threats are made, the authorities such as R v Garland (1997) 95 A Crim R 264 and R v El Kholed [2009] QSC 335 provide support for the proposition that a fear of reprisal, even where specific threats are made, provides little mitigation.

55. Here, the respondent has not offered any reason for the contempt. 

56. In respect of the factor of the respondent’s character and antecedents, the applicant notes the respondent is currently 30 years old.  He also has a criminal history with convictions for producing and possessing dangerous drugs and weapons possession. 

57. The respondent has been on remand for unrelated offences and time spent in custody is not declarable in relation to the contempt.  Therefore, the applicant submits that the respondent has not spent any time in custody attributable to the alleged contempt.  

58. In respect of the factor of deterrence, it is submitted that the general deterrence is an important aspect in determining the appropriate punishment for contempt.

59. The applicant relies upon the comments of Byrne SJA in Callanan v F where it was observed that if witnesses are unwilling to participate in investigative hearings in connection with the commission of serious crimes, then that is likely to greatly disadvantage the community. 

60. Whilst contempt proceedings are held in closed Court and decisions are usually de-identified, it is contended that this does not detract from the deterrent value of punishments for contempt.

61. Further, reference is made to the decisions of the Queen v Freeman where Pincus JA observed that a contempt in the form of a witness refusing to give evidence strikes at the foundation of the criminal justice system and the principal reason for imposing a substantial sentence is to discourage other persons similarly minded to refuse to cooperate.

62. Applegarth J found these comments relevant in respect of proceedings for contempt of a Commission hearing in O’Connor v Witness I [2014] QSC 82.

63. In that case, Applegarth J identified that the contempt undermines aspects of the criminal justice system and involves calculated disregard of legal obligations which, unless denounced by the imposition of a substantial punishment, undermine the criminal justice system by encouraging others to disregard their legal obligations.

64. Ultimately, following a review of comparable decisions, the applicant submitted that a punishment in the current matter of six to 12 months imprisonment was supported by the authorities.  Further, the applicant submits that a penalty towards the higher end of the range is justified in the present case given the following particular features: 

    (a)the respondent was aware of the consequences to himself when he refused to answer questions; 

    (b)the contempt was committed in the context of a serious crime and perhaps the most serious of criminal offences. 

    (c)The respondent’s refusal to answer questions has severely impeded the investigation; and

    (d)the respondent did not provide a reasonable excuse for the refusal. 

65. Reference is made to the decision of Scott v M[1] where Boddice J recognised that the range of punishment in contempt cases was six to nine months imprisonment where the contemptor was not the main target of the Commission’s investigation and who had no relevant criminal history. 

    [1]Unreported; Transcript of Proceedings dated 29 August 2011.

66. That matter involved an investigation into alleged drug and related offences.  The current matter is more serious. 

67. Reference is also made to the matter of O’Connor v Witness G [2013] QSC 281 which involved a Commission investigative hearing in relation to the murder of the respondent’s brother-in-law. In that case, the respondent refused to answer a question and Wilson J considered that the applicable range of penalty was seven to eight months imprisonment, but imposed a sentence at the bottom of that range and also took into account time that had been served on remand.

1. In O’Connor v Witness I [2014] QSC 82 the investigation was in relation to an unlawful killing. In that case, the respondent was young, had a relative lack of criminal history, admitted the contempt and indicated a willingness to purge the contempt, although this did not occur. The Court imposed an effective sentence of 12 months imprisonment having regard to the seriousness of the matter and that the respondent was not of peripheral interest in the investigation.

2. In Scott v FC [2016] QSC 178, Douglas J sentenced the respondent to eight months imprisonment in respect of questions asked in relation to an investigation into drug and weapons trafficking. The respondent was a named person of interest but was not the principal subject. He was 28 years of age and had relatively minor criminal history for drug offending and had not served any actual time in custody.

3. The applicant contends that the respondent’s circumstances are most similar to that in O’Connor v Witness I [2014] QSC 82 in that it involved an investigation into an unlawful killing and it was apparent that the witness possessed evidence in relation to the circumstances of the offence.

   Respondent’s position

4. Submissions made on behalf of the respondent addressed the consequences to the inquiry, the respondent’s antecedents and the comparative cases. 

5. In respect of the consequences of the respondent’s refusal to answer questions, ultimately it is submitted that the evidence sought from the respondent was peripheral.  The respondent makes a number of submissions as to the assessment of the seriousness of the contempt including:

   (a)the evidence that the investigators came into possession of a great deal of evidence and other information concerning the homicide; 

   (b)[redacted] defendants were charged with murder before the respondent was called before the Commission; 

   (c)the respondent appeared at the Commission about nine and a-half months after the murder occurred; 

   (d)the investigation remains ongoing and further witnesses are to be called; 

   (e)it is not asserted the respondent was himself a suspect in the murder although blanket protections were afforded; 

   (f)the evidence sought from the respondent was peripheral.  The respondent contends that it was removed from the act itself in terms of the circumstantial chain of reasoning;

   (g)at least some aspects of the evidence sought from the respondent are entirely speculative. 

6. In respect of the respondent’s criminal history, Counsel on behalf of the respondent points to a significant gap in his offending history between 2014 and 2020 suggesting that the respondent can regulate his own behaviour and remain conviction-free.It is also contended that there are no similar offences and in these circumstances, the need for specific deterrence is not heightened.

7. In respect of the comparative cases, particular reference is made to the additional authorities of O’Connor v OP [2016] QSC 38 and O’Connor v CD [2016] QSC 37, where Henry J imposed a punishment of three months imprisonment and four months imprisonment, respectively.

8. In respect of O’Connor v OP [2016] QSC 38, Henry J considered the refusal to take the oath in respect of a large scale drug trafficking investigation. The respondent was 24 and without conviction and was not the main target of the investigation.

9. In O’Connor v CD [2016] QSC 37, the respondent had refused to take the oath when brought before the Commission in respect of a lengthy drug trafficking where the respondent had known the principal target and there was some crossover with the respondent’s own operation. There, the respondent had a bad criminal history with a variety of terms of imprisonment. The notional starting point was six months but it was elevated to seven to eight months as a notional term and then ameliorated to four months cumulative on an existing term of imprisonment.

10. The respondent relies upon the following features in mitigation:

    (a)The respondent has admitted his contempt without the requirement of a contested hearing, saving on the expenditure of time and resources.  I am treating this, in effect, as a guilty plea and have taken that into account in arriving at an appropriate punishment. 

    (b)The respondent answered the summons, took the affirmation and was otherwise polite at the hearing. 

    (c)The respondent has a number of prejudicial aspects in his upbringing.

    (d)The respondent has a limited criminal history and no relevant convictions.

    (e)This is the respondent’s first instance of contempt in respect of the investigation and at all.

    (f)The evidence sought from the respondent was peripheral and in the circumstances, the investigation taken as a whole could not be said to be seriously impeded by the refusal to answer questions, particularly where prosecutions had commenced.

11. In these circumstances, the respondent submits that the appropriate exercise of the Court’s discretion would be to impose a period of six to nine months imprisonment to be wholly served in a correctional facility. 

    Consideration

12. As was recognised by Boddice J in Scott v M:[2]

    “Contempt is a serious matter.  A party has an obligation in an investigative hearing to answer questions.  To refuse to answer questions, particularly in circumstances where the person has had the benefit of legal advice, shows a total disregard for the administration of justice.  It prevents an effective investigation of serious crime.  That is a matter which affects the general public at large.”

    [2]Unreported; Transcript of Proceedings dated 29 August 2011.

13. The contempt in this circumstance is particularly serious.  It clearly goes to the heart of interference with the administration of justice and accordingly, there is a need for both general and personal deterrence in circumstances where a person refuses to answer questions. 

14. The respondent does have a relevant criminal history; however, there is no prior offending of the same nature. 

15. Whilst the respondent did cooperate with the investigation to the extent that he answered the summons, took the affirmation and was otherwise polite at the hearing, those factors relied upon in mitigation can only have minimal effect on the overall sentence to be imposed.  It is acknowledged that the respondent admitted his contempt without the requirement for a contested hearing and that does need to be factored in when arriving at the appropriate punishment. 

16. Further, while there may be some aspects of the respondent’s anticipated evidence which could be classified as “peripheral”, on the evidence before the Court it is likely the respondent would be able to assist the investigation in respect of a number of relevant lines of inquiry.  Whilst the respondent was not a primary target of the investigation, he was clearly a person who was likely to be able to assist the investigation with relevant information.

17. In these circumstances, the investigation has been impeded. 

18. It is also relevant that no explanation was provided by the respondent as to why he declined to answer any questions. 

19. Following the initial hearing, I arranged for the matter to be listed for further consideration of the issue of the structure of the sentence, and in particular what use could be made of the time spent in custody in mitigation of the sentence.  The respondent was remanded in custody on 11 March 2021 and as at the date of initial hearing had been in custody for a period of 239 days in total, which is approximately eight months.  The contempt occurred on 23 July 2021, therefore a period of approximately four months had been spent in custody since that date.  The respondent was on remand in respect of the drug trafficking offence, not the contempt. 

20. Non-declarable time in custody has been dealt with in the cases in different ways.  In the matter of O’Connor v Witness G [2013] QSC 281, Margaret Wilson J concluded that the time in pre-sentence custody would not be declarable. However, her Honour further concluded it would be fair for some allowance to be made for the time already served and she was satisfied that the Court had inherent power in fixing the penalty for contempt to make allowance for it. Her Honour expressed the nominal penalty was seven months and from that, the 33 days already served on remand was deducted. The sentence imposed on that day was for a term of imprisonment of five months and 27 days imprisonment.

21. By taking into account the 33 days already served on remand, her Honour, in effect, took into account the total time that the respondent in that case had been in custody. 

22. In the matter of O’Connor v Witness I [2014] QSC 82, Applegarth J recognised that a factor in that case was that the respondent had been held in custody, awaiting the final determination of the matter for a period of approximately six months which could not be declared pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld). In that particular circumstance, the respondent had been in custody since his bail was revoked because he had to remain in custody in order to be dealt with and punished for his contempt of the Commission.

23. It was also recognised that it was important that the respondent not obtain “double credit” for the period of custody and Justice Applegarth made it clear that the time of six months had been fully taken into account in imposing a punishment for contempt.  His Honour made specific orders to ensure that at any future sentence in respect of the offences upon which she was on remand, the reasons would be available to the DPP and the Court.  This ensured that it was clear how the time that had been taken into account in imposing a term of imprisonment for the contempt.

24. It has been urged on me to adopt similar orders in respect of any sentence imposed, taking into account time served in custody. 

25. In further oral submissions, it was identified that Applegarth J had only taken into account part of the time served in custody, which was from the time that the contempt had occurred.  On behalf of the applicant, it was contended that in respect of the current respondent this would mean that the lesser period from 23 July onwards would only be the relevant period to be considered by the Court to be taken into account in mitigation of the sentence. 

26. Further, it was contended that, in both of the comparative cases, the respondents had been remanded also in respect of the contempt.  That is different to the current case.  

27. The ultimate position contended for by the applicant is that a punishment in respect of the contempt should be imposed, not taking into account any of the time spent in custody.  This submission appears to be that as the contempt procedure under the Act is self-contained that it should be dealt with separately to other offending.  However, this does not sit well with the general sentencing principles which this Court should apply in arriving at an appropriate sentence. This requires further consideration of the relevant principles, including the cases of R v Cannon [2005] QCA 41 and R v Hart;  ex parte Cth DPP [2006] QCA 39.

28. In the case of R v Cannon [2005] QCA 41, the Court of Appeal was considering a period spent of 404 days by way of sentence and remand, although the remand period did not relate solely to the offences the subject of the sentence being considered. In the particular circumstance of that case, the consideration was in relation to a period of pre-sentence custody which was not declarable but also post-sentence custody. McMurdo P recognised that as the Court of Appeal had indicated in Ainsworth, “although ordinarily it is appropriate to take the whole of the pre-sentence custody into account at the first opportunity, a sentencing judge is not obliged so to do”.

29. Her Honour went on to conclude “[t]here seems no reason why this Court, consistent with the observations in Ainsworth should not now give Mr Cannon credit for the time spent in pre-sentence custody which cannot be the subject of a declaration under s 161.”

30. Further, Williams JA described the time in custody as being “on remand for a variety of offences some of which have not yet been dealt with by the courts”. It was found that the sentencing judge erred in not making some allowance for the time already spent in custody, even though it could not be declared pursuant to section 161 of the Penalties and Sentences Act 1992 (Qld).

31. Williams JA concluded:

    “[14]Although the presentence custody was with respect to the offence with which the court is now concerned and other charges which are yet to come before the courts (including a charge of drug trafficking), it is appropriate that the applicant on the sentence now in issue before this court be given credit for it.  One does not know what the outcome on the other charges, including the retrial, will be.”

32. Further, Williams JA concluded:

    “[15]In circumstances such as this it is impossible to impose a sentence which takes into account with precision all competing relevant factors.  At the end of the day a sentence must be moulded which imposes appropriate punishment for the criminal conduct in question and makes due allowance for time already spent in custody.”

33. Mackenzie J also agreed for similar reasons.  His Honour concluded:

    “[21]… it is speculative what will happen in the event that the applicant is re-tried for home invasion offences or tried for drug trafficking and the related offences.  In the circumstances as they stand, the applicant is in my view entitled to some credit for time served, although mathematical exactness is not always obligatory in such cases.  It is in my view not a case where the fact that there are pending trials should disentitle him from such allowance at this time.”

34. Similarly, in R v Hart;  ex parte Cth DPP [2006] QCA 39, the Court of Appeal considered time that could not be declared under the Penalties and Sentences Act 1992 (Qld). In the reasons of Jerrard JA, with whom McMurdo P and Atkinson J agreed, his Honour stated:

    “[81]That leaves only the issue of the time in jail on another conviction.  I do not think it was wrong in principle for the learned judge to take that into account, nor to give it the weight that the judge did.  The misfortune of being imprisoned when he ought not to have been was a relevant personal circumstance upon which Mr Hart could rely for some mitigation of an otherwise appropriate penalty.  In R v Cannon [2005] QCA 41 this Court reaffirmed the existence of a general sentencing discretion to consider as a mitigating factor a period of presentence custody which could not strictly be deducted pursuant to section 161 of the Penalties and Sentences Act 1992 (Qld).”

35. In the current case, Counsel on behalf of the respondent referred to the Court of Appeal decision in R v Fabre [2008] QCA 386.

36. In that case, Fraser JA, with whom Keane JA and Muir JA agreed, considered the circumstance where the applicant had been in custody for a period of 161 days. The pre-sentence custody related to the two offences which the applicant had pleaded guilty and been sentenced, and also in relation to charges on a number of other offences. It was accepted that time could not be declared under section 159A of the Penalties and Sentences Act 1992 (Qld). His Honour observed:

    “[11]Nevertheless, as the sentencing judge recognised, a sentencing court retains a discretion to take the period of pre-sentence custody into account in arriving at the appropriate sentence. So much was confirmed by this Court’s decision in R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93.”

37. The Prosecutor and Defence Counsel in that case submitted that the period of pre-sentence custody should be taken into account by reducing the time the applicant was required to serve in custody.  The sentencing judge rejected those submissions.  The sentencing judge observed that it was likely that there would be a future situation where the applicant would be able to be given credit for the time which he had served.  In any event, the sentence could be re-opened. 

38. Fraser JA commented:

    “[13]It is to be noted that this approach was necessarily premised on the view that it was likely that the applicant would be convicted of at least some of the other alleged offences in respect of which his counsel had communicated the applicant’s instructions that he intended to plead not guilty.

    [14]Unfortunately his Honour’s attention was not drawn to the decisions of this Court in which it has been held that, although it is not mandatory, it is generally desirable to take into account periods of pre-sentence custody which are not declarable under s 159A of the Act at the first opportunity: R v Ainsworth [2000] QCA 163 and R v Voss [2000] QCA 176 … This Court has recently endorsed that general approach: see R v Cannon [2005] QCA 41 …

    [15]That general approach should continue to be followed in Queensland.  It has the advantage that if the offender is subsequently acquitted of the other charges an application for re-opening of the sentence will not be necessary:  that accords with the strong policy of the law that there be an end to litigation.  Further, if credit for the pre-sentence custody has been given at the first opportunity and the offender is subsequently convicted of the other charges which also justified the offender being held in custody, it ordinarily should be simpler for the subsequent sentencing court to impose cumulative terms of imprisonment where that is warranted by the circumstances.

    [16] The manner in which the discretion is to be exercised of course depends upon the particular facts of each case, which are infinitely various.  In some cases the circumstances may militate against the exercise of the discretion at the first opportunity.  But in my respectful opinion, the grounds assigned by the learned sentencing judge for declining to take into account any part of the substantial period of pre-sentence custody in this case were irrelevant.  The sentencing judge’s reliance upon a view that the applicant would probably be convicted of the other alleged offences, in respect of which his counsel had signalled his intention to plead not guilty, was inconsistent with the presumption of innocence to which the applicant was entitled; and his Honour’s reference to the potentially curative effect of an application to re-open the sentence in case that view should prove to be incorrect failed to give effect to the policy of the law that favours an end to litigation.”

39. In all of these circumstances, I consider the appropriate nominal sentence in this case is a period of 10 months imprisonment. 

40. In imposing this penalty I take into account that the respondent has served a period of approximately 255 days, being approximately eight and a-half months in custody on remand in respect of charges of trafficking in dangerous drugs.  This time is not declarable in respect of the sentence imposed in respect of the contempt.

41. Consequently, the actual sentence imposed today should be a period of the balance, which is 45 days being the equivalent of 1.5 months. 

    Costs

42. The applicant also seeks costs of an incidental to these proceedings.  The decision of the Boddice J in Scott v M[3] is relied upon as authority for such an order being appropriate. 

    [3]Unreported; Transcript of Proceedings dated 29 August 2011.

43. Submissions have been made on behalf of the respondents that it opposes costs being awarded.  Whilst the Court has a general discretion, the respondent points to the following matters as a basis for not making an order for costs: 

    (a)An order for costs would act as an additional punishment which may inhibit his rehabilitation upon ultimate release from custody;

    (b)The respondent has no means to meet an order for cost against him;

    (c)The respondent’s representation is funded by a grant of Legal Aid;

    (d)The respondent’s conduct of this proceeding has not been obstructive or litigious;

    (e)The applicant elected to deal with the contempt in the instant manner rather than having him charged with the statutory offence where costs would not have been available in the same way. 

1. I take all of these factors into account, and in all the circumstances, I consider that this matter is not appropriate for the award of costs. 

2. Accordingly, the orders of the Court are as follows:

   1.I am satisfied beyond reasonable doubt that you are in contempt of the presiding officer in that you refused to answer a question asked in the circumstances stated in the Certificate of Contempt of the applicant dated 29 July 2021.

   2.I order that you be imprisoned for a term of 45 days from today to be served wholly in a corrective services facility;  account being taken of the full period you have already been in custody since 11 March 2021.

   3.I direct that the originating application, the Certificate of Contempt, the affidavits filed herein, the outlines of submissions and the exhibits be placed in an envelope, which is to be sealed and marked “Not to be opened without an order of the Court”.

   4.I direct that a copy of these reasons once they are released, together with the full name of the respondent, be provided by the applicant’s solicitor, on a confidential basis, to the officer within the Office of Director of Public Prosecutions with the conduct of the prosecution of the respondent to enable them to be brought to the attention of any sentencing judge.