Australian Crime Commission v DTO21

1. Further to order 1 made on 28 March 2022, the respondent be imprisoned until 27 March 2023.
2. Reserve liberty to the parties to apply in the event that the respondent purges his contempt.
3. The respondent is to pay the applicant's costs of and incidental to the application heard on 2 August 2022 to be assessed if not agreed.
4. Reserve liberty to apply generally.
5. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), to prevent prejudice to the proper administration of justice: (a) The unredacted version of the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court. (b) Within 7 days the parties provide to the Associate to Thawley J a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 On 28 March 2022, the Court declared that DTO21 was "guilty of the charge of contempt of the Australian Criminal Intelligence Commission in that, being a witness appearing at an examination before an examiner on [REDACTED], the respondent refused to answer seven questions which the examiner required him to answer, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth)". On that day, the Court made various orders including that DTO21 be imprisoned until further order. Liberty was reserved to the parties to apply. The reasons for making the declaration and orders may be found in Australian Crime Commission v DTO21 [2022] FCA 288 (DTO21 No 1). 2 Pursuant to the liberty granted, DTO21 requested that the Court "finalise the proceedings by… imposing a [fixed] sentence". The request to have the matter relisted was made by email. At the hearing, DTO21 relied upon two affidavits, one affirmed by him and the other affirmed by his solicitor. The basis of DTO21's application, as put in oral submissions, was that: (1) it should be accepted on the basis of the events which have occurred to date that he will not purge his contempt and, therefore, that no useful purpose is served by continuing the indeterminate sentence; (2) the time which has been served is sufficient punishment for the contempt and, therefore, DTO21 should now be released; and (3) if the time served to the date of judgment on this application is not considered by the Court to be sufficient, a further fixed sentence should be imposed. 3 The applicant opposed bringing the indeterminate sentence to an end and further submitted that, if the indeterminate sentence was to be brought to an end, a substantial fixed term should be imposed. For the reasons which follow, I have reached the view that it is preferable for a fixed sentence to be imposed. These reasons assume familiarity with DTO21 No 1. I have adopted in these reasons the abbreviations used in those reasons. 4 I conclude that it is still necessary to obtain DTO21's answers to questions: DTO21 has not been discharged from compliance with the relevant summons - see DTO21 No 1 at [12]; [25]; [81]; the relevant investigation is continuing - see: DTO21 No 1 at [90]; and the applicant considers DTO21 is in possession of information which is relevant and material to the work of the ACIC and that it is necessary to obtain the contemnor's answers to questions - see: DTO21 No 1 at [51]. 5 As noted at [2(1)] above, DTO21 submitted that the Court should conclude that he will not purge his contempt and that, therefore, no useful purpose is served by continuing the indeterminate sentence imposed on 28 March 2022. I do not accept that there is no chance that DTO21 will purge his contempt and I consider that the coercive purpose of punishment remains a relevant consideration. 6 In refusing to answer the questions the subject of the contempt charges, DTO21 indicated that his refusal to answer was based on a fear of reprisals against him and his family. This was also said to be his position at the hearing of the contempt charges - see: DTO21 No 1 at [23], [61]. 7 DTO21 gave evidence on this application and was cross-examined. In his affidavit he stated: When I was brought into custody, I expressed that I did not want to be placed in protection, because I fear the impression may be gleaned that I am an informer and would therefore be targeted by other inmates. 8 DTO21 did not, in terms, give evidence that he would not purge his contempt for fear of reprisals against him or his family. DTO21 has never given evidence of any specific threat. 9 From the time of his incarceration on 28 March 2022 until [REDACTED], DTO21 was placed in [REDACTED] which, according to DTO21's understanding, is a [REDACTED]. He stated in his affidavit that he was only allowed out of his cell on three occasions, once to see a physiotherapist, once to see a psychiatrist and once to speak with his solicitor. 10 On [REDACTED], DTO21 was transferred to the [REDACTED]. He was not generally allowed out of his cell, nor to have face-to-face contact with anyone. 11 In the week of [REDACTED], DTO21 was transferred to [REDACTED]. According to DTO21's understanding, [REDACTED]. DTO21's affidavit evidence included: I was advised by Corrective Services officers that a placement in the [REDACTED]. 12 DTO21's affidavit evidence included the following relevant to his medical conditions and the difficulties in obtaining treatment: [REDACTED]. As a result of not taking my medication for [REDACTED], my time in custody has been extremely difficult, particularly on my mental health. I did not have any social interaction and I could not access any natural sunlight whilst I was housed [REDACTED]. I estimate that I got around 15 minutes in total of conversation with prison officers on any given day. The rest of the day was spent watching TV or reading books, when I could get access to them. When at my lowest emotional points, I talked to myself to try and calm my anxiety and stop my thoughts racing. At times, my anxiety has been so bad that it has affected the regularity of my heartbeat. When I first came to [REDACTED], the Doctor confirmed that I had an irregular heartbeat. The doctor ordered that an ECG be performed, and a blood test conducted. I did not have an irregular heartbeat prior to coming into custody. I advised a nurse about my heartbeat and she advised me that if it happened again, then I should 'knock up' (press the alarm bell) in my cell and advise the nurse on duty. One evening [REDACTED] whilst in bed, my heart rate was beating exceedingly fast, and I felt tightness in my chest. I pressed the 'knock up' button in my cell to alert the nurse, and I told the guard about my symptoms. The guard said to me: "I'll let her know." No one came to see me after that. On the morning of [REDACTED] I saw a doctor again concerning my irregular heartbeat. The doctor advised me that it will take a month to get an appointment with a cardiologist. He indicated that I should have further tests, including an ultrasound and a stress test. In the afternoon of [REDACTED] the doctor advised that he had spoken to a cardiologist and that there was nothing wrong with my heart. I am concerned that I have not been assessed properly and that I have not been receiving appropriate care and treatment. I did not have any issues with my heart prior to entering custody. My irregular heartbeat continues at the time of affirming this affidavit. I am afraid that if I have a serious medical episode in custody, it may not be attended to correctly. In addition to the above concerns, my name was placed on my cell door at [REDACTED], and now all the officers in the prison call me either by my last name, or my first and last name, thereby alerting other inmates to who I am. My mental health is in a terrible state. The last four months in custody have been the hardest time of my life, due to the appalling conditions and minimal contact I have be[en] permitted to have with my family. 13 I accept that, in prison, DTO21 has not been taking his medication for [REDACTED]. This is because of his reasonable perception of danger if other inmates were to become aware of his access to the drug. I accept that his experiences in prison have been worse as a result and that he perceives his mental health to have deteriorated. I also accept that DTO21 has not been provided with [REDACTED] which he desires. 14 Documents produced pursuant to a subpoena issued to Justice Health and Forensic Mental Health Network contained a note made by a Consultant Psychiatrist on [REDACTED] which recorded that DTO21 "appeared hopeful about his outlook", that DTO21 "acknowledged feeling distressed by the uncertainty of his release date - but felt confident that his release will come in the coming weeks or months". DTO21 gave evidence that he was "hopeful" rather than "confident". 15 The documents produced by Justice Health and Forensic Mental Health Network also referred to the fact that DTO21 has complained about an irregular heart rate. An assessment of his symptoms gave rise to a diagnosis of [REDACTED]. His symptoms were discussed with a cardiologist who was recorded as considering that they constituted a "normal variant" and that no further investigation was warranted. A note created on [REDACTED], recording these matters, also states: "Narcissistic and Anxiety +++". 16 DTO21 gave the following evidence in his affidavit: [REDACTED]. 17 This evidence was challenged in cross-examination by reference to records made by registered nurses making "welfare checks", contained in the documents produced by Justice Health and Forensic Mental Health Network. The records contain entries, including entries covering the period of a week from [REDACTED], stating that there were "no issues to report". DTO21 accepted that he did not [REDACTED] to the registered nurses who had conducted the "welfare checks". I accept DTO21's explanation that he did not complain to the registered nurses in relation to this issue and that, rather, he complained to the guards. This was explained by DTO21 as being in part based on a decision not to go behind the requests made to the guards. 18 DTO21 has not been incarcerated previously. I have set out DTO21's personal circumstances, as they then stood, in DTO21 No 1. Apart from his incarceration, they have not relevantly changed. 19 I have set out in DTO21 No 1 the seriousness of DTO21's offending and the various matters considered in making the orders made on 28 March 2022. I have reconsidered all of the various underlying circumstances referred in DTO21 No 1 in the light of the events since those reasons were given. 20 I accept that DTO21's experiences in prison have been, at the least, unpleasant and difficult and that his incarceration is likely to have been more difficult than incarceration would have been for a person who did not suffer the various medical conditions from which he suffers. I also accept that the prison experience is likely to have been worse, in particular more isolating, than it would have been in the absence of the COVID-19 pandemic. 21 Having considered these matters, I think there is a continued prospect of DTO21 purging his contempt. 22 I do not think there is a significantly greater chance of DTO21 purging his contempt by the continuation of an indeterminate sentence as opposed to the chances of him purging his contempt in circumstances where he has a fixed sentence with the possibility of early release in the event he were to purge his contempt. 23 Having regard to: (1) the relevant factors referred to in DTO21 No 1 at [33]; (2) the events as described in DTO21 No 1; (3) the events since that judgment, in my view, a fixed sentence of 12 months is now appropriate. I have considered the cases referred to in DTO21 No 1, in particular Anderson v GPY18 [2019] FCA 954, Anderson v BYF19 [2019] FCA 1959 and Lusty v CRA20 [2020] FCA 1737. 24 In fixing that sentence, and reserving liberty to apply in the event that DTO21 chooses to purge his contempt, I have taken into account the coercion of the contemnor as an important consideration - see: DTO21 No 1 at [34]. I have also placed particular weight on the seriousness of the contempt proved, DTO21's awareness of the consequences of what he did, the fact that the contempt occurred in the context of serious crime and considerations of general deterrence. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.