Lusty v CRA20

Relevant legal principles 31 In Anderson v BYF19 [2019] FCA 1959 at [42]-[49] I summarised the principles applicable to sentencing for contempt offences in this context. The following is taken from those reasons. 32 As I observed, in DKH18, White J summarised some of the authorities which reflect on the significance and importance of the offence of contempt (both in the context of the ACC Act and more broadly), at [24]-[27] as follows: [24] A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, at 117-8: The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation. This investigation is still in progress in that the inspector has not, we are told, lodged his report, and the applicant still has the opportunity to purge his contempt by giving the answers required. His continuing non-compliance with the Court's order to do so amounts to a deliberate and considered persistent defiance of the authority of the law. It cannot be condoned or tolerated. … It is to be emphasised that [the] answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation. [25] King CJ referred with approval to a statement of Mitchell J that, if witnesses were able to gain the impression that information sought by an inspector could be withheld "by the mere payment of a tariff", investigations may well prove completely ineffective, at 118. [26] A statement of Moffitt P in Thelander v Woodward [1981] 1 NSWLR 644 at 646 is to like effect: Where appropriate, the sanctions of contempt and a charge under s 21 should be pursued with vigour and expedition. Indeed unless this is done an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime. [27] In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds-Streeton J noted: [57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach. Dodds-Streeton J also noted, at [59], that a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was "the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the ACC's purposes". 33 The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: XLVII at [49] per White J; Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567 (Wood v Galea) at 571 per Hunt CJ; Von Doussa v Owens (No 3) (1982) 31 SASR 116 (Von Doussa v Owens (No 3)) at 118 per King CJ (Zelling and Wells JJ agreeing); Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 (Hannaford) at [39] per Dodds-Streeton J citing Wood v Galea at 571. A contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry is usually to be regarded as a serious contempt: XLVII at [49]; Wood v Galea at 571; Von Doussa v Owens (No 3) at 117-8 per King CJ (Zelling and Wells JJ agreeing). 34 It has been recognised, that because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: XLVII at [49] per White J citing Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford at [60]-[63], although coercion is inappropriate if the person has purged his or her contempt, or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: XLVII at [49] per White J; Wood v Galea at 573. 35 In Anderson v GPY18 [2019] FCA 954, Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: and see for example: DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 (Allbeury) at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 (Hannaford (No 2)) at [27]. Although it must be acknowledged that the list of considerations is not exhaustive: Hannaford (No 2) at [73]. 36 Dunford J identified ten considerations in assessing the proper punishment for contempt 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. 37 And see: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25] per Merkel J; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (Kazal) at [101]-[103] per Besanko, Wigney and Bromwich JJ. 38 There are a range of penalties available to the Court in punishing for contempt: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], set out the range of penalties as follows: (1) to commit a contemnor to prison for an indefinite period of time; (2) to impose a fine for a wilful breach of an order or undertaking; (3) to impose a daily fine; (4) to order the sequestration of the assets of a contemnor; and (5) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt. 39 In GPY18 at [29] Banks-Smith J provided an analysis of some of the sentences imposed for the offence of contempt, including for the refusal or failure to answer questions, which reflects the breadth of the sentencing options.

Consideration 40 The respondent's contempt was deliberate. The respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to speak to his counsel to obtain legal advice and to consider that legal advice. In the context of the statutory scheme, this offence of contempt is properly characterised as serious: see for example: DKH18 at [18]-[24]. 41 As I observed in BYF19 at [54], the respondent's approach in refusing to answer questions undercuts the effectiveness of the scheme which authorises these compulsory examinations. The examination processes would be hamstrung if all witnesses adopted the approach that the respondent has taken. The investigations of which the examination was a part, are of significant importance to the protection of the broader community. The serious impact on the community of illicit drug use and supply, and associated crime is uncontentious. General deterrence must necessarily play a prominent role in any such sentence. 42 The special intelligence operation is ongoing and the applicant deposed that a delay in the continuation of the examination has already impacted adversely on the ACIC's ability to obtain and analyse current intelligence relating to the special operation. The respondent took issue with the evidence presented by the applicant, which resulted in leave being granted to the applicant to file additional material. I will return to this topic below. That said, I am satisfied that the respondent's conduct frustrated and impeded the examination and, in turn, the progress of the ACIC investigation. 43 The respondent has chosen not to purge his contempt despite subsequently being given repeated opportunities to do so. 44 In the context of declining to give any reason for the refusal to answer the questions, when asked by the applicant if he had any fears or concerns, the respondent said "Just for my safety, that's it", but when invited to elaborate on that by the applicant, he declined to do so. It is also apparent from the transcript of the examination that his counsel informed the applicant that that was the respondent's instructions to him, and that it also related to the safety of his family. 45 It is well established that fear of retribution will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43]; Hannaford (No. 2) at [33]; BFY19 at [58]-[61]. This is because the exercise of such powers as possessed by the ACIC to facilitate the investigation of matters of this nature would be significantly impeded if mitigating weight were to be given to an assertion of fear of retribution as a reason for refusing to provide information. 46 This fear expressed was no more than a generalised fear. There is no evidence of any specific threat having been made to either the respondent or his family. That was so at the time of the questioning and continues to be the case at the time of sentence. It is based on what is really seen to be inherent in being involved with criminal activity of the type being investigated: BFY19 at [63]. As was the case in GPY18 and Hannaford (No 2) and BFY19, the respondent offers no more than a generalised fear which, in the assessment of mitigation, cannot be given any real weight. 47 The applicant submitted that having regard to, in particular, the need to coerce the respondent into purging his contempt, as well as the purposes of retribution for the contempt and the deterrence of others, an immediate and indefinite custodial sentence is appropriate in the circumstances. 48 It was submitted that the imposition of a fixed term of imprisonment is unlikely to have the same coercive effect as an indeterminate sentence of imprisonment. An indeterminate sentence of imprisonment was said to send an appropriate message to persons who may find themselves in a position similar to the respondent that their obligation to answer questions that they are required to answer before an ACIC examiner cannot be avoided by mere payment of a tariff by way of imprisonment or fine. The applicant relied on a number of previous cases which he submitted provided guidance, and supported the approach he contended for. I note that care must be taken when considering previous cases, as each turned on their own facts. Some involved factual findings not urged upon me and circumstances different from those in this case. 49 As a result, the primary focus of the respondent's submission was to contend that a fixed sentence should be imposed as opposed to indeterminate detention. In part, the respondent's submission as to the reason for his refusal to answer questions was directed to the contention that given his basis for refusal the position is unlikely to change, and therefore an indeterminate sentence should not be imposed. The respondent, appropriately, did not challenge the seriousness of the offending. The respondent submitted that he pleaded guilty at the first opportunity after he had retained counsel. That is a matter to which I give some weight as it indicates some acceptance of responsibility for his conduct, and has utilitarian value. Although it may be said that a conviction was inevitable, a guilty plea still has some value: see GPY18 at [34]; Hannaford (No 2) at [82]. The respondent has no prior convictions. The respondent's submission as to his personal circumstances was scant. This appears to have been a choice made by the respondent, but has the inevitable consequence that this Court has little information which could be considered in mitigation. The respondent relied on three character references. The respondent relied on a disease he suffers, which is referred to in the references. I note that "generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health": R v Smith (1987) 44 SASR 587 at 589. However, no medical evidence was adduced as to the effect of the disease or any impact a sentence may have, and in that circumstance the respondent accepted that may mean it will only be given limited weight. 50 As I observed above at [43] the respondent has been given many opportunities to purge his contempt, not only during the examination but during the conduct of these proceedings. The respondent declined to do so in a context where he is well aware of the consequences of his failure to do so. He has been represented by counsel both at the examination and during sentencing. The respondent has been resolute in his approach to date. Given the deliberate refusal to answer the questions in light of the opportunity to purge his contempt, which would mitigate his offence, coercion and deterrence must play an important feature in the sentence imposed. It necessarily follows that personal circumstances and mitigating factors specific to the respondent carry less weight: Hannaford (No 2) at [32] citing Corruption and Crime Commission v Allbeury et al (No 2) [2011] WASC 26; (2011) 205 A Crim R 386 (Allbeury (No 2)). 51 Although the respondent submitted that his approach to date made it less likely that an indeterminate sentence would have a coercive effect on him to answer the questions, the experience of custody may nonetheless have such effect: see for example Anderson v DKH18 (No 2) [2019] FCA 1352. 52 As noted above, the respondent criticised the quality and extent of the applicant's evidence as to the significance of the respondent's evidence now to the investigation and the desire for the examination to continue. The applicant's submission initially was to the effect that the cases did not refer to there being a need to produce evidence of the situation as at the time of sentencing. However, each case must turn on its own facts. In a context where the applicant was seeking an indeterminate sentence, and where the evidence in support from the applicant was rather narrow and was filed at the time of the application, which was some months before the hearing, there plainly was a need for the applicant to produce further evidence. That said, as I noted above at [30], an affidavit of the applicant's solicitor was filed approximately 2 months prior to the hearing which attaches a letter dated 4 September 2020 from him to the respondent's lawyer in which it is said that he was informed that the applicant remains of the view that the answers if truthful would be highly relevant. 53 The affidavit of Mr Neilson filed by the applicant on 16 November 2020 contained further evidence as to the desire to question the respondent. Given that the applicant is seeking indeterminate detention it was incumbent on him to provide evidence of the basis for doing so, and general statements made in the affidavit filed some months before the hearing, by themselves, are of little weight. The nature of the evidence in this recent affidavit is more akin to that which ought to have been proffered in chief. 54 In the affidavit of [REDACTED] affirmed on 4 June 2020 and filed at the time of this application, it was asserted that the respondent's refusal to answer questions had delayed the investigation. I note in that context there is an unexplained delay in making this application, with the respondent refusing to answer the questions on 31 January 2020, some 4 months before these contempt proceedings were instituted. These proceedings could, if desired, have been instituted in a more timely manner: see for example: DKH18. That reflects on the urgency of obtaining the information, and on any submission about the refusal to answer delaying the investigation. That does not detract from the fact the ACIC still wishes the applicant to give evidence in relation to the questions asked. It does however, put into context the submission that an indeterminate sentence should be imposed, to coerce the respondent to give evidence. 55 After the application was filed there was some further delay, through no fault of the applicant, as there were issues that arose in serving the material on the respondent and bringing him before the Court. The consequence is that this hearing is many months after the application was filed, and after the examination. Delay alone will not necessarily render the information sought by the ACIC irrelevant. Rather, that heightened the need to properly address the current desire for the evidence when submitting that an indeterminate sentence should be imposed. 56 However, there is a more fundamental issue with the applicant's submission, and one not really grappled with by the applicant. "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": Allbeury (No 2) at [12] per Martin CJ. As noted above, on 3 September 2020 the respondent was discharged by the applicant from further compliance with the summons under which he gave evidence. He has no extant legal obligation under that summons. It is not a sufficient answer for the applicant to submit that it still seeks the answers to the questions and would issue a summons in similar terms in relation to a similar Determination. That does not create an extant obligation. It would be inappropriate in those circumstances to order indeterminate detention. 57 That said, that there is no extant obligation, does not alter the fact that the respondent could choose to purge his contempt by answering the questions sought by the ACIC. 58 In those circumstances I do not accept the applicant's submission that the appropriate order is one of indeterminate detention. A fixed sentence will be imposed. 59 In any decision relating to sentencing, an important consideration is consistency with the kinds of sentences imposed in comparable cases. Like cases should be treated in like manner: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [6]; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 (The Queen v Pham) at [28]. The consistency sought is consistency in the application of relevant legal principles: The Queen v Pham at [28] citing Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [49]. For the application of this principle to the offence of contempt see: Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 at [51]; Kazal at [113] - [118]. 60 In those circumstances, a consideration of the authorities and the facts of this matter reflects that a sentence of full-time imprisonment is the only appropriate sentence. The respondent did not suggest otherwise.

Sentence 61 I have taken into account all the submissions and evidence put by the applicant and the respondent, and the relevant legal principles. 62 Having taken into account all relevant matters I sentence you to a term of imprisonment of 8 months. I order that there be liberty to apply if the respondent chooses to purge his contempt and if that were to occur I would reconsider the sentence and subject to any further submissions, I would be minded to suspend the remainder of the sentence. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.