Criminal law - Sentencing - Contempt - Contempt of Corruption and Crime Commission - Relevant principles - Failing to answer questions relevant to Commission's investigation - Relevance of Sentencing Act - Length of sentence - Personal circumstances as a mitigating factor - Revocation of parole under s 19AQ Crimes Act 1914 (Cth) - Relevant law in setting new non-parole period per s 19AR Crimes Act 1914 (Cth) - Interpretation of s19AA(2) Crimes Act 1914 (Cth)

Corruption and Crime Commission Act 2003 (WA), s 96, s 160(1)(b), s 163

Crimes Act 1914 (Cth), s 19AA(2), s 19AA(3), s 19AQ

Sentence Administration Act 2003 (WA), s 71

Sentencing Act 1995 (WA), s 3, s 6

Transfer of Prisoners Act 1983 (Cth), s 23

Warrant issued under s 19AS Crimes Act to serve outstanding balance of federal sentences, set to expire on 26 May 2015

Applicant : Corruption and Crime Commission of Western Australia

Amicus Curiae : Department of Public Prosecutions (Cth)

Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith (No 2) [2011] WASC 26

Corruption and Crime Commission v Wallace [2010] WASC 390

Kennedy v Lovell [2002] WASCA 226

Wood v Galea (1997) 92 A Crim R 287

Wood v Staunton (No 5) (1996) 86 A Crim R 183

X v The Queen (1993) 116 FLR 110

1 MARTIN CJ: Stephen John Wallace was convicted by me of contempt of court after a hearing that was conducted on 13 December 2010 as a consequence of the operation of certain provisions of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act). The facts that gave rise to his conviction are set out in the reasons which I gave on that day and which have been published, and essentially involved a finding that Mr Wallace, who had been served with a summons under s 96 of the CCC Act requiring him to attend and give evidence, attended, took an affirmation, but then failed to answer questions relevant to the investigation that the Corruption and Crime Commission (the Commission) required him to answer: see Corruption and Crime Commission v Wallace [2010] WASC 390.

2 The evidence that was adduced at the time of Mr Wallace's trial established that on 18 different occasions Mr Wallace answered 'no comment' to questions that were directed at ascertaining information in relation to the subject matter of the inquiry. The subject matter of the inquiry concerned allegations that offences had been committed in the course of organised crime, and in particular in respect of offences that were apparently committed on 3 October 2010, one of which was an assault against Mr Wallace himself.

3 In the reasons which I gave for the sentences imposed upon Mr Allbeury, Mr Silvestro, Mr Chikonga and Mr Smith on 4 February 2011 and which have also been published, I set out the principles which I take to apply to the imposition of sentences of this kind: see Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith (No 2) [2011] WASC 26 (CCC v Allbeury & Ors). The circumstances giving rise to Mr Wallace's conviction are very similar in a number of respects to the convictions with which I was concerned when passing sentence on 4 February 2011 in respect of the individuals to whom I have referred. Indeed, the only reason Mr Wallace was not dealt with on 4 February 2011 was because of his conviction and sentence for certain Commonwealth offences which produce certain consequences under the Crimes Act 1914 (Cth) (the Crimes Act) in the event that I impose a sentence of 3 months or more, or at least may produce such consequences subject to a submission that has been made on Mr Wallace's behalf as to the scope of s 19AQ of the Crimes Act and to which I will turn in due course.

4 Before dealing with those matters, however, I adopt by reference but without repeating the general principles which I enunciated in CCC v Allbeury & Ors and in particular my reference to the inapplicability of the Sentencing Act 1995 (WA) (Sentencing Act) and the inappropriateness of an indeterminate sentence having regard to the position which has been adopted by Mr Wallace. I say that because it is clear through Mr Wallace's counsel that he does not propose to cooperate with the Commission and therefore the time for attempts at a coercive sentence has, in my view, passed for the reasons that I enunciated in CCC v Allbeury & Ors.

5 As I observed on that occasion, however, because of O 55 r 9 of the Rules of the Supreme Court 1971 (WA), at any time there is an opportunity for a contemnor to apply to the court for discharge from prison prior to the expiry of the term of imprisonment imposed in the event that the contemnor purges their contempt. That opportunity will be available to Mr Wallace in the event that he purges his contempt just as it was and remains in relation to the others who have been dealt with; although I proceed to pass sentence on the basis that it is highly unlikely that Mr Wallace will avail himself of that opportunity and it is therefore appropriate to impose a finite term of imprisonment.

6 I again accept that the principles referred to in s 6 of the Sentencing Act are relevant to the sentence that I am to impose today and I adopt without repeating the general principles that I enunciated previously governing the imposition of sentences for an offence of this kind, and in particular the significance which I attach and attribute to the importance of ensuring that the powers conferred upon the Commission with respect to the investigation of organised crime are not frustrated by people such as Mr Wallace refusing to perform the obligations imposed by the Act when called upon to do so: see CCC v Allbeury & Ors.

7 In relation to the factors identified in Kennedy v Lovell [2002] WASCA 226 [14], or indeed originally in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (185), many of the conclusions which I drew in relation to those factors in the case of the other four contemnors are applicable to Mr Wallace. At the risk of some repetition of those principles, I will go through them. First, in relation to the seriousness of the contempt proved it is not suggested that I should find other than that the contempt was extremely serious. As with the other cases, it is submitted on behalf of Mr Wallace that some distinction is to be drawn between the role of the Commission investigating organised crime and the role of a Royal Commission, such as the Royal Commission the subject of the offences dealt with in Wood v Galea (1997) 92 A Crim R 287.

8 Although, as I pointed out in CCC v Allbeury & Ors [25] - [35], [38], the role of the Commission under the CCC Act is essentially to facilitate an investigation by the police, it seems to me that the public purpose served by such an investigation is no less significant than the public purpose served by an inquiry by a Royal Commission. It seems to me that the distinction drawn in the submissions that have been made is a distinction without a material difference and so the cases dealing with contempt of a Royal Commission are, in my view, analogous to and worthy of consideration in relation to the offence of contempt of the Commission.

9 In relation to the contemnor's awareness of the consequences, it is accepted that Mr Wallace was aware of the legal consequences of what he was doing. In terms of the actual consequences of the contempt on the relevant trial or inquiry, the effect of the position adopted by Mr Wallace is that the Commission's investigation of the matters that were under investigation has been impeded, as it was by the steps taken by the others who were dealt with by the court on 4 February 2011. It is not disputed that the contempt was committed by Mr Wallace in the context of the investigation of serious crimes committed in the course of organised crime.

10 In relation to the reason for the contempt, submissions have been made which suggest certain factual findings that I should make for the purpose of sentence that would provide a form of mitigation to Mr Wallace. However, the submissions also indicate that no evidence will be adduced in order to support those findings of fact, which are not conceded by the CCC. For the reasons that I enunciated in CCC v Allbeury & Ors [42], [43], in the absence of evidence I cannot make the findings of fact that would provide a form of mitigation by reason of the purpose or reasons for Mr Wallace's contempt. It follows that I am unable to provide any form of mitigation for the matters asserted in those submissions.

11 The question of whether the contemnor has received any benefit by indicating an intention to give evidence is not relevant to this case. There has been no apology or public expression of contrition, and the factors of general and personal deterrence and denunciation of the contempt appear to me to be very significant factors properly taken into account in the imposition of sentence.

12 Turning now to the factors personal to Mr Wallace and in particular his character and antecedents, counsel for Mr Wallace has candidly accepted that the effect of the submissions that have been put is not to suggest that there are any matters within the character and antecedents of Mr Wallace that would mitigate the penalty or, more correctly, that would distinguish him from the contemnors in CCC v Allbeury & Ors by reason of his personal circumstances.

13 Mr Wallace is 47 years of age. He has a criminal history which in Australia spans the period between 1981 - 1988 in which he committed a number of offences that could be described broadly as being drug related and traffic related. The offences were sufficiently serious to attract varying terms of imprisonment. There is no criminal record in Australia between 1988 - 2000 which, I am told from the pre-sentence report, is mainly because Mr Wallace was periodically living in Thailand during this period.

14 In 2000 Mr Wallace was convicted of the offence of importing prohibited imports into Australia, which was the offence of importation of heroin, and also convicted of possessing a falsified foreign passport. On 13 December 2000 in the Melbourne County Court, Mr Wallace was sentenced to 7 years imprisonment for the offence of importation of heroin and for the offence of possessing a falsified foreign passport, a sentence of 3 months to be served concurrently with the period of 7 years, and a non-parole period of 5 years was fixed. The sentencing judge, Holt J, also directed that a period of 200 days that had been spent in custody by Mr Wallace prior to the imposition of sentence be taken into account and deducted administratively from the sentence that he imposed: The Queen v Stephen John Wallace, Melbourne County Court, 13 December 2000 (ts 49).

15 On 17 August 2004 Mr Wallace was convicted, also in the Melbourne County Court, for being knowingly concerned in the importation of a prohibited import, again heroin, and he was for that offence sentenced to a period of 8 years cumulative upon the period of 7 years previously imposed, giving rise to a total head sentence of 15 years. The sentencing judge on that occasion set a new non-parole period of 7 years 6 months which was to commence on 13 December 2000. The net effect therefore of those sentences was that Mr Wallace was eligible for parole in 2007 and his head sentence expired on 26 May 2015, that being the period which is 15 years from the date on which he was sentenced on 13 December 2000 after deduction of the period of 200 days spent in custody.

16 Mr Wallace was given parole under s 19AL(2) of the Crimes Act by an order made on 18 July 2007 that Mr Wallace be released to parole on 1 November 2007. The offence of contempt of the Commission which in turn was dealt with as contempt of the court was committed by Mr Wallace on 11 November 2010, which is a little over three years after he had been released to parole and which was after the expiry of the supervision period of the parole on 1 November 2010. However, it was prior to the expiry of the total parole period which was to occur on 1 November 2012.

17 In addition to those offences, in October 2009 Mr Wallace was convicted in Western Australia of possessing a prohibited weapon. However, the penalty which was imposed did not have the automatic effect of cancelling his Commonwealth parole and no action was taken to cancel his Commonwealth parole as a consequence of that conviction.

18 Mr Wallace was apparently conducting his own tow truck business prior to his imprisonment for the matters with which I am now dealing. He declined to provide information relating to his family circumstances to the author of the pre-sentence report. He also declined to cooperate with psychological or psychiatric assessment, although he did provide some background information to the author of the pre-sentence report. That report suggests that Mr Wallace has over a number of years had a problem with the use of heroin and more recently had been taking antidepressant medication although it seems that that medication has ceased upon his incarceration.

19 In summary, but for Mr Wallace's prospective liability under the sentences for the Commonwealth offences to which I have referred, there is nothing in his circumstances that distinguishes him from those with whom I dealt on 4 February 2011 and therefore no reason why he should not receive the same penalty which I imposed upon them, namely the penalty of 2 years imprisonment backdated to take effect from the time when Mr Wallace was taken into custody on 13 December 2010.

20 The sentences imposed for the Commonwealth offences to which I have referred give rise to a question under s 19AQ of the Crimes Act. That section provides, relevantly, that:

Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than three months in respect of a federal, State or territory offence committed during the parole period, the parole period is taken to have been revoked upon the imposition of the sentence or sentences.

21 On behalf of Mr Wallace it is submitted that this section does not apply because the offence of which he has been convicted is not, relevantly, a State offence. That submission, in my view, must be rejected for the following reasons. The offence of which Mr Wallace has been convicted is created by the provisions of the CCC Act, which is of course an Act of the Parliament of Western Australia. The CCC Act draws a distinction between offences that are created by the Act and conduct which the Act requires be treated as a contempt of the Commission, which can then be dealt with by this court as if a contempt of court, but not in such a way that would lead to the extraordinary conclusion that contempt of court is not an offence against the law of the State of Western Australia. The particular provisions which resulted in Mr Wallace's conviction are s 160(1)(b) of the CCC Act which provides that:

A person served with a summons under section 96 requiring the person to attend and give evidence who fails to answer any question relevant to the investigation that the Commission requires the person to answer is in contempt of the Commission.

22 Section 163 of the CCC Act provides in subsection (3) that where a certificate is presented under subsection (1) of that section, to the effect that a contempt of the Commission has been committed, the Supreme Court has jurisdiction as if the contempt were a contempt of that court; so that by an Act of the Parliament of Western Australia the offence of contempt of court is created through the statutory mechanisms that I have described.

23 There is, in my view, no doubt that the offence of contempt of court is an offence against the law of the State of Western Australia. That is clear from s 7 of the Criminal Code Act 1913 (WA) which provides that:

Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court'.

24 That section makes clear that contempt of court is an offence against the law of Western Australia, being the common law of Western Australia that was incorporated into Western Australian law upon the foundation of the colony and which is preserved by s 7 of the Criminal Code Act.

25 As I mentioned in CCC v Allbeury & Ors [9], by virtue of s 3 of the Sentencing Act that Act does not apply to sentences imposed for contempt of court. That provision tells one nothing on the subject of whether contempt of court is relevantly an offence against the law of the State. In my view, it is clear that the offence of contempt of court is an offence against the law of the State of Western Australia, with the consequence that s 19AQ is invoked if, as I propose, I impose a sentence of more than 3 months imprisonment in respect of Mr Wallace's conviction for contempt of court.

26 The consequence of the imposition of such a sentence is that the parole that Mr Wallace was granted in 2007 is automatically revoked upon the imposition of the sentence that I propose to impose today. Two questions then arise. The first is the period for which Mr Wallace remains liable to serve the sentences that were imposed for the two offences to which I have referred, and the second question is whether I should impose a non-parole period in place of that which was imposed by the Melbourne County Court in 2004, per s 19AR of the Crimes Act, and if so, what that period should be.

27 On the first question, that is the period for which the warrant should be issued in respect of the outstanding period to be served in respect of the Commonwealth offences, each of counsel for the Commission and counsel for the Commonwealth submit that the warrant should be issued for the remaining period of the head sentence without regard to the events that have occurred with respect to the grant of parole and his subsequent conviction, that is, for the period extending up to and including 26 May 2015.

28 I must confess that despite taxing each of counsel for those parties with the reasons for that conclusion, I still do not understand it. However, it is clear that each of those parties submit to me that that is the period for which the warrant must be issued, as counsel for each said in unequivocal terms. It may be that one or other of s 19AA(2) or (3) of the Crimes Act achieves that result together with s 23 of the Transfer of Prisoners Act 1983 (Cth): see X v The Queen (1993) 116 FLR 110, 118 (Murray J). Counsel have submitted that there is no question of discretion involved in fixing the issue of a warrant in relation to the outstanding period to be served in respect of the sentences imposed in the Melbourne County Court, so the warrant will either be correct or incorrect. Given the stance unequivocally adopted by both counsel for the Commission and the Commonwealth, it seems to me to be appropriate to adopt that position and to issue the warrant in respect of the outstanding period of the Commonwealth sentence requiring Mr Wallace to serve the balance of that term which is up to and including 26 May 2015, and I will do so. I note also that this result coincides with the outcome which would ensue if s 71 of the Sentence Administration Act 2003 (WA) applies to the consequences of the revocation of Mr Wallace's parole, which seems to me to be appropriate.

29 Turning then to the question of the non-parole period which I am required to consider fixing under s 19AR(3) of the Crimes Act as a consequence of the expiry of the previous parole period and the revocation of the parole granted under that sentence, s 19AA(3) of the Crimes Act requires me to take into account the period of time spent by Mr Wallace on parole before the parole order is revoked. In this case that requires me to take into account the fact that Mr Wallace spent a little over three years on parole prior to the commission of the offence that has brought him before the court today.

30 That is a substantial period of time spent on parole. It is a period that exceeds the period of parole that would be available under the laws of the State of Western Australia, and the consequence of the revocation of parole is to expose Mr Wallace to the risk that parole may not be granted upon the expiry of any non-parole period that I might set in relation to the Commonwealth offences.

31 I take into account the fact that the court which imposed a non-parole period in 2004 considered that a total period of seven and a half years prior to eligibility for parole adequately reflected the appropriate balance between the culpability involved in the two Commonwealth offences of which Mr Wallace had been convicted and the desirability of encouraging Mr Wallace's rehabilitation by providing for a substantial period of parole. In my view the circumstances of the offence of contempt of court do not undermine or seriously jeopardise that process of reasoning, with the result that I should set a new non-parole period, and a period which reflects that view.

32 It also seems to me that principles of parity are apt, and that if I were to impose a non-parole period that was greater than the period that I propose to impose for the offence of contempt of court, Mr Wallace would necessarily end up serving a greater period in custody than the other four contemnors with whom I dealt on 4 February 2011. Of course that remains a significant prospect for Mr Wallace because whether or not he is granted parole at the expiry of any non-parole period that I now set will be a matter for the Commonwealth Attorney-General and/or his delegate.

33 So the consequence of Mr Wallace's conviction of the offence of contempt of court, and in particular the consequence of the sentence that I propose to impose, is in a very real sense to expose Mr Wallace to the additional jeopardy of having to serve either the whole or some part of the remaining period of imprisonment that remains to be served in respect of the Commonwealth offences of which he was convicted. That seems to me to be a very real additional penalty which takes this case outside the cases in which a purely concurrent sentence could be said to show no reflection of the criminality involved in the commission of the offence. In the circumstances of this case it is appropriate to order that the sentence which I will impose for contempt of court be served concurrently with the outstanding sentences for the Commonwealth offences to which I have referred.

34 So for those reasons what I propose to do is to impose the same sentence as was imposed upon the other four contemnors, and to issue a warrant under s 19AS of the Crimes Act for the remaining period to be served under the Commonwealth offences expiring on 26 May 2015. I also direct that under s 19AR(3)(d) of the Crimes Act, Mr Wallace be eligible for parole upon the expiry of the term that I propose to impose for contempt of court, which I will order to be served concurrently with the outstanding sentences for the Commonwealth offences.

35 Mr Wallace, would you stand, please? Stephen John Wallace, for the offence of contempt of court I sentence you to a term of 2 years imprisonment, to be backdated so as to take effect on 13 December 2010. In respect of the Commonwealth offences of which you were convicted, there will be a warrant issued, having the effect that you will remain liable to serve those sentences up to and including the period of 26 May 2015. The sentence for contempt will be served concurrently with the sentence for those offences under the Crimes Act and I will set a new non-parole period in respect of those offences, so that you will be eligible for parole on 13 December 2012. Whether or not you get parole on that occasion will of course be a matter for the Commonwealth authorities.