LAZ24 v Purcell

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The appellant brings an application for a stay of the orders of the primary judge in Purcell (Examiner) v LAZ24 [2025] FCA 413. The relevant orders are:
   1. The Respondent is sentenced to a term of imprisonment of 9 months, to commence on [REDACTED] and end on [REDACTED].

...

1. There be liberty to apply, in the event that the Respondent purges his contempt before 12 December 2025.

1. The appellant filed a notice of appeal on 27 May 2025 and moved before me as Duty Judge on 8 August 2025 on an amended "Bail/Stay application." Affidavits from the appellant's wife, and his solicitor were read, as well as reports from his psychiatrist.
2. The appellant is in custody for a period of 9 months, and his appeal is being heard by the Full Court in 10 days' time, being 22 August 2025. He pleaded guilty to the offence of contempt of the Australian Criminal Intelligence Commission pursuant to s 34A of the Australian Crime Commission Act 2002 (Cth) (ACC Act). He was sentenced on 29 April 2025, and the period of custody extends beyond the duration of the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (Determination) which expires on 12 December 2025.
3. The proceedings, although styled as an application for bail, proceeded on the basis that the relevant power was for a temporary stay pending appeal pursuant to rr 1.41 and 36.08 of the Federal Court Rules 2011 (Cth) (FC Rules). The application was not brought by way of exercise of the liberty to apply, it being noted in submissions by the appellant that:

Whether there is jurisdiction for a release application in relation to a charge of statutory contempt pursuant to s 34A of the Australian Crime Commission Act is an uncertain matter; Sage an examiner appointed under s 46B of the ACC Act 2002 v ZZ [2015] FCA 417, [24].

1. As proceedings for contempt under s 34B of the ACC Act are not criminal proceedings (see s 34B(6)), and in any event criminal contempt proceedings ordinarily are not criminal proceedings (see Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [65] per Nettle J), it seems to me that unless a specific provision under which bail provisions apply to this particular matter can be applied, the better way to proceed is by way of the Court's jurisdiction to order a stay. See also Katzmann J in Kazal v Thunder Studios Inc (California) [2017] FCA 238 at [52] (citing Rares J in Vu v New South Wales Police Service [2007] FCA 1192 at [2]). I regard the power in r 36.08(2) as enabling me to order a stay of the orders of the primary judge which would have the effect of the release of the appellant from custody (see Kazal at [40]).
2. The appellant seeks a temporary stay, up to and including the hearing of the appeal, after which it is proposed the Full Court could end or continue any stay granted. The appellant provided proposed conditions sought by the appellant which included restrictions as to his residence and movement, to be of good behaviour, and to appear before the Full Court on 22 August 2025.
3. The appellant seeks release pursuant to the stay on the following grounds, none of which were subject to any factual contest by the respondent:

(a) His [REDACTED], who is [REDACTED] years old, is [REDACTED], and has been released from hospital. While no doctor has given any prediction of his life expectancy, it is clear that he is very unwell and that "no further care ... could be provided" medically. He needs significant daily care which is being provided by his own wife, who is also elderly and unwell, and by the appellant's wife.

(b) The appellant's wife is struggling with the care of her [REDACTED], her finances, her family responsibilities with [REDACTED] children aged [REDACTED], and is on Centrelink benefits.

(c) The appellant suffers from obstructive sleep apnoea, and, according to a report from a psychiatrist which was prepared for the hearing before the primary judge, is suffering from "an adjustment disorder, or a clinically significant response to an adverse life event", with depression, anxiety, and panic attacks as part of that disorder. The updated psychiatric report of 25 July 2025 reports that he had 21 days in isolation during which he did not have access to his CPAP machine. The diagnosis of the psychiatrist in the updated July report, taking into account the effect of isolation, was "adjustment disorder, with anxiety and depression". In July 2025, the psychiatrist thought that he was:

[i]f anything ... a little better by the time of the recent interview, as he appeared to have become resigned to his situation ... [h]owever, he was visibly agitated and obviously distressed when discussing his [REDACTED]'s condition.

1. The appellant relies in his written submissions on the following matters:

(a) The critical health status of the appellant's [REDACTED];

(b) The need to prepare for the appeal;

(c) To ensure that any orders of the appeal court are not frustrated by the appellant serving a "disproportionate" portion of the sentence served prior to release;

(d) Analogously with a bail application, the appellant would be likely to receive bail (this argument was based on ss 16A, 17, 18 and 62 of the Bail Act 2013 (NSW); and

(e) The conditions proposed which would protect the possible risks of a stay.

1. During the hearing, the appellant's counsel made an additional submission that the evidence disclosed that the appellant was not able to access his CPAP machine and so was not having his medical needs adequately attended to while being detained.
2. The respondent's position was that, as there was an apparent lack of likelihood of success on the appeal, and that most of the compassionate or discretionary grounds relied upon by the appellant were foreseeable results of his incarceration, no stay should be granted.

1. Rule 36.08(2) of the FC Rules provides that an appellant may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined. Pursuant to r 1.41, the Court has the power to grant or refuse such an order, or to make a different order. The power may be exercised by a Full Court or a single judge under s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth) (FC Act) (see Kazal at [37]-[38]).
2. The Court's discretion to grant a stay pending appeal is guided by a number of general principles.
3. The ordinary principle is that a successful party is entitled to the fruits of the judgment, and that being so, there must be sound reasons sufficient to justify the court in suspending that right (see McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369). The applicant for a stay has the burden of satisfying the court that the discretion ought to be exercised. Here, where the purpose of the incarceration is coercion (ie, seeking to have the applicant purge his contempt) rather than an adversarial contest where one party is victorious and the other is not, the concept of "fruits of the judgment" is a little more nuanced.
4. The Full Federal Court held that it is not necessary for special or exceptional circumstances to be made out (see Powerflex Services Pty Ltd v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66 following the decision of the NSW Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685). It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in his favour.
5. When exercising the discretion to grant a stay, the court will take into consideration:

(a) the prospects of success of the appeal;

(b) whether the making of an order would be oppressive in that it would stifle a reasonably arguable claim;

(c) whether there are other aspects of public interest which weigh in the balance against the making of such an order; and

(d) whether there are any particular discretionary matters peculiar to the circumstances of the case.

See Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 at [5].

1. In considering the prospects of the appeal, argument concerning the substance of the appeal is necessarily limited and the Court will not generally speculate upon the appellant's prospects of success. However, the Court will need to make some preliminary assessment about whether there is an arguable ground of appeal in determining the parties' rights and where the balance of convenience lies (see Kazal at [56]).

Grounds of appeal

[1] It was an error of law, and thereby occasioned a miscarriage of justice, that:

(a) a fixed term sentence was ordered, or,

(b) general liberty was not ordered where a fixed term sentence was ordered.

(a) failing to attribute weight to the unchallenged psychiatric material, and

(b) failing to acknowledge impermissible submissions on range by the Crown.

[3] The sentence imposed is manifestly excessive.

[4] Costs.

Orders sought

1. Sentence imposed to be quashed.

1. The appellant sought to engage with the grounds of appeal in fairly specific terms, relying on his substantive submissions on the appeal. The first paragraph of those submissions reads:

This appeal raises four grounds; namely, the liberty to apply that should attach when fixing a sentence term; sentencing errors, including of the types of errors featured in Barbaro and Lloyd; manifest excess; and costs.

1. As noted, the appellant seeks that the sentence be quashed, although in the reply submissions on the substantive appeal, it was contended that suspension would be appropriate. It is difficult to see (from admittedly brief argument before me) how the factors of whether liberty to apply should be linked to the purging of his contempt or more generally, given the date of the expiry of the Determination, or whether costs were ordered (noting the breadth of s 43 of the FC Act) could have an impact as to whether a term of imprisonment were properly applied, and if one or both of those arguments were successful, would result in that sentence being quashed.
2. In relation to the other grounds, the appellant characterises the appeal as covering the following matters:

(a) Errors relating to the principles in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Lloyd v R [2022] NSWCCA 18, and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, in that the prosecutor impermissibly urged for a sentence of a particular type or length.

1. In Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 (Kazal appeal), the Full Court (Besanko, Wigney and Bromwich JJ) said (at [159]):

The quasi-prosecutorial role of the respondents imposes fundamental limits on going further on penalty than assisting a sentencing court to avoid error. That may include submissions as to the type of disposition that is appropriate, such as to whether a custodial sentence was called for and perhaps whether it should include actual incarceration. But it entails refraining from advocating for any particular duration or range of sentence to be imposed: Barbaro at [29]-[33].

1. This passage arises in the context, not of determining the appeal on the ground of a breach of the principles in Barbaro, but in relation to the way in which appellate intervention on sentence should be handled.
2. The Court in the Kazal appeal said that the prosecutor in that case acted appropriately in not seeking to make submissions on the appropriate duration of the custodial term. The primary judge in this case here noted (at [62]) that because of the lapsing of the Determination, "the Applicant, appropriately, does not seek an indeterminate sentence" and, (at [68]) that "[t]he Applicant urges this Court to impose a significant fixed custodial sentence, and refers in particular to the sentences imposed in DEZ22 (No 2) ...". The submissions of the appellant in reply on the substantive appeal rely on the first statement as seeking that "a fixed term ought to be imposed". The submission was made that Barbaro was "absolute" and that "it is not appropriate to say that an indeterminate sentence is suitable or even available ... There is an absolute prohibition".
3. The respondent submitted that the position that the principles in Barbaro applied in sentencing for criminal contempt was not established in this case and that the statement of the Full Court in Kazal appeal was in fact obiter - a position reasonably easily made good by the description of a prosecutor in criminal contempt proceedings being "relevantly analogous to a prosecutor in criminal proceedings" at [159] of the Kazal appeal and noting that the prosecutor acted appropriately in not "going further on penalty than assisting a sentencing court to avoid error". Mr Williams, for the respondent, argued that nothing said by him below was an impermissible expression of personal opinion and so no offence of the Barbaro principles could be found.
4. The other main ground argued was the treatment of the medical evidence which was uncontested (in that the psychiatrist's evidence was accepted without cross-examination). The medical evidence was that the appellant was affected by his psychological issues at the time of the contempt. Counsel for the appellant handed up a recent decision of the NSW Court of Criminal Appeal in Lane v R [2025] NSWCCA 113 which, she submitted, tempered the effect of Lloyd and De La Rosa in requiring that the psychological issues have a "material contribution" rather than a "causal nexus" to the offending.
5. In Lane, the applicant's "social isolation and cognitively impacted judgement" contributed to the offences (at [111]). The trial judge regarded them as not satisfying the threshold test of direct causation. At [112], Ierace J, with whom Garling and Lonergan JJ agreed, said that it was an error to require "a direct causal connection" to be established so that moral culpability would be reduced with consequential mitigatory factors being possible (see De La Rosa at [177] (McClellan CJ at CL)). The appellant submitted that where a material contribution of a medical condition to the offending was found, there should have been no consideration of general deterrence.
6. The appellant submitted that the psychiatrist had opined that there was "a diagnosis that's present and that was found to be present at the time of the offending and to have contributed to the offending" and that the Court was not entitled to "go behind" the doctor's opinion.
7. Mr Williams, for the respondent, submitted that Lane did not demonstrate a change in the law; it merely dealt with an expression of an incorrect principle by the trial judge in a sentencing process which resulted in error. It was submitted that the primary judge in this case had proper regard to the medical evidence and found, at [50], accepting the psychiatrist's evidence, that his "mental state [did not] reduce his moral culpability to any material extent" and cited De La Rosa. It was submitted that the primary judge was able to, and did, assess the medical evidence in coming to a finding as to the extent to which it affected the moral culpability of the appellant (see [51]). Where the appellant's psychiatrist did not expressly link the medical condition to the culpability of the appellant, the respondent submitted that the way in which the primary judge treated the medical evidence was correct.
8. Finally, the appellant submitted that the sentence is "manifestly excessive". The appellant's written submissions deal with the difficulties of making out this ground, and note that "appellate intervention is not justified merely because other sentences are different, but only where there is a misapplication of principle". The ground is based on a House v The King argument that the basis of the sentence is not able to be discerned from the judgment and so the reasons do not disclose which of the "objectively mitigating features of the offending" were or were not taken into account. The appellant attaches to his substantive submissions on appeal an annexure of a table listing sentences where a period of less than 9 months were imposed with "general liberty" and some of which were suspended after a time. That table does not of itself establish that this sentence was manifestly excessive.
9. The appellant submitted that the focus of the custodial period - coercion - "doesn't go away just because he's not in custody" on the basis that the Full Court could re-impose his custodial sentence were a stay to be granted.
10. In reply, the respondent made submissions calling on what Katzmann J said in Kazal at [60]:

Nevertheless, where there is a finding of criminal contempt leading to conviction and imprisonment and where the stay is sought in conjunction with an order that the contemnor be released from custody pending the determination of the appeal, there is reason to believe that the applicant's task is more onerous than it would be in an ordinary civil case.

1. The respondent submitted that where the contempt in question is the failure (and the continuing failure) by the appellant to answer questions, the factor of coercion as it pertains to a stay must have some significant weight. The answer to release lies, it was said, in the appellant's own hands.
2. The respondent noted that 12 December 2025, the end of the Determination, was a firm date, and it was only [REDACTED] before the sentence expired. Any purging of the contempt can only occur before 12 December 2025. Releasing the appellant now cannot be time that is "made up later" and it was submitted that a stay would distort the purpose of the custodial sentence.
3. In relation to the strength of the appeal, the respondent submitted that the "all or nothing" element of the relief sought by the appellant meant that prospects of success must be fairly strong in order to obtain the stay and subsequent release. That is, that given the way this appeal has come on quickly, and the appellant continued to remain in contempt, it would need to be likely that any re-sentence would be less than the time already served in order to justify a stay.

1. The appellant puts the matter as demonstrating "irreparable harm" to the appellant, his [REDACTED], and his family should release not be granted.
2. The most serious allegation was that the appellant's health was compromised - possibly seriously - by the failure of the place of detention to ensure that the appellant had access to his CPAP machine. The appellant submitted that the evidence revealed that he was diagnosed with obstructive sleep apnoea on 17 July 2018 and a copy of the treating doctor's report of that date was in evidence. Ms Doherty for the appellant submitted that

the updating report of [the psychiatrist] and the [wife's evidence] indicated that "the applicant has not had access to his CPAP machine. It's quite a serious event that occurs in custody in New South Wales. There's several coronial reports, Navarro and DS, which relate to not accessing CPAP machines in New South Wales custodial centres. It's quite a significant consideration, in my submission.

1. However, the material did not support a finding that the appellant was without his CPAP machine generally, although the material supports its absence during his 21 days of isolation. The most recent report of his psychiatrist, dated 25 July 2025, mentions the need for a CPAP (on page 2) as part of the history, and reports the appellant as saying "He said that he had a severe form of sleep apnoea, and used a continuous positive airways (CPAP) machine, but did not have access to the machine when he was held in solitary confinement".
2. There are no other complaints of his being deprived from his medical equipment. It was not a matter of complaint to his psychiatrist last month. Accordingly, it does not appear that this is as serious a matter as the oral submissions suggest.
3. In relation to the appellant's [REDACTED]'s health, it was submitted that the loss of the opportunity to assist with his [REDACTED] in his last weeks would cause irreversible harm. Evidence from the appellant's wife, who was also not cross-examined, makes it clear that she is finding her husband's absence very difficult with the added burden - emotional and physical - of looking after her [REDACTED] in the context of the appellant's [REDACTED]'s health and possible imminent death.
4. The respondent submitted that, accepting that the appellant's [REDACTED] was seriously unwell, and that his family was finding the situation difficult to deal with, these factors were part of foreseeable results of a coercive sentence. In particular, it was submitted they are matters that assist with the purpose of the sentence, which is "increas[ing] the desire [of the appellant] to meet the obligations of the summons that is being issued".

1. I have reviewed the written submissions of the parties on both the appeal and on the stay and have heard submissions made orally before me on 8 August 2025.
2. As to the various legal grounds, I am of the view that while the ground relying on Barbaro is not strong, it may be arguable, given the assertion in the submissions of the appellant that a submission by a prosecutor that a fixed term, in the context of the three available outcomes in sentencing on contempt, may offend those principles. I cannot, in the short time and limited arguments available to me, go further than that. The argument by the appellant was that the principles in Barbaro were "absolute" and that once offended, it seems, the appeal must succeed. I do not accept that, given the comments of "appropriateness" in the Kazal appeal cited above. It may be that the question can be argued before the Full Court more fully and citing particular instances in the transcript of the hearing before the primary judge which was not before me in order to make out a case that the respondent's contentions crossed the Barbaro line.
3. In relation to the Lloyd/De La Rosa argument, it is unnecessary for me to decide the intricacies of the case law dealing with mental health and culpability, and in particular as to whether Lane changes the law in the way contended for by the appellant. Suffice to say that the finding of the primary judge (at [67]) as to the appellant's mental health not "provid[ing] any material reason for his refusal to answer questions" appears to be open on the evidence, given the opinion expressed in the third-last paragraph of the psychiatrist's report of 9 April 2025 where the doctor said:

[The appellant's] cognitive function and judgement at the time of the Crime Commission interviews is likely to have been affected by his level of anxiety, and also the tranquilising effects of diazepam. However, he maintained that he made a conscious decision not to answer questions because of the genuine belief that he and members of his family would be placed in danger if he did so.

1. In my view this is not a strong ground of appeal. I was not persuaded that the Court dealt with the medical evidence in any way which was not consistent with the evidence itself. There is a difference between a medical opinion - which was accepted by the primary judge - that the appellant was "likely to have been affected" and a finding that he was so affected that his moral culpability was lessened. Again, this ground may have more appeal when the entirety of the position is available to the Full Court.
2. The appellant accepts that the manifestly excessive ground is a difficult one to meet, and I find that that, too, is not, on its face, a strong ground of appeal.
3. I do not wish to pre-empt the Full Court's process in relation to these grounds and so will confine my assessment to stating that while the grounds may be arguable, I do not regard the appellant as having met the level referred to by Katzmann J of having a "strong appeal" (Kazal at [80]) which would tell in favour of a stay. The High Court, in United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 said at [41] (Gleeson CJ, McHugh and Gummow JJ), in relation to bail in an extradition case:

The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. ... Secondly, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined.

1. While that statement is made in a different context, the principles would still apply here.
2. As noted in Obeid v R (No 2) [2016] NSWCCA 321 at [17], the Court on an application for a stay can only form "a broad overall view of an applicant's apparent prospects". The broad view I have formed is that the appeal is not sufficiently strong to convince me, on that ground alone, to order a stay so that the appellant be released pending appeal.
3. Nor has the appellant demonstrated that the sentence will be substantially served before the appeal is determined. The appeal is listed to be heard next week. I have no doubt that the Full Court will pay proper attention to the need for a prompt decision, particularly in the light of the length of the sentence and what I have referred to as the "compassionate grounds".
4. In relation to these, I adopt what was said by Katzmann J in Kazal at [73]:

I have no doubt that the appellant is distressed to find himself in prison and that he wants his freedom. This is an inevitable consequence of a custodial sentence. Moreover, I accept that he is worried about his family. This, too, is only to be expected. What is telling about the [social worker's] report, however, is that it contains no support for the notion that the appellant has any remorse for his actions.

1. While I am sympathetic to the appellant and his family situation, and accept the evidence of his wife on its face as being inherently believable and consonant with the human experience, it does not seem to me that the circumstances are such that the sentence should be stayed, even for the short period of time sought. Being kept away from family is a necessary consequence of a custodial sentence. A provider being away from his family for some time will result in financial hardship. Children will miss their parent, and a wife her husband. Sadly, [REDACTED] [REDACTED] become unwell and may not survive their [REDACTED]'s incarceration. All of these things are part of the broader matrix which society has considered appropriate punishment to be imposed on individuals in order to preserve the social order. In this context, too, the appellant has not complied with the one thing that could see him released on an application to the Court pursuant to the liberty to apply - the purging of his contempt.
2. As the High Court said in Cabal at [39]:

In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice.

1. I do not consider that the appellant has demonstrated any adequately compelling reason to so interfere with his sentence. Where the grounds of appeal are not compelling, and the appellant's family circumstances, while undoubtedly troubling for him, are not matters which reach the bar of being an appropriate reason for a stay, I am not persuaded to grant the stay sought.
2. The application for a stay is dismissed with costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.