Applicant v Respondent

2 The respondent failed to appear to answer the charges of contempt against him. I ruled that the hearing of those charges should proceed in his absence, as I was satisfied that, by his conduct, he had waived his right to attend the hearing and to answer the charges.

3 Having delivered judgment, in which I found the respondent guilty of the three charges of contempt, I adjourned the matter to 10 April for submissions as to penalty. I directed that my reasons for judgment, and that a copy of the orders that I made consequent upon that judgment, be served on the defendant, by sending them to the two email addresses referred to in my judgment. I am satisfied, by the affidavit of the solicitor for the applicant, that my reasons for judgment, and a copy of the order, were duly served on the respondent. For the reasons that I stated in my judgment, I am satisfied that, on the balance of probabilities, the emails, sent to the two addresses, have come to the attention of the respondent.

4 The respondent did not appear to make submissions on his behalf on the question of penalty. For the reasons that I stated in my previous judgment, I am satisfied that the respondent, thereby, waived his right to attend the further hearing of the matter and to make submissions on his behalf in that respect. Accordingly, I heard submissions by the applicant, as to sentence, in the absence of the respondent.

5 The three contempts, of which I have found the respondent guilty, were constituted, first, by a posting by him on Facebook on 11 November 2013, secondly, by statements made by the respondent on an internet radio broadcast on 12 November 2013, and, thirdly, by seven emails sent by the respondent to officers of the County Court, including emails to the incorrect address of Judge Chettle of that court, on 18 November, 19 November, 21 December, 23 December and 30 December 2013.

6 The circumstances of the contempts, that I have found proven, are set out, in detail, in my earlier decision, and it is only necessary for me to summarise them briefly.

7 The Facebook posting, the statements by the respondent on the internet radio broadcast, and the seven emails, each were concerned with criminal proceedings before Judge Chettle in the County Court against Kerry Marks and Miroslav Oleyar, who had both been charged with offences relating to the trafficking and possession of a drug of dependence. I found that the respondent committed a contempt of court by posting the Facebook page, and by his remarks on the internet radio broadcast, in that, in each of those publications, he deliberately exhorted others to make improper contact with Judge Chettle, and with the County Court, in order to influence Judge Chettle, and the County Court, in the proceedings that were then before the court. In particular, the express purpose of the respondent, in making the Facebook post, and in his remarks on the internet radio broadcast, was to encourage others to pressure the court to desist from further proceeding with the cases against Marks and Oleyar.

8 I found that the respondent committed a contempt of court by sending each of the seven emails to the County Court and to Judge Chettle, because each of them were intended to influence, place improper pressure on, and intimidate or threaten, the judge in the performance of his duties in the cases of Marks and Oleyar.

9 Mr J Langmead QC, who appeared with Ms Forsyth for the applicant, made helpful submissions on the questions of penalty and costs. In particular, Mr Langmead referred to the objective seriousness of the conduct of the respondent, which was directed to the specific purpose of influencing the court in respect of serious criminal proceedings, which were then before it. He submitted that although the respondent had made a form of apology in his letter to the applicant's solicitors dated 15 September 2014, that apology was part of a longer document, the general thrust of which constituted a defiance of the authority of the court. He submitted further that the apology must be considered in the context of communications from the respondent before and after the apology, in all of which the respondent consistently rejected the authority of the court to take action against him in respect of the offending publications. Mr Langmead submitted that the continued defiance by the respondent of the court's authority, and his lack of evident remorse, demonstrated that it is necessary that the penalty, to be imposed on the respondent, take into account the need for specific deterrence. Further, Mr Langmead submitted that the pervasive nature of communication on the internet is such that the court, in cases such as this, should give particular weight to the principles of general deterrence.

10 The fundamental function of the law of contempt is to protect the administration of justice in our courts, by upholding and preserving the undisturbed and orderly processes of the courts according to law.[2] In particular, the law of contempt protects and preserves the capacity of the courts to dispense justice in a fair, unbiased and principled manner, unaffected by, and independent of, any inappropriate external influences or interference. In that way, the law of contempt is directed to protect the rights of litigants before the courts, and to preserve public confidence in our system of justice. The principal purposes of sentences for contempt, which are designed to achieve those ends, include specific deterrence, general deterrence and denunciation.

11 Bearing in mind those purposes, the considerations, that are relevant to the imposition of a sentence for contempt, include the objective seriousness of the particular contempt, the circumstances in which the contempt occurred, whether any harm was occasioned by the contempt, the subjective culpability of the person convicted of the contempt, the character and antecedents of the contemnor, and whether any apology has been made by the contemnor for the contempt.[3]

12 In that connection, the courts have recognised that the subjective culpability of the respondent is a factor of particular importance in the determination of the appropriate sentence to be passed on him.[4] In Director of Public Prosecutions v John Fairfax & Sons Limited & Ors,[5] Kirby P stated:

Where there has been a recognition that an item has a potential to amount to contempt, and the publisher nonetheless proceeds to publish it ...; where there is found to be reckless indifference to the effect of the publication, though it is a contempt ... or where there is irresponsible conduct amounting to gross negligence ..., the courts have not considered that a finding of guilt alone is sufficient to punish the contemnor ... . Where there is deliberate conduct, including persistent conduct without obtaining appropriate legal advice, though the contemnor is aware of what he was doing, an especially serious view will be taken of the contempt ... .[6]

13 The conduct of the respondent, which constituted the contempts of court which I have found proven, was serious. It directly related to serious criminal proceedings that were then before the County Court. The specific, and express, purpose of each of the publications made by the respondent was to intimidate and deter the County Court from proceeding with those cases. While that purpose was misconceived, and was bound to fail, nevertheless it was entirely unacceptable and reprehensible. Conduct, of the type engaged in by the respondent, was calculated to strike at one of the most critical foundations of our legal system, namely, the dispensation of justice by our courts free from improper external pressures and influences.

14 The conduct of the respondent was particularly egregious in a number of respects. The Facebook page, and the internet radio broadcast, were intended to excite public support for two persons charged with serious criminal offences, and, in particular, to encourage other persons to contact the court with a view to improperly influencing the court not to proceed with the cases against those two accused persons. Although the publications were expressed in somewhat bizarre terms, nevertheless they were effective. As a result of the Facebook post and the internet radio broadcast, some 24 emails were sent to the County Court in the ensuing month, 19 of which were dispatched in the first three days after the internet radio broadcast.

15 The internet radio broadcast was expressed in inflammatory language, that was calculated to provoke antipathy by listeners to the court's processes, and to excite them to make improper communications with the court in relation to those processes. The emails were couched in threatening and vituperative terms. Each successive email was more intemperate, abusive and threatening than its predecessor. The degree of abuse and obscene language contained in the emails was specifically directed to elevating the level of intimidation contained in those communications.

16 The conduct of the respondent could not be excused, or extenuated, as a sudden outburst of emotion on his behalf. Rather, over a period of seven weeks, he embarked on a campaign directed to the specific aim of pressuring the County Court not to proceed with the criminal cases against Marks and Oleyar. In that way, the conduct was premeditated, deliberate and calculated.

17 As I have already observed, it is of the highest importance that our courts be free to administer justice independently, objectively and impartially, and free from any improper external influences and interference. It is that principle that distinguishes, and demarcates, our courts from those in countries which do not afford to their citizens the democratic rights and freedoms enjoyed by citizens of this country. Taking into account the matters that I have referred to, the conduct of the respondent was, accordingly, particularly grave. If courts were to display any tolerance towards such conduct, our system would be readily degraded, and the rights of citizens in this country would be substantially diminished.

18 In those circumstances, I am obliged to approach the question of sentence on the basis that the contempts committed by the respondent were serious.

19 On the other hand, there are some mitigating circumstances, which I take into account. The respondent does not have any previous convictions. The conduct, in which he engaged, was destined to be unsuccessful. As I have already stated, his attempts to influence the court were misconceived. As such, the conduct, indulged in by the respondent, did not adversely affect the criminal proceedings that were before the County Court, and, in that sense, it did not cause any direct harm to the proper conduct of those cases.

20 In addition, the respondent did proffer an apology in the email that he sent to the applicant's solicitors dated 15 September 2014, and which I have summarised in paragraph 38 of my earlier decision. The conduct of the respondent, before and subsequent to that email, to some extent, undermined the sincerity of that apology. As Mr Langmead has correctly pointed out, before and after the email of 15 September, the respondent consistently defied the authority of the court to take appropriate action against him in relation to the contempts committed by him. Nevertheless, I do regard the email of the respondent as a recognition by him, at least as at September 2014, of some elements of his wrongdoing, and as an expression by him of some remorse for his conduct.

21 In considering the matter of penalty, I have some concern as to the apparent lack of rationality in some parts of the publications by the respondent, which I have found were a contempt of court by him. Parts of the internet radio broadcast, and the emails, were patently illogical, and involved a bizarre and, at times, disordered level of reasoning (or lack thereof) by the respondent. As I have noted in my previous judgment, a number of passages in those publications were substantially incoherent and unintelligible.

22 There is no evidence that the respondent suffers, or at the time of the publications suffered, from any form of mental or intellectual disorder or impairment. However, the nature, content and terms, of the publications were such that I have some real apprehension that the respondent might have been affected by such a condition at the time of those publications. In making that observation, I acknowledge the force of the point made by Mr Langmead that, nonetheless, the respondent had a sufficient sense of organisation and rationality to be able to ascertain the email addresses of the court officials, and to address the consistent theme by him that the prosecutions of Marks and Oleyar were, in some way, wrongful.

23 Ordinarily, the respondent would bear the onus of proving, on the balance of probabilities, the existence and effect of a relevant disorder or impairment, which might diminish his moral culpability for the contempts committed by him.[7] However, in a case such as this, where the respondent has not been present during sentencing submissions, I do not consider that it would be just to disregard the real possibility that the respondent's conduct might have been affected, at least to some extent, by such a disorder or impairment. Accordingly, I take that circumstance into account as a mitigating factor in favour of the respondent.[8]

24 Ultimately, the sentence, that I impose on the respondent, must be sufficient to properly express the condemnation by the court, and the community, of the conduct engaged in by the respondent, and to vindicate the integrity and independence of our system of justice. It must make plain to others that the courts will not tolerate improper attempts to influence, or intimidate, them in their role of dispensing justice in our state. Thus, the sentence must be of sufficient severity to deter others, who might be minded to engage in the same type of conduct as that indulged in by the respondent. In addition, the sentence must be sufficient to constitute a specific deterrent to the respondent, and, in particular, to impress upon him that he cannot indulge in that type of conduct with impunity. In this respect, I accept the submission by Mr Langmead that the continued defiance by the respondent of the court's processes does lend greater importance, in this case, to the factor of specific deterrence.

25 Bearing those matters in mind, and giving full weight to the mitigating factors to which I have referred, I am driven to the conclusion that the seriousness of the conduct engaged in by the respondent is such that the only appropriate sentence in this case is the imposition of a term of immediate imprisonment. I do not consider that a fine, or a suspended term of imprisonment, would be adequate to properly reflect the court's denunciation of the conduct of the respondent, or to deter the respondent, or others, from engaging in like-minded behaviour.

26 Taking into account the matters to which I have referred, I therefore sentence the respondent as follows:

(1) In respect of the contempt of court constituted by the Facebook post, I sentence the respondent to seven days' imprisonment.

(2) In respect of the contempt of court constituted by the internet radio broadcast, I sentence the respondent to 14 days' imprisonment.

(3) In respect of each of the seven emails that I found to be a contempt of court (namely, the emails of 18 November 2013, 19 December, 21 December, 23 December at 2.45 pm, 23 December at 2.46 pm, 23 December at 2.49 pm, and 30 December), I sentence the respondent to four days' imprisonment in respect of each such email.

(4) I direct that the sentence of seven days' imprisonment in respect of the Facebook post, and the sentence of 14 days' imprisonment in respect of the internet radio broadcast, be served concurrently with each other, but that those sentences, and each of the sentences in respect of the emails, be served cumulatively on each other. Thus, I sentence the respondent to a total effective sentence of 6 weeks' imprisonment.

27 In addition, I consider that this is an appropriate case in which to order that the respondent pay the applicant's costs on an indemnity basis. This case has had to be adjourned on a number of occasions, because of the lack of cooperation of the respondent, and because of his failure to attend court and answer the charges against him. The deliberate defiance by the respondent of the court's processes has resulted in a substantial increase in the costs incurred by the applicant in prosecuting the proceeding. Accordingly, I shall order that the respondent pay the applicant's costs, including any reserved costs, on an indemnity basis.

28 Subject to hearing from counsel, I therefore propose to make the following orders:

(1) Further to the order herein dated 1 April 2015, it is ordered:

(a) The respondent be committed to prison for a term of 7 days in respect of the contempt declared in paragraph 1 of that order.

(b) The respondent be committed to prison for a term of 14 days in respect of the contempt declared in paragraph 2 of that order.

(c) The respondent be committed to prison for a term of 4 days each in respect of each of the seven contempts declared in paragraph 3 of that order.

(2) It is further ordered that the sentences referred to in paragraph 1(a) and 1(b) hereof be served concurrently with each other, and that those sentences, and each of the sentences referred to in paragraph 1(c) hereof, be served cumulatively on each other, so that the respondent be committed to prison for a total effective term of 6 weeks' imprisonment.

(3) Order that the respondent pay the costs, including the reserved costs, of the applicant on an indemnity basis.

[1] R v Bonacci [2015] VSC 121.

[2] Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, 314-15 (Kirby P); Registrar v Nationwide News Limited & Ors [2004] SASC 223; (2004) 89 SASR 113, [45] (Grey J).

[3] DPP v Johnson [2002] VSC 583, [59] (Osborn J); R v The Age Co Limited & Ors [2008] VSC 305, [22] (Kyrou J); DPP v John Fairfax & Sons Limited & Ors (1987) 8 NSWLR 732, 739-742 (Kirby P), 748-9 (Mahoney JA), 750-751 (Clarke AJA); Attorney-General for New South Wales v United Telecasters (1990) 23 NSWLR 323; R v Vasiliou [2012] VSC 242, [10] (Beach J).

[4] See for example DPP v Johnson [2002] CSC 583, [59] (Osborn J); DPP v David Syme [1982] VicRp 16; [1982] VR 173, 181 (Marks J).

[6] Above, 742 (citations omitted); see also at 748 (Mahoney JA), 750 (Clarke JA).

[7] See R v Storey [1998] 1 VR 359.

[8] See for example R v Mooney (Unreported, Full Court of Supreme Court of Victoria, 21 June 1978); R v Anderson [1981] VicRp 17; [1981] VR 155; R v Verdins [2007] VSCA 102; (2007) 16 VR 269; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1,43 [177]-[178] (McClellan CJ at CL).