Anderson v DKH18

1. The Respondent be released from custody forthwith.
2. The Respondent pay the costs of the Applicant incurred of and incidental to the Originating Application of 29 June 2018 since 19 October 2018 including of the Interlocutory Application filed 8 July 2019 and of today's hearing.
3. In the event that the Respondent wishes to submit that the Court should in some form restrict publication of the reasons just given, he is by 4pm on 21 August 2019 to file and serve: (a) any affidavit to be relied upon in support of that positon; and (b) an outline of the submissions not exceeding five pages to be made in support.
4. If the Respondent does not intend to seek such an order then he is to inform my Associate of that fact by 4pm on 21 August 2019.
5. In the event that the Respondent does seek such an order, he is in the outline of submissions to indicate whether he seeks an oral hearing of that application.
6. There be liberty to the parties to apply in relation to issues concerning the publication of the judgment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 19 October 2018, acting pursuant to s 34B of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), the Court sentenced the respondent for six contempts of the Australian Crime Commission (the ACC): Anderson v DKH18 [2018] FCA 1571 (the Principal Judgment). The sentence was for imprisonment until further order. 2 The respondent's contempts consisted of his refusal to answer six questions which he was, by s 30 of the ACC Act, required to answer. By s 34A of the ACC Act, those refusals constituted contempts of the ACC. 3 An important consideration in the Court's imposition of a sentence of indefinite, rather than finite, duration was that the respondent had not purged his contempts, nor indicated any intention to do so. The sentence was intended predominantly, but not exclusively, to provide a means of coercion of the respondent to comply with his obligations at law. The respondent has now purged his contempts and, pursuant to the liberty granted to him at the time of imposition of the sentence, applies to the Court for a review of the sentence. The parties join in submitting that an order for the immediate discharge of the respondent from custody would be appropriate. 4 Earlier on 8 July 2019, the respondent had filed an interlocutory application seeking an order, in effect, that the sentence of imprisonment be converted from one of indefinite duration to a finite term. The affidavit from the respondent's solicitor provided in support of that application was relatively uninformative, stating only that the respondent had been in custody for over eight months and that he now sought a fixed term of imprisonment. 5 At the Case Management Hearing on 11 July 2019, the Court fixed 23 September 2019 as the date for the hearing of the interlocutory application, and made orders with respect to the filing of affidavits and outlines of submissions to be relied upon at that hearing. However, on 8 August 2019, the Court was informed that the respondent had appeared before the applicant on 25 July 2019 and had purged his contempts. 6 The Court was informed today by an affidavit from the applicant that the respondent did so by answering each of the six questions which he had previously refused to answer, and that he had also answered other questions asked of him to the satisfaction of the applicant. The applicant also deposes that the ACC has discharged the respondent from further compliance with the summons served on him pursuant to s 28 of the ACC Act which had led to his appearance before the applicant on 6 June 2018. In those circumstances, the parties joined in seeking a hearing before the Court earlier than the scheduled hearing on 23 September 2019. 7 Accordingly, the Court listed the matter for hearing today and invited the parties to make submissions on the question of the continuance of the sentence. Both parties made submissions. 8 It is necessary to emphasise that the continuance or otherwise of a sentence of indefinite imprisonment imposed pursuant to s 34B of the ACC Act is a matter for the Court. Such a sentence is not the equivalent of a sentence expressed to operate only until the contempt is purged. A sentence of that kind, being conditional, remains in force until the contempt comes to an end or a further order is made by the Court: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46, (1986) 161 CLR 98 at 114; Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith (No 2) [2011] WASC 26, (2011) 205 A Crim R 386 (Allbeury) at [12]. 9 An order committing a contemnor to prison until further order is not conditional and hence may come to an end only by order of the Court. The Court retains the power to determine that the contemnor should be further punished, even if he or she has purged the contempt: Allbeury at [12]. Further, the continuance or otherwise of the sentence is not a matter for the private agreement of the parties. This means that, while the attitude of the present applicant to the continuance of the respondent's imprisonment is a very pertinent matter, it is not conclusive of the position, any more than it would have been in the event that the applicant sought the continuance of the sentence beyond a period which the Court considered to be appropriate. 10 A sentence of imprisonment for contempt, especially a sentence of imprisonment of indefinite duration, serves a number of purposes. I referred to some of those purposes in the Principal Judgment. Prominent amongst those purposes is the provision of an incentive (perhaps more accurately, coercion) to contemnors to comply with their obligations at law. Other purposes include retribution and deterrence of others who may be minded to act in a similar way, as well as personal deterrence. See the authorities to which reference was made at [31] of the Principal Judgment. 11 The applicant has indicated his satisfaction that the respondent has purged his contempts in the manner which I described earlier. The Court has not been provided with detail of the precise circumstances by which the respondent came to purge his contempts. In particular, the Court has not been provided with an explanation for the respondent's apparent change of heart, nor why his change of position occurred so soon after the appearance before the Court on 11 July 2019. However, it seemed to be common ground that the respondent had, before 8 July 2019, signalled to the applicant a willingness to purge his contempts, and that that purging was in contemplation as at 8 July 2019. 12 The respondent has deposed to his regret now in not having answered the questions of the applicant previously, and I accept that as a statement of contrition. 13 The respondent has also deposed to the circumstances in which he has been held in custody since 19 October 2018. The applicant has not contested the accuracy of what the respondent has deposed, and I accept his account. In particular, I accept that for a large part of the 10 months which have elapsed since 19 October 2018, the respondent has been held in segregation and protection units or in isolation units. I accept that being held in those circumstances would have added to the burden of the imprisonment which the respondent has undergone, and I take into account as an additional matter that, throughout the period during which the respondent has been serving the sentence of imprisonment, he has not known its end point. I accept that that uncertainty would have added to the burden which the appellant suffered by reason of being imprisoned. 14 The respondent has now spent some 10 months in custody pursuant to the Court's order of 19 October 2018. That, by itself, is a significant period. 15 It is appropriate that the Court take into account and give weight to his purging of his contempts and the fact that he has now been discharged from further compliance with the summons served on him pursuant to s 28 of the ACC Act. The attitude of the applicant to the continuance of the imprisonment is also, as I have said, a very pertinent matter. 16 In summary, in the particular circumstances of this case, I am satisfied that the period of imprisonment of just on 10 months which the respondent has served is, in the light of his purging of the contempts and his discharge from further compliance with the summons served on him by the ACC, a sufficient punishment. The punitive and deterrent purposes of the sentence in this case have also been satisfied. That is so with respect to both specific and general deterrence. 17 Accordingly, I am satisfied that it is appropriate that an order be made for the release of the respondent forthwith. That will be the order of the Court. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.