Anderson v BYF19

Relevant legal principles 42 In DKH18, White J summarised some of the authorities which reflect on the significance and importance of the offence of contempt (both in the context of the ACC Act and more broadly), at [24]-[27] as follows: [24] A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, at 117-8: The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation. This investigation is still in progress in that the inspector has not, we are told, lodged his report, and the applicant still has the opportunity to purge his contempt by giving the answers required. His continuing non-compliance with the Court's order to do so amounts to a deliberate and considered persistent defiance of the authority of the law. It cannot be condoned or tolerated. … It is to be emphasised that [the] answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation. [25] King CJ referred with approval to a statement of Mitchell J that, if witnesses were able to gain the impression that information sought by an inspector could be withheld "by the mere payment of a tariff", investigations may well prove completely ineffective, at 118. [26] A statement of Moffitt P in Thelander v Woodward [1981] 1 NSWLR 644 at 646 is to like effect: Where appropriate, the sanctions of contempt and a charge under s 21 should be pursued with vigour and expedition. Indeed unless this is done an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime. [27] In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds-Streeton J noted: [57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach. Dodds-Streeton J also noted, at [59], that a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was "the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the ACC's purposes". 43 The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: XLVII at [49] per White J; Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567 (Wood v Galea) at 571 per Hunt CJ; Von Doussa v Owens (No 3) (1982) 31 SASR 116 (Von Doussa v Owens (No 3)) at 118 per King CJ (Zelling and Wells JJ agreeing); Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 (Hannaford) at [39] per Dodds-Streeton J citing Wood v Galea at 571. A contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry is usually to be regarded as a serious contempt: XLVII at [49]; Wood v Galea at 571; Von Doussa v Owens (No 3) at 117-8 per King CJ (Zelling and Wells JJ agreeing). 44 It has been recognised, that because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: XLVII at [49] per White J citing Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford at [60]-[63], although coercion 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: XLVII at [49] per White J; Wood v Galea at 573. 45 Recently, in Anderson v GPY18 [2019] FCA 954, Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: and see for example: DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 (Allbeury) at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 (Hannaford (No 2)) at [27]. Although it must be acknowledged that the list of considerations is not exhaustive: Hannaford (No 2) at [73]. 46 Dunford J identified ten considerations in assessing the proper punishment for contempt in the following terms: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself of what he did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt. 47 And see: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25] per Merkel J; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (Kazal) at [101]-[103] per Besanko, Wigney and Bromwich JJ. 48 There are a range of penalties available to the Court in punishing for contempt: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24 at [138], set out the range of penalties as follows: (1) to commit a contemnor to prison for an indefinite period of time; (2) to impose a fine for a wilful breach of an order or undertaking; (3) to impose a daily fine; (4) to order the sequestration of the assets of a contemnor; and (5) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt. 49 In GPY18 at [29] Banks-Smith J provided an analysis of some of the sentences imposed for the offence of contempt, including for the refusal or failure to answer questions, which reflects the breadth of the sentencing options. 50 Before I proceed to consider the appropriate sentence in this matter, I turn to the submission initially made by the respondent that as this offence of contempt is a Commonwealth offence, Pt 1B of the Crimes Act 1914 (Cth), which sets out principles in relation to sentencing for such offences, applies. 51 This matter was addressed by Dodds-Stretton J in Hannaford (No 2) who, after considering relevant authorities, concluded at [69]-[70]: While the above suggests that the legislature did not intend a contempt of the ACC to be a federal offence, a determination of its status is unnecessary to the disposition of this case. First, irrespective of whether such a contempt is a federal offence, s 34B(5) of the Act empowers this court to deal with it as if it were a contempt of the Federal Court, indicating that the available dispositions are, in any event, limited to those for such a contempt. (While parole is not available for a contempt of the Federal Court, that circumstance is not relevant in this case as parole is not, in my opinion, appropriate). Secondly, if the Crimes Act applied, it would be necessary to consider the matters in s 16A of the Crimes Act. It was common ground, however, that the matters in s 16A applicable in this case largely coincided with the relevant matters identified by Dunford J in Wood v Staunton [No 5], and in the exercise of its discretion, the court is, in any event, entitled and obliged to consider any other relevant matters. 52 The applicant submitted that for the reasons advanced in Hannaford (No 2) at [51] - [70], I do not need to resolve the issue. At the hearing, the respondent agreed with that approach. 53 In any event, I note that the considerations to be taken into account on sentence for contempt, as illustrated by the non-exhaustive list referred to above, are not relevantly different from those applied in the sentencing of Commonwealth offences. Moreover, the range of sentences available, are necessarily limited by s 34B(5) of the ACC Act.

Consideration 54 There is no doubt that in the context of the statutory scheme, this offence of contempt is properly characterised as serious. The respondent's approach in refusing to answer questions undercuts the effectiveness of the scheme which authorises these compulsory examinations. Indeed, as remarked upon in previous cases, the examination processes would be hamstrung if all witnesses adopted the approach that the respondent has taken. The investigations of which the examination was a part, are of significant importance to the protection of the broader community. The serious impact on the community of illicit drug use and supply, and associated crime is uncontentious. General deterrence must necessarily play a prominent role in any such sentence. 55 These contempts were deliberate. The respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to take legal advice and to consider that advice, with the hearing being adjourned specifically for that reason on more than one occasion. The respondent was represented by counsel and a solicitor. 56 The respondent's explanation for refusing to answer these questions is a fear for his family for potential retribution. This fear was a generalised fear, as the respondent did not identify any specific threat. To the contrary, the respondent said there had been no threat made to his family. The respondent confirmed during the examination that no-one but his lawyers were aware of his attendance before the ACIC. 57 The respondent's submission on sentence was that the same fears that motivated him to decline to answer questions that would implicate the owners of the money, would also motivate him to not specify the source of those fears. However, that was not the respondent's explanation during the examination and is inconsistent with the answer actually given, that there had been no threat to his family. 58 Fear of retribution is a matter that will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43]. 59 Relevantly, in Hannaford (No. 2) at [33], Dodds-Streeton J referred to the comments of Martin CJ in Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26 (Allbeury (No 2)) at [33]: His Honour also considered that as it was inherently probable that those summoned to give evidence would claim to fear retribution if they co-operated "it would seriously inhibit the efficacy of the powers conferred by Pt 4 of the CCC Act, and the achievement of the important public policy objective underpinning the conferral of those powers, if an asserted fear of retribution were to be given significant mitigating weight when sentence is passed…" 60 And in GPY18 at [31] Banks-Smith J observed: …it can fairly be said that the exercise of powers to facilitate the investigation of matters such as those the subject of the HRED 3 determination would also be impeded if significant mitigating weight were given to an assertion of fear of retribution as a reason for refusing to provide information. Whilst I acknowledge the somewhat limited explanation for the contempt given by the respondent, it is not a matter to which I give any real weight by way of mitigation. 61 Those comments are equally apt to the circumstances of this case. 62 While the respondent accepted that the motive for his refusal to answer the questions may not mitigate the penalty, he submitted that it nonetheless reduced his moral culpability. The distinction appears to be a fine one. That is particularly so given the purpose of the examination in the context of the legislative scheme. The same reasons that negate this motive being a mitigating factor apply equally to this submission. That said, I recognise that an examinee who refuses to answer questions might be motived for other reasons (e.g. to protect others on the basis of friendship), which might be considered to be more culpable. Some examinees may simply refuse to answer any questions or participate in the examination process in any way, see for example: XLVII at [19]-[26]. Meanwhile, others may deliberately obstruct an investigation by giving false evidence: see for example, Sage v ZZ (No 2) [2015] FCA 450; (2015) 234 FCR 251 (Sage v ZZ (No 2)). I do note also that as outlined above at [32], the respondent did answer some questions, and there was no suggestion that the answers he provided were false or misleading. 63 Part of the issue for the respondent is that the explanation offered for his conduct is a general one. The fear is based on what is really seen to be inherent in being involved with criminal activity of the type being investigated. While the respondent submitted that his position was somewhat different because he had been charged and his criminal matter was being dealt with in open court, in my view that is no relevant point of distinction. Regardless of whether his criminal matter was being dealt with in open court or not, those involved with the money that was seized from him would be well aware of the fact that the respondent had been arrested. In that context there is no evidence of the respondent being approached by any person associated with the money, and no threats have been made to him or his family in relation to the same. That was so at the time of the questioning and continues to be the case. As was the case in GPY18 and Hannaford (No 2), the respondent offers no more than a generalised fear of potential retribution which in the assessment of mitigation, cannot be given any real weight. 64 The information sought by the answers the respondent refused to give, is still sought by the ACIC, and the operation is an ongoing one. 65 The applicant submitted that the respondent's contempt of the ACIC prevented it from questioning him about his knowledge of the matters set out above at [35] and from obtaining valuable criminal intelligence concerning the alleged trafficking of drugs between NSW and [REDACTED]. The applicant submitted that the answers would have permitted the ACIC to identify and disrupt serious and organised crime that was occurring in NSW by unknown persons who were the suspected source/suppliers of drugs. In support of its contention that the questions the respondent refused to answer were material to the work the ACIC was doing, the applicant relied on the affidavit of Shane Douglas Neilson (the Neilson Affidavit). 66 The respondent's submission that he was at a low level within any criminal hierarchy that the ACIC was investigating and therefore, would have been privy to very little information is of no weight. The submission is entirely speculative, based on general assertions and does not recognise that the information, if provided, could potentially lead to further inquiries. There is no basis for the respondent's assertion that his evidence at most would confirm information the ACIC already had. Having said that, I note that the money laundering offence to which the respondent pleaded guilty was the lowest level money laundering in the hierarchy of money laundering offences in the Criminal Code. It is an offence based on reasonable suspicion, as opposed to intention, knowledge or recklessness. 67 The applicant's evidence as to the utility of the information sought (particularly in the Neilson Affidavit) is also speculative. During the sentencing hearing the applicant made clear that one cannot hypothesize as to the level of assistance that may have been gained had the respondent co-operated. The applicant also explained that the purpose of this evidence is to indicate that notwithstanding the examination took place in December 2018, the answers to the six questions are still important to the ACIC. While the respondent initially submitted that the Neilson Affidavit could not satisfy the Court that the respondent's contempt had a substantial impact on the ACIC investigation, it was ultimately accepted by the respondent that the answers sought to the questions, because of their nature, are considered by ACIC to be relevant to their investigations. I accept the relevance and the potential significance of the answers sought to the six questions. 68 However, there has been some delay in this matter. Despite being arrested in possession of the money and being charged with a substantive offence at that time, it was [REDACTED] months before the respondent was summonsed to give evidence. It took a further [REDACTED] months to institute these proceedings after the contempt had been committed. It appears that there has been no particular urgency in obtaining the information. The respondent submitted that this can be contrasted to cases like DKH18 in which an indeterminate sentence was imposed, and the timeline of events leading to the application at the Federal Court was significantly shorter. The contention being, that "there must be something to be said" for the fact that the intelligence sought by the ACIC in this instance, would now be at least a year and a half old. While the applicant submitted the answers are still relevant, the length of time may well have lessened their significance, particularly in a context where those with whom the respondent dealt are well aware of the money being seized. I note that delay alone will not necessarily render the information sought by the ACIC irrelevant. For example, in Sage (No 2), the relevant examinations took place a year prior to the respondent being sentenced to an indefinite period for contempt in this Court: see Sage v ZZ [2015] FCA 417. 69 The respondent has not purged his contempt. There is evidence, which I accept, that he has had opportunities to do so. This is also relevant to the assessment of his expressed remorse. The respondent provided a written statement to the Court. The statement is not sworn, which, as was accepted by the respondent, significantly affects the weight to be attached to it. While the respondent in this statement expresses remorse for the conduct underlying his arrest on the substantive offence, in relation to this offence, he repeats that he made the decision based on fear for the safety of his family. That is not remorse, but an explanation which he puts forward for his conduct. He undertook this conduct knowing the potential consequences. He continues to refuse to purge his contempt despite knowing the significance of that factor in relation to the sentencing process. 70 I take into account that the respondent pleaded guilty to contempt, and informed the Court at an early stage of his intention to do so. That is a matter to which I give some weight as it indicates some acceptance of responsibility for his conduct, and also reflects a saving to the examiner and the Court in terms of resources. It may be said that a conviction was inevitable, but an early indication of a guilty plea still has some value: see GPY18 at [34]; Hannaford (No 2) at [82]. 71 I take into account the personal circumstances of the respondent. He is currently [REDACTED] years of age and has been in a stable relationship with his wife for over five years, having married in [REDACTED]. They have a young child, born in [REDACTED]. His wife suffers generalised anxiety disorder, although I note that there is no medical evidence to support that assertion. The respondent submitted that he plays an active role in managing her symptoms. In particular, the respondent is relied upon in relation to care for their child in circumstances where other family members or others cannot provide support. 72 The respondent submitted that his wife and child are dependent on his income. The evidence reflects that the respondent's wife works a nine day fortnight, although there is no evidence as to her earnings. The respondent is a [REDACTED], having completed his qualifications since his arrest. He is in full time employment with his employer being aware of his current situation. 73 The respondent has a past substance use history, involving alcohol, MDMA and cocaine. In [REDACTED]. Psychologist Megan Godbee opined that it now appears that this diagnosis is in partial remission although notes that the respondent would continue to benefit from counselling sessions to ensure prevention plans are in place and to provide ongoing guidance. The respondent has identified his problem regarding these substances and stated that he has decreased his use significantly particularly since his arrest regarding the substantive money offence. 74 While Megan Godbee reports that the respondent is struggling with feelings of stress being related to the ongoing Court process, the potential for a lengthy custodial sentence and his fear of revenge from people impacted by his offending, in particular how his concern as to how to protect his family, she opines that he does not have a mental health disorder. The stress the respondent refers to in his letter and to the doctors, in so far as it relates to the fear associated with going to gaol and the impact that would have on him and his family, is neither unusual nor surprising. 75 However, I note that it is well established that little, if any, weight should be given to statements made to third parties based on self-serving, and untested statements of an offender, particularly in circumstances where there is no direct evidence given by the respondent: Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323 at [817] per Bathurst CJ, Hoeben CJ at CL and Simpson J; Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] - [59] per Smart AJ and [79] per Spigelman CJ; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40] per Howie J (Levine and Hidden JJ agreeing); R v Hinchliffe [2013] NSWCCA 327 at [122] - [126] and [237] - [248] per Johnson J. This applies equally to an unsworn statement provided by an offender: DAB v R [2010] NSWCCA 275 at [21] per Simpson J. That said, the applicant did not challenge the contents of this material. 76 I note also that the respondent has a criminal history. His record includes convictions in Australia for robbery in company, drug possession and affray. In addition there is the substantive money laundering offence to which he has pleaded guilty and was recently sentenced. The respondent was sentenced for the offence contrary to s 400.9 of the Criminal Code to [REDACTED] imprisonment to be served by way of an Intensive Corrections Order (ICO) with [REDACTED] hours of community service. 77 Given the deliberate refusal to answer the questions in light of the opportunity to purge his contempt, which would mitigate his offence, coercion and deterrence must play an important feature in the sentence imposed. It necessarily follows that personal circumstances and mitigating factors specific to the respondent carry less weight: Hannaford (No 2) at [32] citing Allbeury (No 2). 78 The respondent's submission is that he should be given an alternative sentence to full time custody, for to impose imprisonment would be to "circumvent the current sentence and undermine the rehabilitation achieved" by the respondent. The submission is premised on the basis that the contempt offence is connected to the substantive offence. Ultimately the respondent recognised, in the absence of the contempt being purged, and in light of the relevant previous sentencing decisions, it is likely that some period of imprisonment would be imposed. Counsel for the respondent submitted that I ought not impose an indeterminate term of imprisonment as it is clear that the respondent will not purge his contempt. He submitted that if I was minded to sentence the respondent to imprisonment it should be for a fixed term of imprisonment (as opposed to an indeterminate term), fixed at such a length so as not to undo his ICO. The respondent submitted that given the ICO requirements imposed on the respondent a sentence allowing him to complete the community service was more appropriate. It was submitted while he had been given [REDACTED]to complete his community service, he would need [REDACTED]to do so at one day a week (which apparently is the usual rate). On that basis, the respondent submitted a term of imprisonment of less than that, for example six months, would do justice to this particular matter and still enable him to complete his ICO. 79 The applicant submitted that relevant comparable decisions were Hannaford, Sage v ZZ (No 2) and DKH18, which suggest the appropriate order would be imprisonment until further order. As noted above, the applicant provided a summary of the cases it submitted were relevant as comparable cases. 80 In any decision relating to sentencing, an important consideration is consistency with the kinds of sentences imposed in comparable cases. Like cases should be treated in like manner: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [6] per Gleeson CJ; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ. The consistency sought is consistency in the application of relevant legal principles: The Queen v Pham at [28] per French CJ, Keane and Nettle JJ citing Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [49]. For the application of this principle to the offence of contempt see: Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 (Vaysman) at [51] per Gray J; Kazal at [113] - [118] per Besanko, Wigney and Bromwich JJ. 81 A sentence of imprisonment is appropriate in this case. A consideration of the relevant sentencing principles and like cases, reflects that is so. Nothing in relation to the respondent's conduct, or his circumstances, takes this case out of the ordinary parameters for sentencing offences of this nature. 82 I have considered whether the sentence should be entirely suspended, and decided there is no proper basis to do so. As noted above, this was a deliberate choice made by the respondent. It is in a context where his fear is not based on any specific threats but is of a generalised nature, which carries little weight. There is no evidence that any relevant person knows of the examination. Importantly, given the nature of this offending, coercion and deterrence are dominant sentencing considerations which necessarily means that less weight is given to personal factors. The respondent's plea that his rehabilitation ought not to be interrupted and that this offending related to that which he has been sentenced ignores the different nature of this offence, and the fact that the contempt charges are a stand-alone offence under the ACC Act. There is one matter which appears to be significant in cases where a lesser sentence than full time custody has been imposed, and that is that the contempt has been purged or, there is no evidence provided that the respondent has any opportunity to do so: see for example, XLVII at [50] and GYP18 at [33], neither of which apply here. The respondent is no doubt aware of the significance of this consideration but has chosen not to do so. In those circumstances, there is no proper basis to suspend the sentence of imprisonment I am about to impose. 83 That said, on the evidence the respondent had made his decision not to purge, regardless of the consequences, which might make it less likely that an indeterminate sentence would coerce him to answer the questions. As noted above, there was a delay in summonsing the respondent to give evidence, which for the reasons I have given, reflects on the urgency of obtaining the information and its potential significance. Given the nature of the events and specific information sought in this case, it is a factor that must be considered when determining the appropriateness of an indefinite sentence. 84 I have taken into account all the submissions put by the applicant and respondent. 85 Having taken into account all relevant matters I sentence you to a term of imprisonment for 8 months to be released after serving 4 months on the basis that the remainder of the sentence is suspended on the basis you are of good behaviour for a period of two years. 86 I order that there be liberty to apply if the respondent choses to purge his contempt before the expiry of 4 months. If that were to occur I would reconsider the period to be served, and subject to any further submissions, would be minded to suspend the remainder of the sentence. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.