Australian Crime Commission v DTO21 [2022] FCA 288 | Case summary

CONSIDERATION 38 The respondent's contempt was deliberate. He was informed by the examiner of the consequences of a refusal to answer. He was provided with appropriate opportunities to answer. He was provided with an opportunity to obtain advice and he received advice. The respondent was aware of the consequences of his refusal to answer the questions. In these ways, his contempt is serious. 39 The respondent emphasised the fact that he answered various questions asked of him by the examiner, including questions relating to his employment, his current and previous car, payment of his rent, his email addresses and his association with a particular person, Mr X. The respondent answered many of the questions. Of course, this is saying little more than that he acted in accordance with his legal obligation to answer the questions. He also retrieved his mobile phone over the lunch adjournment and produced it to the ACIC. He did not refuse to participate in the process at all - see, for comparison: XLVII at [19] to [26]. However, it should also be recognised that the respondent was not entirely forthcoming in relation to the questions which he did not refuse to answer. For example, the transcript of the respondent's examination (henceforth "T") records the following answers were given when the respondent was asked how he communicated with Mr X (at T25.25): DTO21: I just, you know catch up with him every now and again, he drinks at the pub and things like that. COUNSEL ASSISTING: Do you have his phone number? DTO21: No. COUNSEL ASSISTING: Well then how do you arrange to meet at the pub? DTO21: You just sort of like catch up with people, you know. Like I don't know, how do I, we just, who do I, COUNSEL ASSISTING: [DTO21], you realise that if you lie here at the Commission you, DTO21: Yeah, but I'm just trying, COUNSEL ASSISTING: You could be prosecuted? DTO21: I'm just trying to be very careful in choosing my words. Right. I think at one stage I spoke to him with a burner phone. 40 The respondent was then asked where he got the burner phone that he provided to Mr X (T27.06), and the following exchange occurred: DTO21: I can't recall. COUNSEL ASSISTING: You don't recall where you got the phone? DTO21: No. COUNSEL ASSISTING: Are you sure about that? DTO21: I can't remember. COUNSEL ASSISTING: Well where do you usually get your phones from? DTO21: Where I usually get them? COUNSEL ASSISTING: Yeah. Where do you get burner phones from? DTO21: The burner phone, I got it off, I think that at that time, I'm having trouble, look, I'm not sure. 41 When asked what a burner phone was, the respondent advised that it was a phone that is "not connected to your name", and that he gave the burner phone to Mr X because Mr X had "a chequered past" and "he's probably conscientious [sic] of people listening to his calls" (T28-29). 42 The respondent was asked a number of times how many burner phones he had given to Mr X, and he responded that he could not recall (T31.19). The examination was adjourned so that the respondent could obtain advice from his legal representative, Mr O'Brien. When the examination resumed the following exchange took place (at T35.25): DTO21: I think I gave it to him in just after, somewhere between March and April. COUNSEL ASSISTING: Okay. And what was the purpose of you giving him a burner phone? DTO21: Just to talk with him. COUNSEL ASSISTING: About what? DTO21: Just whatever, just talk. Catch up, that type of thing, that's it. COUNSEL ASSISTING: But why do you need a burner phone, why don't you just get him a normal phone? DTO21: Oh well, I don't know, why, because, just because I didn't want the, I didn't him calling my telephone. COUNSEL ASSISTING: Why not? DTO21: Because he's a dangerous person. COUNSEL ASSISTING: Well if he's a dangerous person why are you providing him with burner phones and [redacted]? DTO21: Because I was, I'm a little bit, I just like the way [Mr X] always talked to me, he showed me time, that's all. You know, he was, I was fascinated by him. COUNSEL ASSISTING: [DTO21], it doesn't make any sense what you're actually telling me now, DTO21: Yeah. 43 After some further questioning regarding why he communicated with Mr X using a burner phone, the respondent was again asked where he obtained the burner phone, and, notwithstanding his earlier evidence, he identified the location from which he acquired the phone. 44 The respondent submitted that there was insufficient evidence to conclude that the contempt had significant consequences to the inquiry. The respondent noted that he was summonsed before the ACIC in the weeks following the public arrest of numerous people brought undone by the Australian Federal Police ("AFP") monitoring the ANOM platform. The respondent submitted that, by the time of the examination, it was public knowledge that the Google ANOM phones were released by the AFP and US Federal Bureau of Investigations ("FBI") so that they could extensively monitor all communications through the platform. Location data was, according to the respondent, also obtained. The operation was referred to as "Operation Ironside". The respondent submitted that it should be concluded that the main reason why the respondent was brought to the ACIC was "to provide further intelligence upon attributing the possession of Google ANOM phones to persons of interest". According to the respondent, the investigators were in possession of all the messages and location data attached to the Google ANOM phones of interest, presumably with the consequence that the ACIC was only confirming information already in its possession. The respondent submitted that it was implausible to accept that the content of the messages and the location did not provide investigators with either proof or a suspicion as to who was using a particular service. 45 The applicant relied on two affidavits of Mr Halls, an employee of the ACIC in the position of National Manager Examinations. The respondent put the applicant on notice several days before the hearing that he wanted to cross-examine Mr Halls. The applicant opposed any cross-examination whether or not leave was required. Ms Maharaj SC's submissions opposing cross-examination, whether or not leave was required, were: (1) first, that she was unaware of cross-examination having occurred before in a situation such as the present; (2) secondly, that cross-examination is not permitted as a matter of course because "the current regime has been put in place to avoid the long-winded conventional criminal processes which permits cross-examination of witnesses … in circumstances like this"; (3) thirdly, that the foreshadowed cross-examination could not be relevant to penalty; (4) fourthly, that it was likely that any evidence which would be adduced would be the subject of a claim for public interest immunity. 46 None of these provide sufficient reason for refusing to permit cross-examination: (1) As to the first submission, the question is not whether something has happened before, but whether the respondent has a right, or should be permitted to, cross-examine, with or without leave. (2) As to the second submission, whilst the statutory regime is intended to implement a regime which is "quicker than the conventional prosecution process" ( see [31] above), nothing about the regime suggests that cross-examination by the respondent should be denied, whether at the hearing of a charge or in relation to evidence adduced by the prosecution as relevant in sentencing. That is particularly so when the cross-examination is anticipated to take 10 minutes. Ms Maharaj SC referred to rule 42.15 of the Federal Court Rules 2011 (Cth) which permits a person charged with contempt to apply for an order "for the cross-examination of the deponents to the affidavits to be relied on by the person making the charge". As Ms Maharaj SC acknowledged, this provision applies to the hearing of the charge. It does not imply that cross-examination is not permitted at a sentencing hearing. It simply does not address that question. It should also be noted that Part 42 of the Rules is concerned with contempt generally and says nothing specifically about the contempt regime established by the ACC Act. (3) As to the third submission, the ACIC obviously considers that Mr Halls' evidence is relevant or it would not have sought to rely on the two affidavits which it filed. It is odd then to argue that cross-examination should be refused on the basis that nothing of relevance could come from cross-examination. The topics for cross-examination had been identified to the ACIC. The topics were relevant to the question of whether the information the ACIC sought was information which the ACIC had already obtained or was as important to the Special ACIC Operation as Mr Halls had suggested. The importance of the information to the investigation has been treated as relevant in sentencing for contempt - see: BYF19 at [83]; see also the third consideration of those identified by Dunford J in Staunton (No 5) referred to at [33] above. Mr Halls' evidence is relevant to the seriousness of the offence. Further, because coercion of the contemnor is a consideration in sentencing, the importance of the evidence to the Special ACIC Operation is also relevant. (4) As to the fourth submission, the fact that a public interest immunity claim might be made is not a sound basis for refusing to allow any cross-examination unless it could be established that no relevant evidence could be adduced other than evidence which would be the subject of such a claim. That was not the case here. 47 Neither party referred to s 173 of the Evidence Act 1995 (Cth) or rule 29.09 of the Rules. Section 173(1) provides that an affidavit must be served a reasonable time before the hearing of proceedings. Section 173(2) of the Evidence Act provides that "[t]he party who tenders the affidavit or statement must, if another party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so". 48 Rule 29.09 of the Rules provides: 29.09 Cross-examination of deponent (1) A party may give notice requiring a person making an affidavit to attend for cross-examination. (2) The notice under subrule (1) must be given to the party filing the affidavit or proposing to use it. (3) If a person required to attend under subrule (1) fails to do so, the person's affidavit may not be used. Note: The Court may dispense with compliance with the Rules - see rule 1.34. (4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person. 49 Both of these provisions imply that a party who wishes to do so would generally be permitted to cross-examine. Nevertheless, the Court controls its own procedures and a party may not be permitted to cross-examine, particularly in the interlocutory context - see, for example: Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 (Stewart J). The considerations which often militate in favour of refusing leave to cross-examine in that context were not present here. Considerations of fairness indicated that the respondent should not be denied the opportunity to cross-examine. 50 In the result, the Court required the applicant to call Mr Halls if the applicant wished to rely on Mr Halls' two affidavits. The Court indicated that any public interest immunity claim could and should be made if and when necessary. Mr Halls was called and he was cross-examined. 51 Mr Halls' first affidavit, some of which was in the nature of submissions rather than evidence, indicated the following: The (HRED) Special ACIC Operation was divided into specific projects. "Project Baystone" was established to monitor assessed high risk drug markets for methylamphetamine, cocaine, methylenedioxymethamphetamine (MDMA) and heroin and resolve intelligence gaps in relation to those markets. Project Baystone was also intended to produce intelligence and research products on market trends, use coercive powers to support relevant partner agency activity, and to identify and assess the highest risk participants in the respective markets: first affidavit at [8]. The then Head of the Special ACIC Operation, Mr Shane Neilson, applied on 11 June 2021 to Examiner Lusty for a summons to be issued to the respondent for the purpose of the Special ACIC Operation and Project Baystone: first affidavit at [9]. Mr Neilson sought to have the respondent examined on the basis that he had various significant links and close associations with members of serious and organised crime (SOC) groups involved in the importation and trafficking of very large amounts of border controlled drugs, including links to a [redacted] drug trafficking organisation: first affidavit at [11]. Mr Halls believed that the respondent's role was that [redacted]: first affidavit at [11]. By virtue of its intelligence holdings and investigations, the ACIC was aware that there is cross-jurisdictional trafficking of methylamphetamine, cocaine and precursor chemicals and related proceeds of crime, and that this activity is undertaken by sophisticated transnational and domestic organised crime groups. The ACIC assesses that methylamphetamine poses Australia's highest serious and organised crime risk. The ACIC's efforts in this regard remain a very high priority for the agency under several national and multi-state Projects, including Project Baystone. The large-scale illicit domestic manufacture of methylamphetamine and other illicit drugs is also a high priority for the ACIC and again Project Baystone forms a significant part of the ACIC's response to this issue: first affidavit at [13]. Mr Halls considered that, at the time the summons was applied for, the information sought from the respondent would assist the ACIC to: (a) collect and analyse criminal information and intelligence relating to serious and organised crime and to disseminate that intelligence as provided under the ACC Act; (b) identify the nature of the criminal activities and any additional (at that time and presently unknown) persons who were suspected of being involved; (c) proactively take steps to understand the broader drug trafficking activities in which the respondent and his associates were suspected of being involved; (d) obtain details of methods of secure communication adopted by the drug trafficking organisations and other measures they employ to frustrate and avoid law enforcement scrutiny of their activities; (e) obtain details of cross-state activity in which the drug trafficking organisations are involved and how and by whom it is coordinated; (f) in conjunction with partner agencies, take measures to disrupt any further activities of identified organised crime networks that were alleged to be involved in the transnational and interstate drug trafficking activities: first affidavit at [14]. Mr Halls considered that the respondent's contempt of the ACIC prevented the ACIC from obtaining answers from him about his knowledge of illicit drug trafficking matters, particularly as they relate to the members and locations of the transnational and domestic crime groups whose activities he facilitated, successful and planned future importations of border controlled drugs and the modus operandi employed by himself and his criminal associates. The information sought from the respondent is likely to provide the ACIC with valuable insights into the supply and distribution of illicit drugs, the involvement and identification of particular individuals in organised crime, as well as methodologies that are being employed by members of the relevant criminal groups to avoid law enforcement scrutiny of their activities: first affidavit at [15]. Notwithstanding the passage of time since the examination of the respondent held on 17 June 2021, the respondent is expected to be in possession of information which is as relevant now to the ACIC's current and ongoing investigation as at the time of the examination. The answers to the questions which the respondent refused to answer in the examination, for which he has pleaded guilty to contempt of the ACIC, continue to be material to the work of the ACIC: first affidavit at [16]. Mr Halls considered that responses to the questions asked at the examination about the Google phone, as well as other questions relevant to the ACIC's ongoing investigation, would be of significant value to the ACIC about drug related criminal activity: first affidavit at [17]. 52 Mr Halls' second affidavit was filed after the respondent filed his written submissions and to respond to certain matters raised in those submissions. Mr Halls confirmed that Operation Ironside was an operation run by the AFP and FBI and was not an ACIC operation; and that the ACIC was not privy to all of the information collected pursuant to that operation: second affidavit at [9]. I accept this evidence. 53 Mr Halls' second affidavit also explained that the primary purpose of the examination was to obtain knowledge of the drug-related activity of the respondent. The ACIC wanted to examine the respondent because it considered he had significant links and close associations with members of serious and organised crime (SOC) groups involved in the importation and trafficking of large amounts of border controlled drugs, including links to a [redacted] drug trafficking organisation: second affidavit at [6]. Mr Halls stated that the ACIC did not seek to have the respondent examined after Operation Ironside for the primary purpose of attributing to him the possession of ANOM devices: second affidavit at [7]. The respondent submitted that the Court should not accept this evidence in light of the way in which the examination proceeded, in particular the questions which were asked. Mr Halls was not directly challenged in cross-examination with respect to this evidence. It is supported by his first affidavit, in particular the matters referred to at [11]. I accept Mr Halls' evidence about the primary purpose of the examination. 54 In his second affidavit, Mr Halls confirmed that he was advised that the use of ANOM devices was not the focus of the questions intended to be posed to the respondent, however because the respondent failed to answer questions about the devices, further questions were not asked as the examination was adjourned: at [11]. He confirmed that the ACIC intended to examine the respondent in relation to his collaboration with and knowledge of domestic and international drug trafficking organisations and that the questions that the respondent claims were of little import were in fact essential preliminaries to unlocking the full extent of the witness's knowledge of high-risk criminals and their modus operandi: second affidavit at [13]. Mr Halls was not directly challenged on these matters. It would be particularly serious to depose to such matters if they were untrue. I accept what Mr Halls says. 55 I do not accept the respondent's submission that the ACIC was in possession of all the messages and location data (assuming location data was available, which Mr Halls was not able to confirm) attached to the Google ANOM phones of interest or that the identity and criminal enterprise of each of the people with whom the respondent associated was known to the ACIC. I do not conclude that the respondent's refusal to answer questions was of little significance or consequence to the Special ACIC Operation. The consequences of the respondent's contempt to the inquiry depends on the answers to the questions which the respondent refused to answer and on what further questions and answers might thereafter have flowed. 56 It was submitted for the respondent that he should not be punished for questions he was not asked. It was submitted that the respondent was not asked questions about his criminal activity (if any) and that the only questions he refused to answer were those the subject of the contempt charges. It is to be accepted that the respondent is to be punished only for the contempt. However, assessing the evidence as a whole, I am satisfied that the consequences of the contempt are that further questions, which the ACIC wanted to ask, were not asked because it first needed answers to questions which the respondent refused to answer. I reject the respondent's submission to the effect that the Court should conclude that the contempt did not have significant consequences to the examination or the Special ACIC Operation. 57 The respondent submitted that the failure to exercise the power to detain the respondent immediately, and the delay in bringing proceedings for contempt more generally, demonstrated that the information the ACIC was seeking was not critical to the Special ACIC Operation. The contempt occurred on 17 June 2021, the examiner issued the certificate under s 34B(3) of the ACC Act on 5 October 2021 The certificate was served on 14 October 2021 and these proceedings were commenced on 22 October 2021, approximately 4 months after the contempt. 58 In the absence of knowing what information would have been provided if the questions had been answered, and what further questioning might then have occurred, it is difficult to assess directly what importance or significance the information the respondent refused to give might have had. 59 The respondent's submission raises the issue whether a lack of importance (or perceived importance) of the information can be inferred by reason of the length of time which elapsed before the ACIC commenced these proceedings. In my view, it cannot in the circumstances of this case. A distinction must be drawn between the urgency of obtaining the information and the importance (or perceived importance) of the information, even if the one might inform the other. 60 The fact that the information may not have been required urgently does not necessarily translate into the information not being important. Important information might be required urgently, for example, in the context of an imminent threat and such information is likely also to be important. But important information is not always required urgently. The ACIC has power to detain and can bring people before the Court urgently where that is required. It might be expected to use those powers in urgent cases, but not in every case. In the circumstances of this case: (1) It is appropriate to infer from the length of time the ACIC took to commence proceedings that the ACIC did not consider that the information needed to be obtained urgently. That inference is appropriate because the evidence ACIC relied on did not suggest any such urgency. Rather, the ACIC explained that it did not immediately detain the respondent because it considered that there was little risk that the respondent would not appear before the Court in relation to the contempt. (2) I would not infer from the fact that the respondent was not immediately detained, or from the time taken to commence these proceedings, that the information the ACIC sought from the respondent was not important or that it does not remain significant to the Special ACIC Operation. As noted, Mr Halls' evidence was that the ACIC still wanted answers to questions about the respondent's "knowledge of illicit drug trafficking matters, particularly as they relate to the members and locations of the transnational and domestic SOC groups whose activities he facilitated, successful and planned future importations of border controlled drugs and the modus operandi employed by himself and his criminal associates". It did not obtain that information because it did not secure answers to preliminary questions. 61 The delay in the present case was not such as to lead to the inference that the information was not important or that it was not perceived to be important. A conclusion that the information is likely to be important is, to some extent, supported by the next matter raised by the respondent, namely that he refused to answer the questions for fear of retribution. 62 The respondent's stated reason for refusing to answer was that he feared harm from those whom he might identify or from the associates of those he might identify. The respondent's fear was expressed in general terms. There is no evidence of any specific threat and the evidence does not enable any reliable assessment of whether the fear is well founded. The examination was held in private and only ACIC staff were present. There are, of course, risks which are inherent in being involved in criminal activity of the type being investigated: CRA20 at [46]; BYF19 at [63]. This factor is not ordinarily given significant weight where the fear is disputed and the evidence does not enable a reliable assessment of whether the fear is well founded: R v Drever [2010] SASCFC 27 at [24]; Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26, (2011) 205 A Crim R 386 at [42]-[43]; Hannaford v HH (No 2) [2012] FCA 560, (2012) 203 FCR 501 at [33]; BYF19 at [58]-[61]; GPY18 at [31]; CRA20 at [45]. Notwithstanding, I accept that the reason for refusing to answer was that the respondent was afraid of possible repercussions to him and his family. This necessarily has a bearing on moral culpability. He did not, for example, obdurately refuse to answer without any reason or for the sole purpose of flouting authority. 63 The respondent also relied on his early plea of guilty. The guilty plea was little more than a recognition of the inevitable outcome. In the context of this particular case, it produced little significant saving of time or cost and is unlikely to have alleviated any inconvenience to witnesses, it being unlikely that any witness would have been called. Nevertheless, even if a conviction was as good as inevitable, a guilty plea has some value: CRA20 at [49]; GPY18 at [34]; Hannaford (No 2) at [82]. I have taken the respondent's guilty plea into account, as well as the fact that it was made at the first opportunity. I have also taken into account the manner in which the respondent refused to answer questions which, in addition to being polite and explaining that his reason for refusing to answer was that he was afraid, conveyed an element of contrition. 64 The respondent relied on reports from Dr [redacted], Dr [redacted] and Dr [redacted]. Dr [redacted] diagnosed the respondent as suffering ADHD and "a significant anxiety diathesis, with features of obsessionality and Generalised Anxiety Disorder". Dr [redacted] (who was supplied with Dr [redacted] report and also with letters from Dr [redacted] (psychiatrist) and Dr [redacted] (orthopaedic surgeon)) considered that only a diagnosis of ADHD was appropriate. He stated: The diagnosis of attention deficit hyperactivity disorder is made from the history of symptoms amounting to that condition reported by [DTO21], and the diagnosis made by Dr [redacted] and by Dr [redacted]. [DTO21] reported a pattern of hyperactivity and impulsivity, and impaired ability to concentrate and focus, beginning in childhood and alleviated by treatment with psychostimulant medication. The further diagnosis of an anxiety disorder was considered, from [DTO21's] account of anxiety symptoms associated with the proceedings. However, his symptoms were assessed to be proportional to his circumstances and did not reach the threshold of severity to be considered clinically significant. [DTO21] reported that his involvement stemmed from his long term friendships with people who he understood to be involved in criminal activity, and his assumption that the people that he knew were associated with more frightening criminals. He reported that his refusal to answer questions was based on a calculated decision at selfpreservation, rather than an irrational fear arising from an anxiety disorder. [DTO21] was thought to have good prospects for rehabilitation, because of his age, his attachment to his wife and children and the history of regular employment. There was no history of a pattern of antisocial behaviour in adult life or of a current substance use disorder, which are the main predictors of re-offending. [DTO21] accepted that he had broken the law by not answering the questions, but that he decided to do so to avoid the risk of reprisal if it became known that he had provided information. With regards the effect of a custodial sentence, I concur with the remarks of Dr [redacted], that he would be unlikely to have access to his usually ADHD medication in custody, and would be likely to experience withdrawal symptoms and an exacerbation of symptoms of his condition. Those symptoms would obviously be worse in the confines of a shared cell, in the tense social interactions of prison and in his participation in rehabilitation and recreational activities in custody. 65 Dr [redacted] stated: [DTO21's] ADHD diagnosis would mean that being confined and being unable to express his energy and hyperactivity would be highly stressful to him. He would feel a continual sense of agitation, which would likely cause his anxiety to increase and eventually lead to depression. It may also, more worryingly, lead him to develop an irritable mood, and therefore potentially increase the risk of interpersonal tension between himself, other inmates and his custodians. [DTO21's] diagnosis of obsessionality would mean that the loss of control of his environment would also be highly stressful to him. He has his own system of doing things and pursuing routines in his life, with a degree of inflexibility and rigidity, which would make it difficult for him to adjust to the loss of personal control in a custodial environment. [DTO21's] diagnosis of Generalised Anxiety Disorder would mean that in a custodial environment his anxiety would escalate for all the above reasons, and may lead to Panic Disorder proportions. In addition, as dexamphetamine sulphate is a highly controlled substance, within a custodial environment it would be difficult to continue to administer this in a safe fashion, without an inordinate amount of care and supervision. My understanding is that in most situations, the prison medical team may simply choose to cease such medications, with unfortunate consequences of an exacerbation of anxiety, impulsivity, irritability and a depressed mood. 66 The respondent also relied on a letter from Dr [redacted] which recorded that the respondent [redacted]. The letter confirmed that the respondent would need to be [redacted]. 67 I do not accept that the respondent is unlikely to be given medication which he reasonably requires or that he is unlikely to receive adequate medical care for his physical or psychological problems. The assumptions to that effect, expressed in the reports of Dr [redacted] and Dr [redacted], were not established by evidence and the assumptions are inconsistent with obligations on prison authorities. 68 I accept that a custodial sentence is likely to have some negative impact on the respondent's health and that imprisonment will be a greater burden on the offender compared to a person without his conditions, both mental and physical. I give this some, but not significant, weight, particularly in light of my conclusion that he is likely to receive appropriate care. In R v Smith (1987) 44 SASR 587 at 589, King CJ (with whom Cox and O'Loughlin JJ agreed) stated: The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. 69 The respondent relied on a report dated 9 April 2020 from Dr Ellis (a forensic psychiatrist) to Legal Aid NSW. Dr Ellis was asked a series of general questions. It is sufficient to give the first two by way of example (typographical errors in original): 1. What effect or impact, if any, has the current COVID-19 pandemic had or would reasonably be expected to have on the mental health of people in custody/detention? 2. In your opinion are there some groups in custody/detention which may be affected more than others with regard to their mental health, and in what way? Is there a more vulnerable group and if so who? Please elaborate on what steps should be implemented to address these issues? Would some client's have difficulties complying with directions regarding appropriate physical and social distancing requirements, like an inmate with an intellectually disability? 70 The report does not address the particular circumstances of the respondent. The facts and assumptions on which the report is based are well out of date. At the time of writing the report: (a) neither the Delta nor Omicron variants of COVID-19 were known to exist; (b) there was no Government approved COVID-19 vaccine program; and (c) there was no approved Rapid Antigen Testing. The report is of little assistance. Much has happened since 9 April 2020. I accept that the existence of the pandemic is relevant to the assessment of an appropriate sentence in that it is a circumstance which bears upon what the respondent would experience in a custodial setting. The direct impact of measures taken within the NSW prison system on the respondent is difficult to assess. The evidence indicates that new inmates can expect quarantining on entering the system. Inmates can expect quarantining on developing a range of symptoms. Inmates can expect regular testing. In person visits have resumed, although video visits are "strongly encouraged". 71 I accept that it is likely that measures taken in response to the pandemic are likely to have a negative impact and make the custodial experience worse, and more isolating, than it otherwise would have been. I take that into account. 72 The respondent is [redacted] years of age, married [redacted] and employed in an [redacted] position at [redacted]. The respondent's wife works as an [redacted] at a [redacted]. Their income allows them to rent a unit at the expense of [redacted] per week. [redacted]. The respondent has a limited criminal record. 73 The respondent submitted that Mr Halls' belief that the respondent's "role is that of a facilitator of importations of border controlled drugs" should be given no weight upon the issue of the respondent's character, in the absence of any evidence. I do not attach any weight to Mr Halls' belief on the question of the respondent's character. 74 The respondent submitted that it may safely be concluded that there is no risk of the offender re-offending, such that considerations of specific deterrence are diminished. The difficulty with this submission is that the respondent has so far refused to purge his contempt. 75 The respondent submitted that any custodial sentence of imprisonment should be immediately suspended upon the respondent entering a recognizance to be of good behaviour. This submission was based primarily on the following matters: the extent to which the respondent did cooperate with the examiner; the asserted limited extent of the failure to disclose information; the respondent's background, including his good character and his mental health issues; the applicant's delay and COVID-19 considerations. I have dealt with each of these matters earlier. Little importance can be given to the asserted limited extent of the failure to disclose information because one does not know what further questions would have been asked if the questions had been answered. 76 The respondent relied upon R v Giuseppe Falanga and Carmelo Falanga (unreported, District Court of South Australia, 6 March 2008) and R v Dial (unreported, District Court of South Australia, 30 April 2009) as comparative cases. Both of those decisions involved the prosecution of criminal charges under the ACC Act in which the coercive element of sentencing for contempt of the ACIC was not a feature. Both decisions involved the contemnors refusing to answer questions pending the outcome of applications to the Federal Court which challenged the validity of the power to conduct examinations, and that factor appears to have been regarded as being of some significance. 77 In the present case, it would be an inappropriate response to impose a sentence which was immediately suspended. Having considered the other penalties which are available, and concluded that a custodial sentence is appropriate, the question is whether the sentence should be indeterminate or fixed and, if fixed, whether it should be partly suspended. 78 Fixed sentences have been imposed in three recent cases: GPY18; BYF19 and CRA20. Indeterminate sentences have been imposed in three recent cases: Sage v ZZ (No 2) [2015] FCA 450; DKH18; Anderson v EVA20 [2021] FCA 457. Plainly, each case turns on its own facts such that comparisons can be difficult to make. In CRA20 at [59], Abraham J observed in relation to consistency in sentencing: 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]; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 (The Queen v Pham) at [28]. The consistency sought is consistency in the application of relevant legal principles: The Queen v Pham at [28] 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 at [51]; Kazal at [113] - [118]. 79 In GPY18, the respondent was in detention on remand with respect to a large number of charges (for both State and Commonwealth offences) and remained on remand at the time of sentencing: at [5]. The charges included possession of methylamphetamine, dealing with proceeds of crime with a value exceeding $1,000,000 and possession of firearms or ammunition. He had pleaded guilty to some of those charges but had not yet been sentenced. A lengthy term of imprisonment on other charges was inevitable. In these circumstances, the examiner did not ask for an indeterminate sentence and one was not imposed: at [28]. 80 In CRA20, the respondent had been discharged by the applicant from further compliance with the summons and therefore had no extant legal obligation under the summons. Abraham J referred to the observation of Martin CJ in Allbeury at [12] that "[t]he purpose of making such orders is to endeavour to coerce the contemnor into purging their contempt by complying with his or her legal obligations". Her Honour stated at [56]: … It is not a sufficient answer for the applicant to submit that it still seeks the answers to the questions and would issue a summons in similar terms in relation to a similar Determination. That does not create an extant obligation. It would be inappropriate in those circumstances to order indeterminate detention. 81 In the present case, the respondent has not been discharged from compliance with the summons. As noted earlier, the ACIC wants the respondent to be further examined, including by answering the questions already put to him and which he has refused to answer. It wishes to progress other matters material to the Special ACIC Operation. The ACIC has given evidence, which I accept, that prolonged delay in obtaining answers from the respondent has adversely impacted the ACIC's ability to obtain and analyse intelligence relevant to the Special ACIC Operation and will continue to do so. 82 In BYF19, one consideration taken into account by Abraham J in relation to whether a fixed sentence should be imposed, rather than an indeterminate sentence, was the conclusion that the importance of the information was likely to have diminished because of the time which had elapsed since the refusal to answer the questions: at [68]. A part of the context for that conclusion was that the information was sought in relation to people who would already have become aware that money had been seized. 83 In addition to considering that the importance of the information had diminished, Abraham J also: (a) drew an inference from the delay that the information was not required urgently; and (b) took into account the fact that the respondent had made it clear that he would not purge his contempt, regardless of the consequences. Her Honour stated at [83]: [83] …. [O]n 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 As to importance of information and urgency, as previously mentioned, whilst I would draw the inference in the present case that the information was not required urgently, I would not draw the inference that the passage of time has made the information any less significant. 85 As to the respondent's stated position that he will not purge his contempt, to borrow from the language of Hunt CJ in Wood v Galea (1995) 79 A Crim R 567 at 574, I am not satisfied that the respondent's "obduracy is of such a nature that it is unlikely that he will change his mind". And to borrow from the language of Dunford J in Staunton, "it is early days yet and although the defendant says he will not change his attitude, I am by no means satisfied his resolve will not weaken, particularly after some time in prison". 86 In Staunton, Dunford J rejected the submission that the Court should "be satisfied that coercion is not going to be effective and, accordingly, impose a fixed determinate sentence for punitive purposes rather than an indeterminate one for coercive purposes": at [26]. This argument had been raised by reference to the decision of Abadee J in Independent Commission Against Corruption v Cornwall (No 1) (1993) 116 ALR 97. Abadee J had accepted that a realistic assessment of the situation before him was that Ms Cornwall would adhere to her stated intention of refusing to answer and that a committal for an indefinite duration would not achieve its object of compelling her to answer: Staunton at [25]. 87 In rejecting the submission that he should follow the approach of Abadee J, Dunford J noted that "it is essential that a clear message be sent to [witnesses summonsed to give evidence who refuse to provide that evidence] of their obligation to answer questions and that such obligation cannot be avoided by mere payment of a tariff by way of imprisonment or fine": at [27]. His Honour stated at [28]: The Court's primary object at this stage is to persuade the defendant to comply with his legal obligation and answer questions. 88 Dunford J continued at [29]-[30]: Whilst, with respect, not necessarily agreeing with everything said by Abadee J in Cornwall's case, that case is in my view further distinguishable from the present in that Ms Cornwall was refusing to reveal sources of information and there was no suggestion that she may herself have been involved in criminal activities of any kind or that she had direct personal knowledge of such activities by others, whereas the nature of the questions so far asked in the present case suggests that the defendant may be alleged to himself have been involved in corrupt or other criminal conduct. For these reasons I regard a fixed order for a term of imprisonment or other penalty is inappropriate at this stage and I am satisfied the defendant should be committed to prison until further order. Depending on his future course of conduct, the time will come when it will be appropriate to order his discharge or to fix a determinate term or other penalty. He is, in a sense, his own gaoler; he can secure his release at any time by purging his contempt and answering all questions asked or to be asked of him by the Commissioner. 89 I am not satisfied that there is no chance that the respondent will purge his contempt. I think it less likely that the respondent will purge his contempt if a fixed sentence is imposed rather than an indeterminate sentence. I think it unlikely that the respondent would purge his contempt if a fixed but wholly and immediately suspended sentence is imposed, as was urged on his behalf. 90 The applicant submitted that having regard, in particular, to the need to coerce the respondent into purging his contempt, as well as the purposes of retribution for the contempt and the deterrence of others, an immediate and indefinite custodial sentence was appropriate in the circumstances. That submission should be accepted. As noted earlier, the importance of the coercive purpose underlying punishment for contempt means that an order for imprisonment for an indefinite period will often be appropriate - see: [37] above. The respondent has not purged his contempt. The summons requiring his examination has not been discharged and the ACIC still wants to obtain answers to the questions giving rise to the contempt for the purposes of an operation which is continuing. The examination is part of an investigation of significant importance conducted for the protection of the community. Illicit drug use and supply has serious adverse impacts on the community. Parliament has imposed an obligation on persons properly summonsed to an examination to answer questions at the examination and to do so truthfully. Considerations of general deterrence are also important. 91 The Court exercises caution before imposing a sentence of imprisonment, and it is reluctant to impose sentences of imprisonment of indefinite duration. Nevertheless, the Court should do what it can to induce the respondent to comply with his lawful obligations: DKH18 at [78].

Australian Crime Commission v DTO21

At a glance

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Before

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Judgment (7 paragraphs)

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Legislation Cited (6)

Cases Cited (28)

Cited By (6)