Lusty (Examiner) v DEZ22

WIGNEY J 1 The respondent in this matter, who has been given the pseudonym DEZ22, has admitted to being in contempt of the Australian Criminal Intelligence Commission, formerly the Australian Crime Commission (ACC), by failing to answer questions put to him by an examiner at an ACC examination. On 21 December 2022, I ordered that the respondent be imprisoned until further order: see Lusty v DEZ22 [2022] FCA 1581 (DEZ22 (No 1)). The applicant now applies for an order that his indeterminate sentence of imprisonment cease and, in effect, that he be released. The respondent, who is the relevant ACC examiner, accepts that the respondent should not continue to be imprisoned on an indefinite basis, but submits that a fixed sentence should be imposed. For the reasons that follow, it is in all the circumstances appropriate for the respondent's indefinite sentence to cease. The question that remains is what order should be made, or what sentence should be imposed, to punish the respondent for his contempt of the ACC.

Statutory framework and facts 2 The relevant statutory framework and the facts which gave rise to the respondent's conduct are set out in detail in DEZ22 (No 1) at [2]-[12]. It's unnecessary to repeat what was said there. These reasons should be read together with my reasons in DEZ22 (No 1).

Relevant principles 3 As I noted in DEZ22 (No 1), there are two main ways in which the Court may deal with a contemnor in respect of a contempt of the ACC arising from his refusal to answer questions in an ACC examination. 4 The first way is to commit the contemnor to prison indefinitely until he or she purges the contempt - that is, until he or she answers the questions that he or she was required to answer. Such an order is self-evidently only appropriate where the contemnor has not purged the contempt at the time of the hearing. Such an order should also ordinarily only be made if there is at least some prospect that indefinite imprisonment may coerce the contemnor to answer the questions and thereby purge the contempt. 5 The second way is to punish the contemnor for the contempt by imposing a sentence, usually involving a determinate sentence of imprisonment. A sentence of imprisonment for a determinate period may be made, and in some circumstances may be appropriate, where the contemnor has not purged his or her contempt at the time of the hearing. 6 In Lusty v DER22 [2023] FCA 255 at [28]-[34] I provided the following brief summary of the principles applicable to punishing a person for a contempt of the ACC of the type in issue in this case: There is ample authority, both in this Court and other superior courts, for the proposition that contempt of investigative bodies such as the Commission which arises from a refusal to answer questions as required in an examination is a serious contempt which generally warrants condign punishment. That is because "[t]he effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions", including those asked by an authority which Parliament has empowered to compel answers: see Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 117 (King CJ, with whom Zelling and Wells JJ agreed); see also Hannaford v HH (2010) 205 A Crim R 366; [2010] FCA 1214 at [57]. A conviction of contempt of the sort in question in this case is criminal in nature and the general principles applicable to sentencing for a crime generally apply. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 313-314, Kirby P said as follows: A conviction of contempt of Court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the Courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. While coercion is sometimes said to be a purpose of punishment for contempt, that is generally not so where, as here, the contemnor has purged his or her contempt: see Anderson v XLVII [2015] FCA 19 at [49(5)] and [50]; DTO21 v Australian Crime Commission [2022] FCAFC 190 at [16] and the cases there cited. The considerations which are generally considered to be relevant to determining the appropriate punishment for contempt include: the seriousness of the contempt proved; whether the contemnor was aware of the consequences of the act giving rise to the contempt; the actual consequences of the contempt; the reason for the contempt; whether there has been any apology or public expression of contrition; the character and antecedents of the contemnor; general and specific deterrence; and denunciation of the contempt. This list of considerations is by no means exhaustive: Hannaford v HH (No 2) [2012] FCA 560 at [73]; Anderson v BYF19 [2019] FCA 1959 at [45]. In more general terms, it is usually necessary to consider the facts and circumstances relevant to the objective seriousness of the contempt in question, as well as the contemnor's subjective circumstances, including his or her background and personal circumstances, antecedents, attitude to the contempt and capacity to meet any pecuniary punishment. The object of deterrence, both specific and general, is a particularly significant consideration in imposing a sentence for a contempt that involves the refusal to answer questions when required to do so: Wood v Galea (1995) 79 A Crim R 567 at 571; Von Doussa at 118 There is no prescribed or maximum penalty for a contempt of this nature. The provisions of the Crimes Act 1914 (Cth) relevant to the sentencing of federal offenders do not apply as if contempt was an offence, or otherwise by force of law: see Sage v CFS22 [2022] FCA 1023 at [20]. The range of penalties for contempt generally include imprisonment, a fine, sequestration of assets and a conditional suspension of any term of imprisonment: see Hughes v Australian Competition and Consumer Commission (2004) 247 FCR 277; [2004] FCAFC 319 at [55]. 7 It is unnecessary to add anything of substance to what I said in DER22 concerning the objective seriousness of instances of contempt of the sort committed by the respondent and the need for any sentence imposed to have regard to the objectives of specific and general deterrence. I should, however, emphasise that, given the respondent's ongoing refusal to purge his contempt, the objects of specific and general deterrence remain paramount and loom large in fixing an appropriate sentence in the respondent's case.

DEZ22's refusal to purge contempt 8 When the respondent appeared before me on [redacted], he had not purged his contempt. He had continued to refuse to answer the questions that had been put to him by the examiner. I was at that stage not persuaded by the evidence that was before the Court that there was no prospect that the respondent might change his attitude and purge his contempt. I did not accept the respondent's explanation for his continuing refusal to answer the examiner's questions. I was also satisfied that there was an ongoing need on the part of the ACC to obtain the respondent's answers to those questions. It was largely on that basis that I ordered that the respondent be imprisoned until further order. 9 Just over six months has passed since I ordered that the respondent be imprisoned indefinitely. He has still not purged his contempt and has continued to steadfastly refuse to answer the examiner's questions. The applicant has advised the Court that the respondent has recently indicated that he remains unwilling to answer the questions. 10 When the matter came before me on [redacted], it was submitted on the respondent's behalf that I should infer that his ongoing refusal to answer the examiner's questions was the product of his fear that he would be harmed if he did so. The problem for the respondent, however, was that at that stage the submission was unsupported by any cogent or reliable evidence. I was in those circumstances unwilling to draw the inference. 11 In a letter to the Court from the respondent dated 15 June 2023, which was tendered by consent on the present application, the respondent again maintained that his ongoing refusal to answer the examiner's questions was due to his belief that if he did so, that would put not only his life, but also the lives of his former partner and their children, in harm's way. That assertion must now be considered in light of the fact that the respondent has spent over six months in prison in circumstances where he must have appreciated that he was likely to be released at an earlier point in time if he answered the examiner's questions. 12 In those circumstances, I consider it at least plausible that the respondent's ongoing refusal to the answer questions put to him by the ACC examiner may be explained, at least to some extent, by his concerns and fears for his and his family's safety and security. It follows that I am prepared to accept that the respondent has a subjective believe genuinely held that he and possibly his family may be harmed if it became known that he had answered or was prepared to answer questions put to him by the ACC examiner. 13 I should add, however, that I remain of the view that the evidence before the Court does not provide an objectively reasonable basis for the respondent's belief in that regard. I note that the examiner, Mr Lusty, was cross-examined concerning one aspect of the respondent's explanation for his refusal to answer questions on 23 June 2022. That explanation involved a claim by the respondent that an investigator had made a remark to the respondent's solicitor shortly before the examination. I remain of the view that that remark, if it was made, does not provide any objectively reasonable basis for the respondent's fears. I should also make it abundantly clear that I do not accept that the respondent's fears, albeit genuinely held, provide a proper or reasonable basis for his ongoing refusal to purge his contempt. 14 Despite that, I accept that the fact that the respondent has now spent over six months in prison and yet continues to refuse to purge his contempt suggests that he is unlikely to change his mind in the near future. I doubt in those circumstances that there is any ongoing utility in seeking to coerce the respondent to answer the examiner's questions by continuing to imprison him on an indefinite basis. The applicant has also acknowledged that coercion is now a less significant factor. 15 There has been another important change in circumstances since I imprisoned the respondent indefinitely on 21 December 2022. That change is that the special ACC investigation pursuant to which the respondent's examinations summons was issued and served (see DEZ22 (No 1) [6]) is soon to come to an end. That is because the three year period specified in the relevant ACC determination expires on 27 July 2023. It follows that the respondent's adjourned examination pursuant to the summons must also effectively cease on that date. The summons will effectively be taken to have been discharged on that day. 16 In that context, the applicant has adduced evidence which indicates that on 12 December 2022 the board of the ACC made a further determination pursuant to section 7C(2) of the Australian Crime Commission Act 2002 (Cth). That determination authorised a new ACC intelligence operation. The scope and purpose of that new operation was said to be similar to the scope and purpose of the special investigation pursuant to which the extant summons to the respondent was issued. 17 The applicant and the ACC maintain that the respondent remains a highly significant witness or potential witness who could provide information relevant to both the current investigation and the new intelligence operation. Despite that evidence, I am no longer satisfied that there is any utility in seeking to coerce the respondent to purge his contempt by means of an indefinite prison sentence. 18 As I already indicated, I consider it most unlikely that the applicant will purge his contempt, particularly between now and when the existing summons, and the relevant ACC special investigation, lapse on 27 July 2023. It will be a matter for the ACC to determine whether to issue a summons to the respondent for the purposes of the new ACC intelligence operation. It is in all the circumstances appropriate to vacate the order made on 21 December 2022, which imprisoned the respondent until further order, and instead proceed to make a final order punishing the respondent for the contempt arising from his ongoing refusal to answer questions put to him at the ACC examination in June 2022.

The respondent's subjective circumstances 19 It remains to consider the respondent's subjective circumstances. When the respondent's matter came before me on [redacted], a number of documents were tendered on the respondent's behalf. First, he tendered a letter which expressed his remorse for not purging his contempt, sought to explain why he had not done so, and referred, albeit it in fairly brief terms, to his difficult and deprived childhood. The contents of that letter are set out in DEZ22 (No 1) at [20] and do not need to be repeated. 20 Second, the respondent tendered a report by a psychologist, Ms Allison Cullen, dated 7 December 2022. The contents of that report were also summarised in DEZ22 (No 1) at [21] to [24] and [36]. It's unnecessary to provide a further detailed account of what was said in that report. It suffices for present purposes to note that the respondent is an indigenous man who appears to have suffered a dysfunctional childhood. He was raised in modest housing commission conditions and, more significantly, was exposed to domestic violence and parental incarceration and crime in the course of his upbringing. There could be little, if any, doubt that the respondent's difficult and deprived childhood scarred, and was likely to have impaired, his intellectual and emotional development and contributed to his ongoing adverse mental health issues. 21 In her report, Ms Cullen assessed the respondent as satisfying the diagnostic criteria for post-traumatic stress disorder. That is a relevant consideration because of the risk that any further imprisonment may have a further adverse effect on the respondent's mental health. 22 As I noted in DEZ22 (No 1) at [40], the respondent's subjective circumstances no doubt compel a degree of leniency in respect of his punishment for contempt. As discussed in Bugmy v The Queen (2013) 249 CLR 571 at [40] and [43]-[44], an offender who has been raised in such circumstances may be considered to be less morally culpable than might otherwise be thought to be the case. That is because an offender's exposure to such conditions is likely to have compromised their capacity to mature and learn from experience. That is a consideration that should be given full weight in considering the appropriate sentence to impose on the respondent. 23 I should, however, perhaps note that there was no objection to the tender of Ms Cullen's report and she was not cross-examined. I consider that I should, nevertheless, approach some of what is said in Ms Cullen's report with a degree of caution. That is because the respondent has not himself given evidence and the statements he made made to Ms Cullen concerning his upbringing and current circumstances are effectively untested: see Anderson v BYF19 [2019] FCA 1959. 24 Two further letters to the Court from the respondent were tendered on the current application. Those letters would tend to suggest that the respondent's incarceration to date has perhaps been harsher than would ordinarily be the case for most offenders. That would appear to have been a product of, not only the fact that he had been imprisoned for an indefinite period for a contempt, as opposed to having been imprisoned for a specified period for a specified offence, but also because, for obvious reasons, he has at times been segregated from the general prison population. The respondent also appears to have suffered in prison as a result of COVID-19 lockdowns. The respondent appears nevertheless to have been a model prisoner, at least to the extent that he has stayed out of trouble, remained in prison employment and obtained some training certificates. That is to his credit. 25 There was a further body of evidence adduced on the current application which, again, tends to compel a degree of leniency in terms of the punishment to be imposed on the respondent. That evidence was affidavit evidence from the respondent's former partner and the mother of [redacted] his children. It is, in all the circumstances, both unnecessary and undesirable to rehearse that evidence in detail. 26 It suffices to note that the respondent's incarceration has had a deleterious impact on both his former partner and their children. In particular, the respondent's imprisonment appears to have had a significantly adverse effect on the mental health and wellbeing of his children, to the point where they have engaged in dangerous, and at times, self-destructive, conduct. While the respondent's former partner has admirably endeavoured to deal with those issues, there could be little doubt that she and the children would be likely to suffer further hardship if the respondent was required to serve a further lengthy term of imprisonment. The hardship suffered, and likely to be suffered, by the respondent's family as a result of his incarceration is plainly a relevant consideration: see Totaan v The Queen [2022] NSWCCA 75 at [77]. 27 There are two further matters to note concerning the respondent's objective circumstances. First, the respondent could not be said to be a person of good character. He has several prior convictions, though mostly for minor offences which did not warrant terms of actual imprisonment. Some of the offences, however, appear to relate to, or arise from, domestic difficulties and failures to comply with apprehended violence orders. Second, the respondent should be given some credit for the fact that he indicated that he would plead guilty to the charge of contempt at a very early stage. That not only demonstrates a degree of remorse and contrition, consistent with the remorse expressed in his letter to the Court, but also the respondent's willingness to facilitate the course of justice, at least to that extent. The fact remains, however, that the respondent has not purged his contempt and must be sentenced on that basis.

The appropriate orders 28 In Anderson v GPY18 [2019] FCA 954, Banks-Smith J provided an analysis of sentences imposed in respect of instances of contempt committed in circumstances not entirely dissimilar to this case. Her Honour's analysis revealed that, where sentences of imprisonment for fixed periods were imposed, those periods ranged between four months' imprisonment and two years' imprisonment. In more recent times, sentences of eight months' imprisonment have been imposed in two cases involving instances of contempt not dissimilar to this case - see Lusty v CRA20 [2020] FCA 1737 and Anderson v BYF19 [2019] FCA 1959. In BYF19, the sentence of eight months' imprisonment was suspended after four months. 29 While an analysis of past cases may be of some assistance, I doubt that the imposition of a term of imprisonment in this matter should be approached on the basis that there is any established range of penalties in cases such as this. While consistency in sentencing is, no doubt, of considerable importance, comparable cases should always be approached with some caution because each case must be considered on its own facts and circumstances. It would appear to me that the circumstances of this case are such that the partial suspension of the prison sentence would be appropriate. The partial suspension of the sentence would not only provide some measure of leniency but would also ameliorate, to some extent at least, the hardship that would be suffered by the respondent's former partner and children which would likely flow from any further period of incarceration. 30 In my view, the appropriate sentence in this matter, having regard to all of the relevant facts and circumstances, is a sentence of imprisonment of 12 months, backdated to 21 December 2022, with that sentence to be suspended on and from today, that is, 28 June 2023. The suspension of the respondent's sentence will be subject to the condition that he be of good behaviour during the balance of his sentence, that is, up to 21 December 2023. 31 Before making those orders I should emphasise that the immediate suspension of the respondent's sentence should not be seen to detract from the seriousness of the respondent's contempt and the need for a condign punishment to be imposed. The respondent has served six months imprisonment and, while the balance of his sentence is to be immediately suspended, as I noted in DER22 at [59], a suspended sentence is, nevertheless, a real punishment. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.