Solictor-General v Siemer HC Wellington CIV-2010-404-8559

[2011] NZHC 1094

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-404-8559

BETWEEN  THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

ANDVINCENT ROSS SIEMER Respondent

Court:MacKenzie J Simon France J

Counsel:         M F Laracy and G J Robins for Applicant

T Ellis and G K Edgeler for Respondent

Judgment:      2 September 2011

SENTENCING NOTES OF THE COURT DELIVERED BY MACKENZIE J

[1]      In  our  judgment  delivered  on  4 July 2011  at  para  [70],  we  upheld  the Solicitor-General’s application to find Mr Siemer in contempt of Court.[1]    We now formally enter a finding that Mr Siemer is in contempt of Court.   We must now address the question of penalty.

[1] The Solicitor-General of New Zealand v Siemer HC Wellington CIV-2010-404-8559,

4 July 2011.

[2]      The Solicitor-General submits that the maximum penalty of three months imprisonment is appropriate given the overall seriousness of the conduct constituting the contempt, and the respondent’s history of like offending.  We record that Mr Ellis was instructed not to make submissions on sentencing.

[3]      The first question for consideration is the form of the appropriate penalty and whether  imprisonment  is,  as  the  Solicitor-General  submits,  appropriate.     The

Solicitor-General  submits  that  the  gravamen  of  Mr Siemer’s  conduct  lies  in  his

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559 2 September

2011

deliberate and public defiance of Winkelmann J’s order made in respect of a criminal trial  currently  before  the  Court.     It  is  right  that  we  should  record  that  the Solicitor-General does not assert that the breach of the order has had in fact consequences of any actual interference with a fair trial in the proceedings in which the order was made.  Counsel further submits that it is of obvious importance to the due administration of justice and public confidence in the justice system that Court orders of all types are meticulously observed. We endorse that submission.

[4]      Counsel submits that the breach was not simply deliberate but exhibits a high degree of arrogance and defiance in respect of the judge’s order and that accords with the view that we take of the matter.  The breach was comprehensive in that the material was published on the internet as we have found.   Counsel submits that Mr Siemer’s history of breaching Court orders and his determined intransigence put this case into the most serious category of its type requiring a sentence at the end of the range.

[5]      In ordinary circumstances it may well be that a sentence of imprisonment would be a disproportionate response to a breach of an order.   We are however satisfied that in this case the circumstances are such that no other response will adequately reflect the seriousness of the breach and the need for deterrence.

[6]      The Solicitor-General describes Mr Siemer as having established himself as an obdurate and persistent offender and lists a number of previous contempt proceedings in which he has been involved.  Three of those result from proceedings in which Mr Siemer was himself a party.  We attach limited weight to those actions in fixing penalty.   Proceedings in which a litigant breaches an order made against that litigant are different in nature from proceedings where there is breach of a non publication order binding on non parties.   The degree of emotion and of personal involvement in the proceedings can in some cases distort judgment to an extent that would mean that we would hesitate to attach any significant weight to those matters.

[7]      There is however an instance of a previous action in relation to this very same proceeding which is relevant. The Solicitor-General had applied for Mr Siemer to  be  committed  for  contempt  for  breach  of  a  suppression  order  made  by

Winkelmann J in this same trial.  That was resolved by Mr Siemer on the morning of the contempt hearing removing sufficient material from his website to satisfy the Solicitor-General that it was appropriate to discontinue the contempt application. However, indemnity costs were awarded.   That award was upheld in the Court of Appeal  and  in  the  Supreme  Court.    It  is  right  that  I  should  record  that  both Simon France J and I sat on the panel in the Court of Appeal which considered that

matter. The Supreme Court observed:[2]

The proposed appeal is unarguable. Mr Siemer was held to be in breach of the High Court's order for suppression and seems to have acted with deliberation in publishing the material. The costs order was permissible in terms of the High Court Rules. Although Mr Siemer has not been held to be in contempt on this occasion, he has been held to be in breach of a court order and, if he had not removed the particular portions of the websites, he would surely have been found to be in contempt. Mr Siemer elected to sign an undertaking which implicitly admitted the weakness of his position. The Solicitor-General  then  took  the  sensible  course  of  discontinuing  the contempt application as his objective had been achieved but signalled at the time that costs would still be pursued.

[2] Siemer v The Solicitor-General [2011] NZSC 4 at [4].

[8]      It is clear from those remarks that had the materials not been removed he would surely have been found to be in contempt.  So for this reason we regard the present  application  as  the  second  occasion  in  which,  in  an  essentially  similar capacity, Mr Siemer has committed a contempt.

[9]      For that reason we are satisfied that no response short of imprisonment would be appropriate in this case.  We add, though we do not attach significant weight to this fact, that the alternative remedy of a fine would be unlikely to be able to be effective given the current bankruptcy of Mr Siemer.  But it is not on that basis that we consider that imprisonment is appropriate.   We reach that conclusion for the reasons that I have given.

[10]     As to the term of imprisonment, the Solicitor-General submits that it should be the maximum term of three months.  We do not consider that a sentence at that level is required.   We take into account as a mitigating factor that Mr Siemer did

remove the judgment from his website after our judgment had been delivered.  In all

the circumstances we consider that the appropriate term of imprisonment is six weeks and that is the sentence which we impose.

[11]     Because Mr Ellis has signalled very clearly an intention to appeal against our substantive decision, and potentially against this decision, we think that it would be appropriate to stay the sentence for a period of two weeks to enable an appeal to be lodged.  Thereafter any question of a further stay would be in the hands of the Court of Appeal.

[12]     By way of addendum to our remarks as delivered in Court, we add that, if an appeal is lodged within that two week period, the stay will continue until further order of the Court of Appeal.

“A D MacKenzie J”  “Simon France J”

Solicitors:         Crown Law Office, Wellington for Applicant

T Ellis, Barrister, Wellington, for Respondent.