CORRUPTION AND CRIME COMMISSION -v- ALLBEURY, SILVESTRO, CHIKONGA, SMITH [No 2] [2011] WASC 26 (4 February 2011)

Supreme Court of WA|2011-02-04|Before: Martin CJ

Applicant : Corruption and Crime Commission of Western Australia

1 Each of Tristan Roger Allbeury, Stephen Laurence Silvestro, Clovis Murhabazi Chikonga and Troy Crispin Smith have been convicted of committing acts which constitute a contempt of the Corruption and Crime Commission (the Commission) which, pursuant to s 163 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) can be dealt with and punished by the Supreme Court as if the contempt were a contempt of this court.

2 In the cases of Mr Silvestro, Mr Chikonga and Mr Smith, the contempt of which they were convicted arose from their refusal or failure to be sworn or to make an affirmation when served with a summons requiring them to attend and give evidence before the Commission, contrary to s 160(1)(a) of the CCC Act. In the case of Mr Allbeury, his conviction for contempt arose from his repeated failure to answer a number of questions relevant to the investigation which the Commission required him to answer, after he had been sworn, contrary to s 160(1)(b) of the CCC Act, and also as a consequence of his acts insulting the Commission while the Commission was conducting the examination, contrary to s 162 of the CCC Act. I will deal more specifically with the circumstances of each offence when I turn to consider each contemnor specifically.

3 Mr Allbeury, Mr Silvestro and Mr Smith were convicted by me after trial on 13 December 2010. Mr Allbeury and Mr Smith have been in custody since then. Mr Silvestro was unable to attend the trial on 13 December 2010 as a result of hospitalisation. However, he instructed counsel to advise the court that the trial could proceed in his absence. He was taken into custody on 14 December 2010, when he was discharged from hospital.

4 Mr Chikonga did not attend court on 25 November 2010, despite having been served with a summons requiring his attendance on that date. As a result of his failure to appear, I issued a warrant for his arrest, and adjourned his case until 13 December 2010. The warrant was not executed before that date, and Mr Chikonga failed to appear. I adjourned his trial, and maintained the warrant for his arrest, which was executed on 15 December 2010, when he came to attention because of his involvement in a serious motor vehicle accident. He has been in custody since then. On 21 January 2011, he pleaded guilty to the charge brought against him, and was convicted on that plea.

5 There are many similarities in the cases involving each contemnor. They were represented by the same counsel, and many of the same submissions were put on behalf of the Commission, and on behalf of each contemnor, in each case. I therefore propose to deal first in these remarks with issues that are generic to all four cases, before turning to deal with considerations specific to each individual case.

General considerations applicable to contempt of court

6 As far as I am aware, these cases are the first cases in which persons have been convicted of contempt of court because of contempt of the Commission. It will therefore be appropriate for me to make some observations specifically directed to that offence, and more particularly to the commission of that offence in the context of the exercise of the powers conferred upon the Commission in these cases which concerned the investigation of organised crime. However, before turning to those matters, I will refer to some considerations applicable to contempt of court generally.

7 Contempt of court is the only common law offence preserved under the laws of Western Australia. Section 4 of the Criminal Code Act 1913 (WA) provides that no person can be tried or punished in Western Australia for a criminal offence unless the offence is contrary to an applicable statute. However, s 7 of that Act provides that nothing in the Act, or the Criminal Code (WA) created pursuant to the Act, affects the authority of courts to punish persons summarily for the offence of contempt of court.

8 Because the offence of contempt of court is not created but merely preserved by statute, there is no maximum penalty for the offence (Kennedy v Lovell [2002] WASCA 226 [5]). The punishment to be applied following conviction for contempt is entirely a matter within the discretion of the court (R v Pearce [1992] WASC 341; (1992) 7 WAR 395, 431).

The Sentencing Act 1995 (WA) does not apply

9 The Sentencing Act 1995 (WA) does not apply to or in respect of a person being punished for, or as for, contempt of court (Sentencing Act, s 3(3)(a)). It follows that there is no power to make an order for eligibility for parole and consequently, the Prisoners Review Board has no power to grant parole to a prisoner sentenced to imprisonment for contempt of court under the provisions of the Sentence Administration Act 2003 (WA). I am therefore passing sentence on the assumption that each contemnor will serve the full term of any term of imprisonment imposed. This means that the sentences I will impose are not directly comparable to sentences imposed under the Sentencing Act with eligibility for parole, in practical terms, and should be regarded as somewhat more severe, as there is no prospect of parole.

10 However, there remains a possibility, in theory at least, that each contemnor may not necessarily serve the full term imposed, because of the provisions of O 55 r 9 of the Rules of the Supreme Court 1971 (WA). That rule provides that the court may, on the application of any person committed to prison for contempt of court, discharge that person notwithstanding that the term for which he may have been committed has not expired.

11 It follows that notwithstanding the sentences which I propose to impose today, it is open to each contemnor to apply to the court for discharge from prison prior to the expiry of that term. However, I would not expect that power to be exercised unless there was a significant change in the circumstances of the person under sentence. The most obvious way in which such a change in circumstance could be established would be by a contemnor purging their contempt, by returning to the Commission and cooperating with the Commission in its investigation, although each contemnor has indicated through counsel that he has no present intention of taking that course.

12 One of the options open to the court when punishing for contempt of court is to order that the offender be committed to prison until such time as he or she purges their contempt - in these cases, by providing evidence in the examinations conducted by the Commission, or until further order of the court - see Hannaford (an examiner under the Australian Crime Commission Act 2002 v HH [2010] FCA 1214. When the former course is followed, the contemnor is committed to prison until the contempt is purged. The committal to prison is of a conditional nature, and remains in force until the contempt comes to an end, or a further order of the court is made. When such an order is made, as soon as the contempt is purged, the offender is entitled to release - see Re Freston [1883] UKLawRpKQB 91; (1883) 11 QBD 545; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. When an order is made committing the contemnor until further order, the court retains the power to determine whether the contemnor should be further punished, even if he or she purges the contempt. The purpose of making such orders is to endeavour to coerce the contemnor into purging their contempt by complying with his or her legal obligations.

13 No party to these proceedings has suggested that it would be appropriate to exercise the power to impose an indeterminate sentence in any of the cases before me. In the case of those who were convicted after trial on 13 December 2010 (Mr Allbeury, Mr Silvestro and Mr Smith), following their conviction and before adjourning the matter to a hearing as to sentence on 21 January 2011, I indicated clearly and unequivocally to each of them (in the case of Mr Silvestro, through his counsel) that it remained open to them to purge their contempt, by returning to the Commission and participating in the examination it was conducting, and that if they did so, it would be likely to have a significant impact upon the sentence imposed upon them.

14 In the case of Mr Chikonga, given that he was represented by the same solicitors and counsel who represented those who were convicted on 13 December 2010, it is reasonable to infer, and I do infer, that he would have been advised by his legal representatives of the opportunity to mitigate the penalty likely to be imposed upon him by purging his contempt, prior to being dealt with on 21 January 2011. However, he has taken no step in that regard, and has indicated, through his counsel, in common with the other contemnors, that he has no present intention of complying with his obligation to give evidence in the course of the examination conducted by the Commission.

15 In those circumstances, it would be inappropriate to impose an indeterminate sentence, as it does not seem likely that this would induce any of the contemnors to change their position and comply with their legal obligations. However, even though I have decided to impose a finite sentence on each contemnor, as I have indicated, because of the provisions of O 55 r 9, it is never too late, and if any of the contemnors has a change of heart, and cooperates with the Commission in its investigation, it would be open to that person to apply for an early discharge from the term of imprisonment which I will impose this morning. As Dunford J observed in The Honourable Justice James Roland Tomson Wood, Royal Commissioner v Charles Joseph Staunton (Unreported, NSWSC, 8 June 1995) 12, each contemnor has been, and will continue to be 'in a sense, his own gaoler'.

Statutory sentencing considerations are not irrelevant

16 As I have observed, the Sentencing Act does not apply as a matter of law to the sentences which I will impose this morning. However, there is authority by which I am bound (Kennedy v Lovell) to the effect that it is nevertheless appropriate to have regard to the principles of sentencing set out in s 6 of the Sentencing Act. Those principles include the principle that the sentence must be commensurate with the seriousness of the offence, and imposed after taking into account the circumstances in which the offence is committed, any aggravating factors, and any mitigating factors. Another principle imposed by that section, which I take into account, is that a sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified, or required for the protection of the community.

17 In the case of Mr Chikonga, who pleaded guilty (after failing to attend court when required), a question arises as to whether the principles which have evolved under the Sentencing Act in relation to the mitigating effect of a plea of guilty should be applied. I will deal with that issue when I come to consider the specific circumstances of his case.

The purposes of punishment for contempt of court

18 In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 ‑ 314, Kirby P observed:

Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said:

'... These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.'

A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately [sic appropriately] emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.

19 This passage was cited with approval by Malcolm CJ in Kennedy v Lovell [7].

20 In addition to the considerations of punishment, deterrence and denunciation identified by Kirby P, as I have noted in my observations relating to the availability of an indeterminate sentence, it is open to a court to impose a sentence for the purpose of endeavouring to coerce an offender into performing his or her legal obligations. However, it is also established that such an offender should not be kept in custody for any period longer than would be appropriate as punishment for the contempt without regard to coercion (see Wood v Galea (1997) 92 A Crim R 287, 288 ‑ 289; Re Barrell Enterprises [1973] 1 WLR 19, 27; Enfield London Borough Council v Mahoney [1983] 1 WLR 749, 755 et seq).

21 Notwithstanding the opportunity to which I have referred, provided by O 55 r 9, to each of the contemnors to apply for discharge from their sentence after purging their contempts, I am passing sentence this morning on the basis that the time for coercion has passed, given that each contemnor has declined an opportunity to cooperate with the Commission in the past, and has clearly and unequivocally indicated through their counsel that they have no present intention of doing so in the future. Accordingly, coercion, or the possibility that the sentence I impose might result in a reconsideration of the position of each contemnor is not a factor which I have taken into account in arriving at the sentences I will impose this morning. Rather, I am proceeding on the basis that the sentences to be imposed should properly reflect the punishment which is commensurate with the seriousness of the offences which have been committed, the need to denounce in clear and unequivocal terms deliberate contempts of the kind committed by each contemnor, and the need to deter others from taking a similar course. I will have more to say of each of these considerations in the specific context of my remarks relating to contempt of the Commission.

22 In Wood v Staunton [No 5] [1995] NSWSC 61; (1996) 86 A Crim R 183 (185), Dunford J identified a number of circumstances that would often be relevant to an assessment of the punishment appropriately imposed for contempt of court committed by failing to give evidence (drawing upon observations made in the Court of Criminal Appeal of NSW in Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)). Dunford J identified ten considerations 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.

23 In subsequent cases, this list of considerations has been regarded as a convenient guide to the circumstances appropriately considered - see, for example, Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Kennedy v Lovell. To the extent that each of these factors is generally applicable to each contemnor, I will express my views in relation to it after addressing considerations specific to the offence of contempt of the Commission. To the extent that the factors are specific to each individual contemnor, I will address them in the course of my observations specific to that contemnor.

24 Part 10 of the CCC Act specifies various circumstances in which a person may commit a contempt of the Commission. They include failure to attend in answer to a summons, or to produce any document or other thing required by a summons, refusal to be sworn or to make an affirmation, and failure to answer any question relevant to the investigation being undertaken by the Commission. Other matters that can give rise to contempt of the Commission under pt 10 of the CCC Act include hindering or obstructing authorised persons in the exercise of powers of entry and search, the supply of false information, insulting the Commission, interrupting an examination conducted by the Commission, and anything else done at an examination conducted by the Commission which would be contempt of court if the Commission were a judge acting judicially. As I have mentioned, s 163 of the CCC Act provides that this court has jurisdiction to deal with contempt of the Commission as if it were a contempt of this court, where the requirements of pt 10 of the CCC Act are satisfied.

Organised crime: exceptional powers and fortification removal

25 The Commission was exercising the powers conferred upon it by pt 4 of the CCC Act at the time each contemnor committed the offence of contempt of the Commission. That part is headed 'Organised crime: exceptional powers and fortification removal'. The provisions of that part largely replicate provisions that were contained in the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 (WA) (the Exceptional Powers Act) which was repealed when the CCC Act was enacted. The provisions of that Act included provisions which were similar in effect to pt 10 of the CCC Act, which empowers the Supreme Court to deal with contempt of the Commission as if it were contempt of this court. As the Hon Jim McGinty MLA, Attorney General of the day, pointed out during the parliamentary debate on the Criminal Investigation (Exceptional Powers) and Fortification Removal Bill 2001 (WA) (Exceptional Powers Bill), those provisions were in turn drawn from provisions found in the Royal Commissions Act 1968 (WA). In that context he observed on 28 November 2001:

I see a direct parallel between a royal commission and this particular investigatory procedure. They are both actions of the executive arm of government, and they both vest in the Supreme Court the power to punish contempt of that court. (28)

26 Part 4 of the CCC Act has been enacted to provide exceptional powers to be utilised in the investigation of organised crime. The public policy underlying the conferral of those powers is obvious, but was more specifically enunciated in the course of the Second Reading speech relating to the Exceptional Powers Bill (per the Hon Nick Griffiths MLC, 5 December 2001, 1 ‑ 3):

We will not tolerate the violence and lawlessness associated with organised crime. This Bill specifically addresses the major problems identified by law enforcement authorities in investigating these crimes and bringing the perpetrators to justice.

Our primary targets are drug traffickers, outlaw motorcycle gangs and others associated with organised crime. These people have a complete disregard for the law.

...

[The Bill] will provide the Western Australia Police Service with new and exceptional powers to fight organised criminal activity. These additional powers are vital to win the war against these highly organised criminals who have access to massive resources. The central objective of the Bill is to provide the Commissioner of Police with greater investigatory powers. It has been recognised in Australia and many overseas countries that highly organised crime cannot be investigated and prosecuted by relying on ordinary police powers of investigation.

...

Organised crime groups, including outlaw motorcycle gangs, also operate under a code of silence that surrounds the commissioning of offences committed by members of the organisations, and are prepared to use intimidation and violence to commit crime and prevent detection, apprehension and prosecution.

...

If a person fails to appear in response to the summons, the special commissioner may issue a warrant for the apprehension of that person ... these sanctions are necessary to ensure that a full and proper investigation can be undertaken.

...

This abrogation of the privilege of self-incrimination for the purposes of an investigation is essential to break the code of silence that is often associated with organised crime.

27 The powers conferred upon a special Commissioner under the Exceptional Powers Act have now been conferred upon the Commission under pt 4 of the CCC Act. Pursuant to that part, once the Commission has made an exceptional powers finding (pursuant to s 46), other divisions within pt 4 facilitate the investigation of the offences that are the subject of such a finding.

28 In my view, it is of profound significance to the sentences which I am to impose today, that each contemnor has been convicted of contempt of the Commission in the exercise of the powers conferred upon it with respect to the investigation of organised crime. Counsel for each contemnor submitted that there was a material distinction between the exercise of those powers, and the conduct of an investigation by a Royal Commission. While it is true that, in the exercise of the powers conferred by pt 4, an investigation is conducted essentially by the Commissioner of Police and his or her representatives, rather than the Commission itself, for the purposes of sentence, this distinction does not appear to me to be material. The purpose for which the exceptional powers are conferred upon the Commission is to facilitate the investigation of organised crime, and the offences committed by each contemnor involve a deliberate and continued defiance of the authority of the Commission to facilitate such an investigation.

29 Organised crime involves the wilful and concerted defiance of the authority of the State to administer law and order for the safety and security of the community. In that context, wilful defiance of the authority of the State to investigate organised crime and bring its perpetrators to justice by committing contempt of the Commission has special significance. And because the contempts committed by each contemnor involve a deliberate, persistent and calculated defiance of the authority of the State to investigate organised crime, deterrence has great significance in the sentencing process.

30 By these observations I do not mean to suggest that I am passing sentence on the basis that the contemnors have acted in concert with each other, as part of a plan to frustrate the Commission's investigation. There is no evidence which would support such a finding. However, the fact that each of the contemnors has committed an offence in the course of the Commission's investigation of organised crime reinforces the observations I have made with respect to the importance of deterrence when passing sentence for a contempt committed in the context of such an investigation, and emphasises the importance of effective deterrence.

31 In such a context, the penalty imposed must be significant enough to discourage prospective witnesses from making a calculated choice to suffer a penalty rather than give evidence, and thereby frustrate the achievement of the important policy objectives which underpin those parts of the CCC Act relating to the investigation of organised crime. It is important that those who are summoned to provide evidence to the Commission in the context of such an investigation clearly understand that failure to fulfil the obligations imposed upon them by the Commission, exercising the powers conferred upon it by the Parliament, will be regarded with the utmost seriousness, and will result in significant punishment.

32 In each of these cases, the contemnor has committed an offence which involves wilful defiance of the authority of the Commission, as the agency of the State charged with responsibility for facilitating the investigation of organised crime. That wilful defiance has been maintained notwithstanding the provision of a continuing opportunity to mitigate the offence by purging the contempt by giving evidence. In the context of such contumacious contempt, deterrence will play such a significant part in the sentencing exercise, that personal circumstances and mitigating factors specific to each offender will necessarily have reduced significance. Indeed, the seriousness of the offence committed by each contemnor is such that it would only be a rare and exceptional case in which personal circumstances would have any impact upon sentence.

33 There is another aspect of the particular powers exercised by the Commission with respect to organised crime that merits attention. That concerns the inherent likelihood of those who are called upon to provide information which facilitates the investigation of organised crime asserting that they fear a significant risk of retribution if they cooperate with the Commission. I will have more to say about this aspect of these cases when I deal with the specific circumstances of each offence. However, because of the inherent likelihood of such assertions being made, as a justification for failure to cooperate in the investigation of organised crime, 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 upon those who have committed contempt of the Commission in its exercise of those exceptional powers.

34 As I have indicated, the authorities establish that sentencing for contempt of court is an exercise of judicial discretion which is unconstrained by anything other than a consideration of the general principles to which I have referred. The circumstances giving rise to the offence of contempt of court are many and varied. Because of the breadth of the discretion, and the breadth of the circumstances which might give rise to a conviction enlivening the discretion, there is no established sentencing tariff or range within which sentences customarily fall. Nevertheless, in Kennedy v Lovell [22], Malcolm CJ noted that a review of sentences imposed for contempt of court arising from a refusal to answer questions in criminal proceedings suggested that a common sentence where only imprisonment was imposed was in the range of 12 to 18 months. Counsel for the Commission produced a helpful table identifying a number of cases in this area, which I have reviewed, and which support counsel's assertion that they suggest that the range for a contempt of the kind committed in these cases was between 1 and 2 years. However, I reiterate that there is no established range of tariff for cases of this kind, and sentences for contempt of a Royal Commission and for contempt of court generally have exceeded 2 years in some instances: see Wood v Galea.

35 Because of the view I have already expressed in respect of the importance to be attached to the element of deterrence, and the denunciation of conduct which involves continued wilful defiance of the authority of the law, at least where a contempt of the Commission is committed in the exercise of its exceptional powers to facilitate the investigation of organised crime, the general starting point must be at the upper end of the sentencing range broadly indicated by the cases to which I have referred. Because these are the first penalties imposed for contempt of the Commission, if they fail to have the desired deterrent effect, and others flout the authority of the Commission in future, it may be necessary to increase the sentences generally imposed, in order to support the Commission in its performance of its important investigative functions.

36 I will now address such of the ten factors identified by Dunford J in Wood v Staunton [No 5] as are generally applicable to all contemnors.

37 I have no hesitation in categorising each of the offences committed by the contemnors as extremely serious. The Commission was exercising its power to facilitate the investigation of organised crime by conducting an inquiry into a brawl which erupted between members of two motor cycle gangs during the course of a public sporting event at Kwinana on 3 October 2010. In the course of that brawl, two of the contemnors, Mr Silvestro and Mr Smith, were seriously injured. In its exceptional powers finding, the Commission found that there were reasonable grounds for suspecting that two or more serious offences were committed in the course of organised crime, in the form of serious assaults upon Mr Silvestro and Mr Smith. As Mr Allbeury and Mr Chikonga are members of the same motor cycle club as Mr Silvestro and Mr Smith, it seems unlikely that they were perpetrators of the violence directed against those two men. However, all four men have persistently refused to provide information which could assist to bring the perpetrators of serious offences committed in the course of organised crime to justice. They have persistently defied the authority of the Commission to perform its important function in facilitating the investigation of organised crime in a manner which, if not regarded as extremely serious, would likely encourage others with information relating to organised crime to adopt a similar stance.

38 Counsel for the contemnors suggested that the offences which they committed should not be regarded as analogous to similar offences committed during the conduct of a Royal Commission. While it is true that the Commission's function in relation to the investigation of organised crime is to facilitate investigations by others - namely, the police - rather than itself produce a report of the kind ordinarily produced by a Royal Commission inquiring into, for example, police corruption, the public policy objective is in each case the same; namely, the investigation of serious crime with a view to bringing the perpetrators to justice. The contempts of the Commission committed by each contemnor undermine that policy objective no less seriously or significantly than the refusal of a witness to give evidence to a Royal Commission. Accordingly, the principles enunciated and the sentences imposed in respect of cases involving contempt of a Royal Commission appear to me to be equally applicable to the contempts with which I am dealing this morning.

2. Whether the contemnor is aware of the consequences to himself of what he did

39 In each case the Commissioner clearly and explicitly warned each contemnor, on a number of occasions, of the likely consequences of their persistent refusal to comply with their legal obligations. Each contemnor, through his counsel, has admitted that he was aware of those consequences. Further, in the course of these proceedings I have made it clear to each contemnor that failure to take the opportunities to purge their contempts which have been provided will have serious consequences in terms of the penalties to be imposed.

3. The actual consequences of the contempt on the relevant trial or inquiry

40 Each of the contemnors has refused to provide the Commission with information that he may have relating to the investigation of serious offences committed in the course of organised crime. The stance which they have adopted has inevitably impeded and delayed the conduct of that investigation. Although one contemnor is not to be additionally punished for the conduct of another, and I have noted that there is no evidence which would support a finding that they have acted in concert, the fact that a significant number of witnesses have been found guilty of contempt in relation to this inquiry of the Commission supports the inference that the position adopted by each contemnor has significantly impeded the investigation, and reinforces the need for a deterrent penalty.

4. Whether the contempt was committed in the context of serious crime

41 Each contempt was committed in the context of the investigation of serious crimes committed in the course of organised crime.

42 In the course of written and oral submissions, counsel for each contemnor submitted that I should find that the reason for their refusal to provide information was a well-founded fear of retribution in the event that they cooperated with the Commission. Counsel for the Commission took the position that there was no evidence of such a fear, and that the court should not proceed to pass sentence on that basis without receiving evidence capable of supporting such a finding. In the light of that stance, I indicated to counsel for each contemnor that, consistent with the general principles relating to sentencing for criminal offences, if any contemnor sought mitigation of sentence on the basis that they were motivated by fear of retribution, it would be necessary to prove the existence of that fear, on the balance of probabilities, by adducing evidence. I also indicated that the weight, if any, to be given to the asserted mitigatory factor would likely depend upon the strength of the grounds for the apprehended fear, given that the investigation was being conducted in private and that elaborate precautions were provided for the protection of the secrecy of the investigation. I provided counsel for each contemnor with the opportunity to take instructions on the question of whether evidence would be adduced in order to support the submission that I should sentence on the basis of the mitigatory factor asserted. I was advised in due course that no contemnor wished to adduce evidence on those topics.

43 It follows that I cannot pass sentence on the basis that the contemnors were motivated by a fear of retribution, or that such a fear was well founded, because there is simply no evidence to support such a finding, which is disputed. In any event, for the reasons I have already given, in the particular context of the exercise of the Commission's exceptional powers to facilitate the investigation of organised crime, it would impede the achievement of the important policy objective underpinning the conferral of those powers if significant mitigating weight were given to an assertion of fear of retribution as a reason for refusing to provide information.

6. Whether the contemnor has received any benefit by indicating an intention to give evidence

44 There is no evidence on this topic, one way or the other.

7. Whether there has been any apology or public expression of contrition

45 No contemnor has apologised or publicly expressed contrition for the commission of their contempt. As I have indicated, Mr Chikonga did plead guilty, when he appeared on 21 January 2011, having previously failed to appear on the date the other contemnors were convicted. I will deal with the question of whether that plea should have any impact upon the sentence imposed upon him when I consider his personal circumstances.

46 I will deal with each of the contemnors specifically and individually shortly.

47 For the reasons I have already given, in my view, the need for general deterrence is the most significant factor properly taken into account by me when passing sentence for these contempts.

48 Because of the wilful and persistent denial of the authority of the Commission committed by each contemnor, it is appropriate to publicly denounce the seriousness of their offence in the strongest possible terms, and I have no hesitation in doing so.

49 This review of the specific factors identified by Dunford J in Wood v Staunton [No 5] which are generally applicable to each contemnor shows that there is no factor which provides any form of mitigation with respect to the penalty properly imposed. It follows that none of those factors cause me to deviate from the starting point to which I have already referred at the upper end of such range as might appear to apply to cases like this.

50 It is appropriate for me to refer to the submissions that have been put with respect to the character and antecedents of each contemnor, for the purpose of evaluating whether there is anything in those matters that would mitigate the penalty otherwise imposed. However, I do so in the context of the general views I have already expressed to the effect that the seriousness of the offences committed by each contemnor, and the vital need to deter others who might be inclined to follow their example, support the view that, generally speaking, the personal circumstances and antecedents of a contemnor would have to be exceptional to provide any form of mitigation of penalty.

51 Mr Allbeury attended the Commission in answer to a summons, and was sworn to give evidence. However, thereafter he persistently refused to answer any question of any substance. In addition, in refusing to answer eighteen separate questions posed by the Commissioner and Counsel Assisting, particularly those posed by the Commissioner, Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'. That conduct resulted in Mr Allbeury's conviction for contempt of the Commission by insulting behaviour. Counsel for Mr Allbeury submitted that he was instructed that Mr Allbeury's abuse was intended to be directed to Counsel Assisting, not to the Commissioner, but having viewed the video recording of the session, I do not accept that assertion. On a number of occasions, Mr Allbeury explicitly directed his vulgar abuse at the Commissioner.

52 Accordingly, unlike the other contemnors with whom I am dealing this morning, Mr Allbeury has been convicted of two offences of contempt of the Commission. I have given consideration to the question of whether the sentences to be imposed for those offences should be ordered to be served concurrently or cumulatively. I have concluded that Mr Allbeury's conduct in wilfully and repeatedly insulting and abusing the Commission adds to the criminality and culpability of his conduct. In a context in which Mr Allbeury was deliberately defying the authority of the Commission to facilitate the investigation of organised crime, the contemptuous regard which he held for the Commission, evident in his abusive language, compounds and aggravates the culpability of his conduct. Failure to sanction that aggravation by the imposition of an additional sentence to be served cumulatively upon the sentence for refusing to answer the Commission's question would inappropriately condone Mr Allbeury's appalling behaviour.

53 Mr Allbeury is 29 years of age and has an extensive criminal record. He has been sentenced to significant terms of imprisonment on a number of occasions, for a variety of serious offences. Of course, that record does not aggravate the penalty appropriately imposed upon him this morning, but it does mean that he is unable to claim the benefit of any form of mitigation arising from prior good behaviour.

54 I have been advised that Mr Allbeury receives a disability support pension, and was living with a woman prior to his conviction and incarceration for these offences. Together, they had child shortly before his conviction and imprisonment. It is submitted that the effect of his imprisonment will be greater, because of the distress he will feel at being separated from his young baby. There is also evidence that his incarceration has had a negative effect upon his partner.

55 However, these considerations are far from exceptional and apply to many offenders who are imprisoned. Like the other contemnors, Mr Allbeury has had the opportunity to mitigate the penalty to be imposed upon him by complying with his lawful obligations. He must therefore take the responsibility for his failure to take that opportunity.

56 I have also been provided with a number of medical reports relating to Mr Allbeury. It is said that he suffers from a number of medical conditions, including bipolar disorder, which together combine to make his conduct variable, erratic, and at times aggressive, violent and anti‑social. While these conditions might go some way to explaining Mr Allbeury's offending, in my view, they do not justify or mitigate the seriousness of his quite deliberate behaviour in any way. It is clear from the DVD which I have viewed, that Mr Allbeury was in complete control of his senses and faculties at the time he committed the offences, and was well aware of what he was doing and of the likely consequences.

57 For these reasons I have concluded that there is nothing in the character and antecedents of Mr Allbeury which would mitigate the penalties otherwise imposed upon him.

58 Mr Silvestro attended before the Commission but refused to be sworn or to take an affirmation for the purpose of giving evidence. As a consequence, he was not asked any questions in the course of the Commission's investigation.

59 Mr Silvestro is 42 years of age. He has an extensive criminal record, although it is of some significance that his last conviction was in 1994. However, it is also of some significance that Mr Silvestro was convicted in 1994 of attempting to defeat or pervert the course of justice, and sentenced to 2 years imprisonment for that offence. Given the similarity of that offence to the offence which he recently committed, it seems to me that his antecedents do not provide any mitigation, notwithstanding the significant period of time which has elapsed since his previous conviction.

60 Mr Silvestro is married and has six children. I am told that one of his children is due to be married on 10 April 2011. However, the prospect of missing that event by reason of his incarceration is not an exceptional circumstance, and is a common consequence of incarceration.

61 I am advised that Mr Silvestro owns and runs a delicatessen with his wife, and is also engaged in the conduct of an earthmoving business. I am advised and accept that both of those businesses will suffer financially as a consequence of Mr Silvestro's incarceration. However, again, that cannot be said to be an exceptional circumstance. Mr Silvestro has chosen those consequences by his persistent refusal to give evidence.

62 I have therefore concluded that none of the matters personal to Mr Silvestro mitigates the penalty otherwise properly imposed upon him.

63 Mr Smith attended the Commission in answer to a summons served upon him, but then refused to be sworn or to make an affirmation, with the consequence that no questions were asked of him.

64 Mr Smith is 37 years of age. He has an extensive criminal record, although he has never been sentenced to a term of imprisonment. However, relatively recently, in November 2010, he was convicted of offences which include the possession of controlled and prohibited weapons, the possession of an illegal drug, and the possession of a utensil used for smoking a prohibited drug. He has a number of prior convictions for similar drug offences, the volume of which suggests a continuing denial of his obligation to comply with the law. Accordingly, notwithstanding that Mr Smith has not previously been sentenced to prison, the extent of his criminal record, and its relative recency, leads inevitably to the conclusion that his prior record is not a matter of mitigation.

65 I am advised that Mr Smith is an operations manager for a construction company operating in the Pilbara region. I am advised that his incarceration will disrupt his employment, with adverse consequences for the company by which he is employed, and will have an adverse effect upon his relationship with his partner and his children. However, none of these matters could be regarded as exceptional, and are the consequence of Mr Smith's continuing refusal to give evidence. I therefore conclude that there is nothing in the character and antecedents of Mr Smith which would mitigate the penalty otherwise imposed.

66 Mr Chikonga attended the Commission in response to a summons served upon him but remained mute, failing to respond to any and all requests that he be sworn or take an oath of affirmation. As a result, he was not asked any question by the Commission on the subject of its investigation.

67 Mr Chikonga is 24 years of age. Despite his relative youth, he has an extensive criminal record which includes convictions for a number of serious offences for which he has been sentenced to terms of imprisonment.

68 Mr Chikonga did not have a conventional childhood. He was born in Rwanda, of Congolese descent. When he was very young, his parents took him to live in Kenya. When he was six years old they moved to Australia as refugees. However, within a year of arriving in Australia, his parents separated. His father was later sentenced to a term of imprisonment for attempting to murder his mother, but he has now been released.

69 When Mr Chikonga was 14 years old, he was sent back to Africa and lived there for a year, before returning to Perth. After returning to Perth, he has been in regular conflict with law and authority which resulted in periods of detention as a child, and periods of imprisonment as an adult. Although Mr Chikonga's prior offending does not aggravate the penalty to be imposed upon him, it does preclude him from seeking the benefit of any mitigating factor by reference to prior good behaviour. While one has sympathy for his troubled upbringing, it is unfortunately far from exceptional in terms of the prior histories we see in the courts, and in any event, does not justify, explain or mitigate his persistent denial of the authority of the Commission.

70 I am also told that Mr Chikonga suffered serious injuries in the motor vehicle accident which resulted in his apprehension. However, there is no relevant connection between those injuries and his offence which would mitigate the penalty properly imposed. On the contrary, if he had answered the summons served upon him, he would have been in custody by 15 December 2010, and would not have been involved in the accident.

71 There is therefore nothing in the character and antecedents of Mr Chikonga which would mitigate the penalty otherwise imposed. However, unlike the other contemnors, he pleaded guilty to the charge of contempt. It is therefore necessary to assess whether the penalty imposed upon him should be mitigated as a result of that fact, when compared to the penalties to be imposed upon the other contemnors.

72 It is appropriate to reiterate the factual circumstances in which Mr Chikonga's plea was entered. Mr Chikonga failed to attend court upon the first return of the summons which had been served upon him. As a result, I issued a warrant for his arrest, and adjourned the summons to be tried on 13 December 2010. The warrant was not executed prior to that date, and Mr Chikonga failed to appear at the time his trial was listed for hearing. As a result, I further adjourned his trial indefinitely, and the warrant for his arrest remained in force. The trial of the other contemnors proceeded on 13 December 2010. The evidence for the Commission took the form of certificates and affidavits which had previously been served. That evidence established conclusively what had occurred when the contemnors appeared before the Commission. None of the contemnors gave evidence. Their defence consisted entirely of legal submissions, which I rejected in reasons which I delivered that day.

73 Mr Chikonga was arrested and taken into custody following his involvement in the motor vehicle accident to which I have referred on 15 December 2010. It is reasonable to infer that, but for his involvement in that accident, he would have continued to endeavour to evade apprehension and arrest.

74 Following his arrest, Mr Chikonga was brought before the court. He was remanded in custody to appear before the court on 21 January 2011, when his case was listed for trial. Some days prior to the date listed for trial, the court was notified that Mr Chikonga intended to plead guilty.

75 It can thus be seen that Mr Chikonga's failure to appear to answer the charge of contempt brought against him provided him with the benefit of knowing the outcome of the legal arguments which had been advanced unsuccessfully on behalf of the other contemnors, prior to his case being tried. Accordingly, at the time he entered his plea of guilt, he must have been aware, and would presumably have been advised that:

(a) his conduct said to constitute contempt of the Commission would be established unequivocally by the evidence which would be tendered to the court;

(b) in those circumstances, no point or purpose would be served by him giving evidence;

(c) all the legal arguments which had been advanced on behalf of the other contemnors in opposition to their conviction had failed.

76 It is therefore reasonable to conclude that at the time Mr Chikonga entered his plea of guilt, it was nothing more than a recognition of the inevitable outcome of his trial. Further, if he had not pleaded guilty, his trial would have been perfunctory, occupying no more than a few minutes. The evidence for the Commission would have been quickly tendered and received, and any legal arguments advanced on behalf of Mr Chikonga along the lines of the arguments advanced on behalf of the other contemnors would have been shortly dismissed for the reasons I have previously enunciated. In those circumstances, the entry of a plea of guilt produced no significant saving of time or cost for either the Commission or the court, nor did it alleviate any inconvenience to witnesses, as none would have been called.

77 Like the other contemnors, Mr Chikonga has maintained his refusal to cooperate with the Commission, and indicated that he does not intend to change his position. In these circumstances, it is impossible to draw any inference of remorse or contrition from the entry of his plea of guilt, nor was there any identifiable saving of time, cost or convenience to anyone as a result of that plea. In those circumstances, it would seem to me to be quite inappropriate to give Mr Chikonga any discount of sentence, as compared to the other contemnors, particularly given that the only reason he is in any different position from them is the result of his failure to present himself to the court in answer to the summons served upon him.

78 I will now turn to consider whether, nevertheless, I am bound by authority to reduce the sentence as a result of Mr Chikonga's plea.

79 Section 8(2) of the Sentencing Act expressly provides that a plea of guilty by an offender is a mitigating factor. However, as I have indicated, the Sentencing Act does not apply to these offences, and I am not bound to apply that section. In Royer v The State [2009] WASCA 139; (2009) 197 A Crim R 319 [57], Owen JA summarised a number of propositions arising from the earlier decision of the Court of Appeal in Moody v French [2008] WASCA 67; (2008) 36 WAR 393. Those principles included:

A plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished but this does not automatically translate into a reduction in sentence.

Although it is not mandatory to reduce a sentence on account of a plea of guilty, it is well established that, in all but the most exceptional of cases, a plea of guilty will have that result.
It will necessarily be a very rare case in which, notwithstanding the mitigating effect of the plea, the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified.
A plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.

Even in cases in which a plea of guilty is inevitable because of the strength of the prosecution case, it will ordinarily attract a discount because it nonetheless evidences a willingness to facilitate the course of justice and, perhaps, indicates an acceptance of responsibility.

Other than in an exceptional case some discount should be allowed even in a case in which the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility.

80 However, it seems to me that Mr Chikonga's case is exceptional because there is nothing in the plea that indicates contrition, remorse, a willingness to facilitate the course of justice or an acceptance of responsibility. To the contrary, Mr Chikonga has maintained his refusal to cooperate with the Commission, and thereby, his denial of the lawful authority of the Commission.

81 In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [42], members of the High Court referred with approval to an earlier observation of Ipp J in Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465, in these terms:

A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong.

82 However, as I have noted, in Mr Chikonga's case, there were no savings in time or cost, or in terms of inconvenience to witnesses, or in terms of delay to other cases in the list. Mr Chikonga's case appears to me to come within the category identified by King CJ in R v Shannon (1979) 21 SASR 442 (453) in which the plea of guilty is not motivated by remorse, contrition or a desire to assist the administration of justice, but is merely a recognition of the inevitable, and therefore is not a matter of mitigation.

83 Given the exceptional circumstances in which Mr Chikonga entered his plea of guilty, even if I was bound to apply the principles enunciated under the Sentencing Act (which I am not), in my view, those principles would not oblige me to give Mr Chikonga a discount for his plea.

84 In the context of sentencing for contempt of court, I note that in Wood v Galea (292) (a case involving contempt of a Royal Commission into police corruption), Hunt CJ did not regard the plea of guilty as providing any evidence of contrition or need to mitigate the sentence otherwise imposed because guilt would inevitably have been established irrespective of the plea; although in other cases, a small allowance has been made for a plea, even where a guilty verdict was inevitable.

85 In the unusual circumstances of Mr Chikonga's case, I can see no reason in principle why he should receive a discount as a result of his plea of guilty, nor am I legally obliged to apply such a discount. Accordingly, in the exercise of my discretion as to sentence, I do not propose to discount the sentence imposed upon Mr Chikonga as a consequence of his plea of guilt. Such a discount would appear to me to be quite anomalous, when compared to the sentence which I propose to impose upon those who voluntarily presented themselves to the court in answer to the summons served upon them, unlike Mr Chikonga.

87 Tristan Roger Allbeury, for the offence of contempt of court committed by failing to answer questions relevant to an investigation being conducted by the Corruption and Crime Commission, I sentence you to imprisonment for a term of 2 years, to be backdated so as to take effect from 13 December 2010. For the offence of contempt of court committed by insulting the Corruption and Crime Commission while it was conducting an examination, I sentence you to a period of 3 months imprisonment, to be served cumulatively upon the sentence I have just imposed, so that the second sentence will not take effect until you have completed the term of your first sentence. I therefore sentence you to a total term of imprisonment of 2 years and 3 months. No question of eligibility for parole arises.

88 Stephen Laurence Silvestro, for the offence of contempt of court committed by refusing and failing to be sworn or to make an oath or affirmation after being served with the summons to appear before the Corruption and Crime Commission, I sentence you to a term of imprisonment of 2 years, to be backdated so as to take effect from 14 December 2010. No question of eligibility for parole arises.

89 Clovis Murhabazi Chikonga, for the offence of contempt of court committed by failing or refusing to take an oath or affirmation after being served with the summons to attend to give evidence before the Corruption and Crime Commission, I sentence you to a term of 2 years of imprisonment, to be backdated so as to take effect from 15 December 2010. No question of parole eligibility arises.

90 Troy Crispin Smith, for the offence of contempt of court committed by refusing or failing to be sworn to take an oath or make an affirmation after being served with the summons to attend to give evidence before the Corruption and Crime Commission, I sentence you to a term of 2 years of imprisonment, to be backdated so as to take effect from 13 December 2010. No question of parole eligibility arises.

91 I will now hear from counsel in relation to the costs of these proceedings.

Corruption and Crime Commission Act 2003(WA)

Criminal Code Act 1913(WA)

Criminal Investigation (Exceptional Powers Act) and Fortification Removal Act 2002(WA)

Commissions Act 1968

Administration Act 2003

Crime Commission Act 2002

Investigation (Exceptional Powers) and Fortification Removal Act 2002

At a glance

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Judgment (111 paragraphs)

Legislation Cited (7)

Cases Cited (9)