DPP (Cth) v Haunga [2001] VSCA 73

Solicitor for the Director of Public Prosecutions (Cth)

2. The Commonwealth Director of Public Prosecutions appeals in reliance on s.21E(2) of the Crimes Act 1914 against the inadequacy of a sentence passed on the respondent in the County Court, being of opinion that the appeal should be brought in the interests of the administration of justice. The gist of the appellant's complaint is that the respondent received a reduced sentence on the footing that he undertook to give evidence for the Crown against a co-offender, one O'Neill, and that, when the time arrived for him to give his evidence at O'Neill's trial, he refused without reasonable excuse to do so.

5. The sentence now complained of followed the respondent's plea of guilty in the County Court on 10 June 1999 to one count of being knowingly concerned in the importation of a prohibited import, namely amphetamine, contrary to s.233B(1)(d) of the Customs Act 1901. After a plea in mitigation, upon which he gave his undertaking on oath to co-operate with the Crown, he was sentenced by Judge Keon-Cohen on 10 June 1999 to be imprisoned for three years. His Honour made a recognizance release order conformably with s.19AC of the Crimes Act 1914, ordering pursuant to s.20(1)(b) that, upon entering into a recognizance to be of good behaviour for twelve months, the respondent be released after serving twenty-four months of the sentence. In passing sentence the learned judge said -

"Were it not for the future co-operation promised by the prisoner, I would have imposed a sentence of four-and-a-half years' imprisonment with a non-parole period of three-and-a-half years. However, by reason of the provisions of section 21E of the Act, I state that I have reduced both the sentence and the non-parole period."

As appears, his Honour tended to equate the period stipulated in the recognizance release order (specified and defined in s. 16(1) of the Commonwealth Crimes Act as the "pre-release period") with a non-parole period. The minor mis-use of terms was of no significance but I mention it now having regard to an argument put on behalf of the respondent, to which I shall later refer, that sought to draw upon the distinction between, on the one hand, an order fixing a non-parole period and, on the other, a recognizance release order. The judge noted in his sentencing remarks that at the time of sentence the respondent had been in custody since his arrest on 5 January 1999; that on 22 April 1999 he had been convicted in the Magistrates' Court of unrelated offences and sentenced to be imprisoned for three months; and that he had thus served 108 days' imprisonment ¯ from 5 January until 22 April ¯ with respect to the Commonwealth offence. His Honour accordingly directed in effect that the sentence he imposed should commence on 21 July 1999 (i.e. three months after the imposition of the sentence in the Magistrates' Court) and declared that 108 days of the sentence for the Commonwealth offence had already been served.

10. The Crown case against the respondent on the Commonwealth offence for which he was sentenced was in substance this. In November 1998 he acceded to a request by O'Neill, a friend of his, that a parcel O'Neill was arranging to have sent by air from overseas should be addressed to the respondent care of the Mallacoota Post Office and there collected by him for O'Neill. Some weeks later the parcel, addressed to the respondent, was intercepted by customs officers upon its arrival at Tullamarine. It was found on examination to contain 947.1 grams of a substance consisting of 43.6 per cent amphetamine - 412.9 grams of amphetamine by calculation. Part of the substance was removed by the customs authorities and replaced by inert material, and the reconditioned parcel was taken by police officers to the Mallacoota Post Office for the purpose of a "controlled delivery". On 5 January 1999 the respondent collected the parcel at the post office, believing it to contain narcotics, and he thereupon telephoned O'Neill in Melbourne to tell him that he had it. In response O'Neill undertook to travel on the following day by train and bus to Genoa, and the two arranged that the respondent should go there by car to meet him with the parcel. After he made the telephone call the police, who had had him under surveillance, apprehended and interviewed the respondent. He made admissions to police and agreed to assist them. On the next day, 6 January, an audio cassette recorder was concealed on him with his consent and he travelled with police to Genoa. A conversation he had there with O'Neill upon meeting him was surreptitiously recorded and, later in the day, the two were arrested. O'Neill made no admissions.

13. The maximum penalty, by virtue of s.235 of the Customs Act 1901, for the offence to which the respondent pleaded guilty (the amount being not less than a trafficable amount) was 25 years' imprisonment and a fine of $100,000. In the course of giving evidence on his plea on 4 June 1999 the respondent swore that he was prepared to give evidence, substantially in accordance with a statement he had made to the police, in a criminal prosecution against O'Neill. Further, he acknowledged that if he were to go back on his promise "... I can be brought back before the court and re-sentenced, so to speak", which would mean "Quite a substantial amount of time".

16. On 24 June 1999 the respondent was called to give evidence in committal proceedings against O'Neill and did so, acknowledging the correctness of his police statement and submitting to cross-examination and re-examination, following which O'Neill was committed for trial. On 3 May 2000 the respondent was called to give evidence at O'Neill's trial before Judge Smith in the County Court but he refused to be sworn or to make an affirmation, indicating that he would not be giving evidence. The trial was aborted and Judge Smith later sentenced the respondent to 12 months' imprisonment for contempt of court.

19. On its face the present appeal looks straightforward enough, but the legislative provisions which authorise and attend it offer unexpected perplexity. We were told that this is the first appeal that has been brought in this State under s.21E of the Commonwealth Crimes Act and the first time that an appellate court has had to consider s.21E(3)(b) and that there is little authority upon the section as a whole. Its provisions had better be set out in full -

" 21E. (1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must: (a) if the sentence imposed is reduced - specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and (b) if the non-parole period is reduced - specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction. (2) Where: (a) a federal sentence is imposed or a federal non-parole period is fixed; and (b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and (c) after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking; the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period. (3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal: (a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and (b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate. (4) In subsection (1): "confiscation proceedings" includes a reference to proceedings for forfeiture orders, pecuniary penalty orders and restraining orders under the Proceeds of Crime Act 1987 and to restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901."

23. Section 21E, while not itself authorising the concept of a reduction of sentence on account of the offender's undertaking to co-operate with a law enforcement agency, both recognises such a concept and provides for certain consequences of its application. Thus, the sentencing judge's statement that I have quoted in paragraph [2] was evidently intended to be made in compliance with sub-s.(1); and this appeal can succeed if, but only if, it is shown that the respondent, without reasonable excuse, did not co-operate in accordance with his undertaking: sub-s.(2)(c). If there was a failure without reasonable excuse to co-operate, different consequences may follow according as to whether the failure was entire or partial. It therefore falls to this Court hearing the appeal to make findings of fact.

26. Debate during the hearing of the appeal revealed a number of questions arising from the uncertain terms of s.21E and upon the factual circumstances surrounding the appeal with which counsel on either side felt unable then to deal. After an adjournment, during which the matter was referred also to the Victorian Director of Public Prosecutions for comment, we have been assisted by written material received from all three sources.

29. The respondent raised as a threshold issue the question whether s.21E(3) applies at all in this case, where the sentencing judge made a recognizance release order pursuant to s.19AC, and submitted that it does not. The argument was that, while sub-ss.(1), (2) and (3) of s.21E all refer to a "sentence" and a "non-parole period" that was reduced on account of the prisoner's promise of co-operation, there is no reference to the reduction for that reason of a recognizance release order. Further, as it was submitted, sub-s.(3) confers no jurisdiction in terms upon an appeal court to increase the period of a recognizance release order. The appellant seeks by the appeal to achieve, among other things, such an increase and the respondent's submission is that there is no power conferred by subs.(3) by which to produce it.

32. I can see no merit in the submission. By s.16(1) "federal sentence" is defined to mean, unless the contrary intention appears, "a sentence imposed for a federal offence". By the same provision "sentence" in ss.16B to 19AZ is defined, subject to the same proviso, to mean "a sentence of imprisonment". Where a sentence of imprisonment is imposed for a federal offence s.19AB requires the sentencing court to fix (no doubt by order) a non-parole period or to make a recognizance release order. Where the sentence imposed does not exceed imprisonment for three years and the prisoner is not already serving or subject to a federal sentence, the court is required not to fix a non-parole period but to make a recognizance release order: s.19 AC. In the present case, therefore, the sentence imposed having been one of imprisonment for three years, the judge had no option but to make a recognizance release order, and this his Honour did. Plainly enough, the recognizance release order was not itself a sentence of imprisonment, although it was an order necessarily ancillary to the sentence that was imposed, directing the release of the prisoner, upon his giving security, after he had served a portion of the sentence of imprisonment. On any view, therefore, the respondent was amenable to an appeal pursuant to sub-s.(2) of s.21E, having had imposed upon him a federal sentence that was reduced for the reason specified in sub-s.(1). It is, I consider, not to the point that s.21E makes no mention of a recognizance release order. If the appeal were allowed in a case such as the present, where a recognizance release order had been made below, the original sentence would be set aside and the recognizance release order would naturally go with it. Depending on any sentence imposed by it in substitution for the original sentence, the appeal court would be obliged either to fix a non-parole period (if that were an available option) or to make a fresh recognizance release order .

35. It was not contended for the appellant that the respondent failed entirely to co-operate in accordance with his undertaking. Nor was it was contested for the respondent that he did fail in part so to co-operate, but it was a live question on the appeal whether he had failed to do so without reasonable excuse. Presumably the onus of proving a want of co-operation without reasonable excuse lies ultimately on the appellant, and counsel for the respondent has submitted that in this case an absence of reasonable excuse has not been shown. I should be prepared to presume further, without deciding the question, that the standard of proof required is proof beyond reasonable doubt[1] for I am well satisfied that, by any standard, a want of reasonable excuse is proved.

38. At O'Neill's trial the respondent, having been called into the witness box to give evidence on the voire dire, was asked to state his name preparatory to being sworn and responded simply by saying "I'm not answering any questions, sorry." For taking that course he gave no explanation. When brought before Judge Smith on 25 May last upon a charge of contempt of court he was represented by counsel who, on his behalf, admitted the contempt alleged. The respondent gave no evidence in that proceeding but his counsel tendered, and the judge received, a written statement by a Federal Agent of the Australian Federal Police which summarised two conversations she had had with the respondent in the County Court holding cells. The first was on the day before he had been called as a witness at O'Neill's trial. The gist of that conversation was that he told her he did not want to give evidence and that he had not felt well after giving evidence at O'Neill's committal proceedings. The second conversation was had the next day in the course of which the respondent reiterated his wish not to give evidence at the trial and stated that, after he had given evidence at O'Neill's committal, "he froze and the guards had to carry him on to the bus; and that he considered suicide later that night in his cell and had seen a doctor three or four times as a result." The respondent's counsel, save for conveying his client's instructions that he was "a nervous wreck" and stating that "...he was completely addled by the committal" and that "he cannot articulate why that affected him the way it did...can't provide a reason...", was not able to offer Judge Smith any explanation for the refusal to give evidence. The only fair inference to be drawn from such information as there was is that the respondent was frightened or apprehensive about the consequences to him (or perhaps others) of his giving evidence. That, however, cannot by itself be treated as a "reasonable excuse" in terms of s.21E: as was in effect pointed out in R v Parsons[2], the jeopardy in which the respondent would or could place himself by giving evidence was one of the factors that would have led the sentencing judge to reduce the sentence that he would otherwise have imposed. The inevitable conclusion must therefore be that the facts demonstrate an absence of reasonable excuse for the respondent's failure to co-operate in accordance with his sworn undertaking.

41. As a matter of formality the appellant has accordingly established an appropriate basis for the Court's allowing the appeal. The manner of exercise of the jurisdiction conferred by sub-s.(3)(b) of s.21E, under which the Court "...may substitute for the reduced sentence...such a sentence not exceeding in length the sentence that could be imposed...under paragraph (a), as it thinks appropriate..." raises, however, a number of nice questions.

44. The permissive but indefinite words "may substitute...such a sentence...as it thinks appropriate" suggest the question whether they confer on an appeal court merely a simple discretion or whether they authorise and require, if stipulated conditions be fulfilled, the exercise of a power. In R. v YZ[3] Beazley, J.A. treated sub-s.3(b) as conferring "...a discretion as to the sentence to be imposed, not exceeding the sentence which the sentencing judge would have imposed but for the undertaking." It is true that, when paragraph (b) of sub-s.(3) is compared with paragraph (a), the former evidently confers on the appeal court an option of a kind that the latter does not. Section 33(2A) of the Acts Interpretation Act 1901 of the Commonwealth[4] (for a reference to which I am obliged to Callaway, J.A.) is, if it falls to be applied unaffected by the context of s.21E(3), also apt to support the exercise of a simple discretion. That is not necessarily to say however, as it seems to me, that "may" is apt to confer a mere discretion, without an influence upon it of its collocation with "as it thinks appropriate". The latter might very well indicate a requirement of "the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper". Indications tending to such an interpretation are discussed in Mitchell v. The Queen,[5] from which the phrase just quoted is taken. Be all that as it may, a decision defining and classifying to a nicety the jurisdiction conferred by s.21E(3)(b) is another that I have no need to make. On any view the proper exercise of the jurisdiction in this case requires the making of a value judgment, and the striking of a balance, in order to determine what sentence (up to four-and-a-half years' imprisonment) is appropriate in the light of the relevant events that have happened since the imposition of the original sentence. Counsel for the appellant fairly submitted that this Court is not empowered by s.21E to re-consider the appropriateness of the original sentence, but only to substitute a sentence that properly reflects all relevant circumstances surrounding the respondent's failure to co-operate in accordance with the undertaking that led to the reduced sentence. That submission is clearly correct; and there was no submission contrary to it for the respondent.

47. Counsel for the respondent submitted, and counsel for the appellant conceded, that the principle of totality applies to a substituted sentence that this Court might impose. That being so, the question arises whether and to what extent the sentence for contempt that was imposed by Judge Smith should affect any sentence that we might impose by virtue of s.21E.

50. It appears to be common ground on all sides that the offence of contempt in the face of the County Court, for which the respondent was convicted and sentenced, was one committed against the law of Victoria, and this notwithstanding that the Court was at the time that the offence was committed exercising federal jurisdiction; and we should proceed on that view.[6] Consistently with the reasoning of Winneke, P. in Rich v. A-G,[7] s.16(4) of the Sentencing Act 1991[8] of this State therefore applied to the sentence. Evidently seeking to comply with the requirements of s.16(4), Judge Smith expressed himself as follows ¯

"You are presently undergoing a sentence for an offence against the law of the Commonwealth. Accordingly, pursuant to s.16(4) of the Sentencing Act of Victoria, I direct that the sentence that I have imposed commences immediately after the end of the non-parole period of 24 months which was fixed by Judge Keon-Cohen when sentencing you on 10 June 1999."

The direction requires some interpretation. In strictness its wording was inaccurate because, even though, in the context I have indicated in paragraph [2], Judge Keon-Cohen did (also inaccurately) refer to a "non-parole period", he did not fix a non-parole period: indeed, his Honour had in the circumstances no power to do so. Again Judge Smith's inaccuracy is not itself of significance, for s.16(4) draws no relevant distinction between a non-parole period and a pre-release period, and it is clear enough that his Honour intended to refer to the order that Judge Keon-Cohen actually made. Judge Smith's direction is, however, not otherwise unambiguous: his Honour was made aware, before sentencing the respondent, that a Crown appeal was to be brought against the sentence that had been imposed by Judge Keon-Cohen, and must also have been aware that there was a prospect that that sentence might be set aside and a fresh recognizance release order made or, if appropriate, a non-parole period fixed. The appellant concedes that the language used by Judge Smith leaves it not altogether clear whether his Honour should be taken to have intended to direct that the sentence for contempt was to begin, on the one hand, immediately after the respondent had served 24 months' imprisonment of the sentence imposed by Judge Keon-Cohen or, on the other, to begin so as to be served cumulatively upon the sentence for the Commonwealth offence that he was undergoing, whatever that was or might become as the result of an appeal.

55. As counsel for the appellant has frankly conceded, the sentence imposed by Judge Smith was no doubt a lawful sentence. It cannot be altered by this Court in the present appeal; and any intractable ambiguity attaching to it should be resolved (for the purpose of the appeal) in favour of the respondent.

58. Neither the oral nor the written submissions for the respondent considered the manner in which the direction made by Judge Smith should be interpreted. Rather, in their written submission, counsel for the respondent contended that, if this Court were to set aside the sentence imposed by Judge Keon-Cohen, the sentence imposed by Judge Smith would be "unworkable" because the latter is expressed to "attach to" the former. The purpose of the submission was not entirely clear. I take it, however, to have been designed to dissuade this Court from interfering with the former sentence rather than to induce us to set it aside and thus to nullify the latter. Whatever the aim of the submission, I am unable to accept it. The "non-parole period of 24 months which was fixed by Judge Keon-Cohen" mentioned in Judge Smith's direction does not, of course, refer to or describe any actual and discrete period of 24 months identifiable in a calendar: the actual time covered by the period specified was in fact attenuated, to commence on 22 July 1999 but to end 24 months less 108 days later. The reference to the "...period of 24 months" was, therefore, on any view a kind of shorthand. It should in my opinion be taken to refer to the pre-release period specified by Judge Keon-Cohen, the intention of Judge Smith having been, as I discern it, to provide that the sentence for contempt should be served cumulatively upon such part as the respondent was obliged to serve of the sentence for the Commonwealth offence for which he had been sentenced on 10 June 1999. Such an intention can be inferred from, among other things, the knowledge that Judge Smith had that an appeal by the Crown was in prospect: it is not lightly to be supposed that his Honour was casting his direction in terms such as would render the sentence he was imposing nugatory if the sentence for the Commonwealth offence and directions ancillary to it were to be set aside on appeal. Nor is it appropriate that Judge Smith's direction be read with the strictness that the submission for the respondent would require, as if it were in a statute or a will. It is entirely reasonable, notwithstanding that its pronouncement was ancillary to the imposition of a term of imprisonment,[9] that the direction be understood to have been made in order to give it a workable operation rather than that the learned judge be taken to have selected a meaning for his words which would or might render the direction a nullity: ut res magis valeat quam pereat, "a rule of common law and common sense"[10]. The same conclusion may be reached by treating the words used by Judge Smith in his direction as descriptive rather than prescriptive ¯ adjectival rather than substantive ¯ that is to say, as incorporating by reference the whole of the period necessarily to be served of the sentence in respect of the Commonwealth offence to which he had pleaded guilty, thereby intending that the sentence for contempt should not begin until the respondent had served all that he was obliged to serve of the sentence for the Commonwealth offence that he had committed.

61. I have no doubt that the sentence imposed by Judge Keon-Cohen has become inadequate and that, in allowing the appeal, we should set it aside and re-sentence the respondent, imposing an appropriately increased sentence. The ceiling, by virtue of paragraphs (a) and (b) of s.21(E)(3), read together, is imprisonment for four years and six months, with a minimum term (to be achieved by the fixing of a non-parole period or the provision for a pre-release period by the making of a fresh recognizance release order) of not more than 3 years and six months. We should proceed on the footing that the respondent will be obliged to serve his sentence of 12 months for contempt immediately after he has served the minimum term for which we provide. Although we can not alter the term of the sentence imposed by Judge Smith we can, of course, affect the time at which it is to commence by adjusting the term of the sentence that we impose, thereby achieving the effect of a measure of concurrency to the extent that that is appropriate.

64. Counsel for the respondent contended that we should give effect to a practice commonly applied upon a Crown appeal whereby the court, in re-sentencing the offender, will temper what is sometimes called an element of "double jeopardy" by imposing a sentence that is somewhat less than it considers was merited at first instance_._ The notion is as exemplified and explained in such authorities as R. v. Clarke[11] , R. v. O'Rourke[12], R. v. Laffey[13] and R. v. SBL[14]; and it can be justified by way of making an allowance to the offender, as a matter of humanity, for being re-submitted to the ordeal of sentencing by reason of a want of application of proper sentencing principles in the first place. There is no room for reasoning in that way in a case where the appeal is brought and the sentence is increased under s.21E of the Crimes Act 1914 ¯ not , at least, in this case. There is no reason to suppose that the County Court sentence for the Commonwealth offence was inadequate when imposed. The Crown's right of appeal, and the success of the appeal, depend upon circumstances entirely of the respondent's own making, for which he alone is responsible and for which, ex hypothesi, he has no reasonable excuse. The terms of the section itself appear in any event to be inconsistent with the principle relied on for the respondent. Paragraph (a) of sub-s.(3) leaves no room, by reference to "double jeopardy", for the imposition on appeal of a lesser sentence than that which the judge at first instance would have imposed but for the respondent's undertaking to co-operate; and it is difficult to see any logic in a distinction that would require or allow the application of the principle when the re-sentencing depends on paragraph (b).

67. The sentence that we impose cannot exceed that which the County Court judge specified he would have imposed but for the respondent's undertaking. It might or might not be a lesser sentence than that so specified by the judge. With a view to persuading us that we should impose a lesser sentence, the respondent is of course entitled to point to such co-operation as he gave and to any other circumstance tending to minimise the seriousness of the repudiation of his undertaking in terms of its circumstances (remembering that there was no reasonable excuse for it) and consequences. We have no doubt to make an evaluation of these things as a matter of overall impression and estimation, taking account, for example, of the extent to which the Crown and the community have been disadvantaged by the respondent's repudiation. At the very least it may be said that one trial was aborted and money therefore wasted by reason of the respondent's conduct. There is no evidence of the effect of the repudiation on the Crown's ability to prove a case against O'Neill at trial, but clearly enough it must have suffered some disadvantage. The transcript indicates that Judge Smith proposed to empanel another jury but we do not know whether that was done or, if it was, the result of any subsequent trial. Our re-sentencing task is rendered the more difficult in the absence of information of this kind, but we should proceed, I think, on the footing that the respondent's breach was a serious one, going to the

heart of the considerations that justified the leniency shown him by the learned judge.

71. Having regard to s.16B(a) of the Crimes Act 1914 and the common law principle of totality I propose that, the sentence imposed on the respondent below for the Commonwealth offence being set aside, he be re-sentenced for that offence to be imprisoned for three years and nine months. We were not pressed for the appellant to fix a non-parole period pursuant to s.19AB of the Crimes Act 1914 and I do not propose that we do so. I propose that a fresh recognizance release order be made pursuant to s. 20(1)(b) of the said Act that, upon entering into a recognizance in the sum of $500 to be of good behaviour for two years, the respondent be released from Commonwealth custody after serving two years and nine months of the sentence. With a view to avoiding uncertainty it may be convenient to note that, conformably with R. v. Jennings[15] and s.16E of the Crimes Act 1914, the sentence is to be taken to have begun on 21 July 1999. We should declare pursuant to s.18(4) of the Sentencing Act 1991 that the period of 786 days be reckoned as already served under the sentence and order that there be noted in the records of the Court the fact that such declaration was made and its details.

[1] As Sully, J. appears to have assumed (with the concurrence of Beazley, J.A and Dunford, J.) in R. v. YZ [1999] N.S.W.C.C.A. 263, at para.[20].

[2] (1992) 74 A.Crim.R. 172, at 176, a decision of the Western Australian Court of Criminal Appeal.

[3] [1999] NSWCCA 48; (1999) 162 A.L.R. 265, at para.[5].

[4] 33(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

The provision is prima facie applicable here, having been inserted by Act No. 141 of 1987 and therefore preceding the assent to Act No. 4 of 1990 by which s.21E was inserted.

[5] [1996] HCA 45; (1996) 184 C.L.R. 333, at 345-7.

[6] R. v. Fletcher; Ex p. Kisch [1935] HCA 1; (1935) 52 C.L.R. 248 [8 A.L.J. 390], Evatt, J. at 256-257; R. v. B. [1972] W.A.R. 129 [20 F.L.R. 368] (F.C.); Skouvakis v. Skouvakis [1976] HCA 39; [1976] 2 N.S.W.L.R. 29 [11 A.L.R. 204; 1 Fam. L.R. 11,516] (C.A.); Douglas v. Douglas [1976] Qd.R. 75 [10 A.L.R. 285]; D.P.P. v Australian Broadcasting Corporation (1987) 7 N.S.W.L.R. 588 [86 F.L.R. 153] (C.A.); United Telecasters Sydney Ltd. v. Hardy (1991) 23 N.S.W.L.R. 323 (C.A.), Samuels, A.P. (Clarke and Meagher, JJ.A. concurring) at 339. The offence constituted by the contempt has been said to stand outside the federal proceeding, which is "merely the occasion for the offence": R. v. B. [1972] W.A.R. 129 [20 F.L.R. 368] (F.C.), Hale, J. at 132.

[7] [1999] VSCA 14; (1999) 103 A. Crim. R. 261, at 282.

[8] "16(4) A court that imposes a term of imprisonment for an offence against the law of Victoria on a person already undergoing a sentence or sentences of imprisonment for an offence against the law of the Commonwealth must direct when the new term commences which must be no later than immediately after -

(a) the completion of that sentence or those sentences if a non-parole period or pre-release period (as defined in Part 1B of the Crimes Act 1914 of the Commonwealth) was not fixed in respect of it or them; or

[9] Albeit in a non-criminal proceeding brought pursuant to Order 75 of Chapter I of the Rules of Civil Procedure in Civil Proceedings of the County Court.

[10] Langston v. Langston [1834] EngR 190; (1834) 2 Cl. & F. 194, at 243; [1834] EngR 190; 6 E.R. 1128, at 1147, per Lord Brougham, L.C.; adopted by Isaacs, J. in Fell v. Fell [1922] HCA 55; (1922) 31 C.L.R. 268, at 275.

[11] [1996] VICSC 30; [1996] 2 V.R. 520, at 522.

[12] [1997] 1 V.R. 246, at 255.

[13] [1998] 1 V.R. 155, at 161.

[15] [1998] VSCA 69; [1999] 1 V.R. 352; and see R. v. Ngui and Tiong [2000] VSCA 78 at para.[15];

R. v. Ibrahimoff [2001] VSCA 46.