Prothonotary of the Supreme Court of New South Wales v Ceren

Supreme Court of NSW|2016-08-23|Before: Harrison J

Judgment

HIS HONOUR: By summons filed on 10 June 2016, the defendant has been charged with contempt in the face of the court in the following terms: It is alleged that the defendant is guilty of contempt of the District Court of New South Wales in that, on 25 November 2015, she was a competent witness who was required to give evidence on oath in the proceedings R v Seyed Hosseinishoja and who refused to answer material questions asked by the Crown Prosecutor.
The defendant pleaded guilty to that charge.

Sentencing principles

The power to punish for contempt in the face of the court is part of the Supreme Court's inherent jurisdiction: R v Metal Trades Employers Association; Ex p Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 at 241-3. The penalty is at large. The Crimes (Sentencing Procedure) Act 1999 applies to the sentence of persons convicted of contempt: Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 at [42]-[45]. A plea of guilty must be taken into account: s 21A(3)(k) and s 22; R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.
The principles generally applicable in sentencing for contempt are well known: see Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. Specifically with respect to contempt consisting in a failure to answer questions, Dunford J listed ten factors of relevance to the sentencing exercise in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185: 1. The seriousness of the contempt. 2. Whether the contemnor was aware of the consequences to himself or herself of what they 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. 10. Denunciation of the contempt.
These factors are commonly utilised as a framework in sentencing for contempt.

The seriousness of the contempt

Contempt in the face of the court for refusing to be sworn or, once sworn, refusing to answer questions is a serious contempt: see R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 at [39]; R v Taber & Styman; Re Shannon Styman [2005] NSWSC 1329; Trad v Pickles Auction Pty Ltd [2006] NSWSC 1177; Jando at [91]; Registrar of the Court of Appeal v Raad (unreported, NSW Court of Appeal, 9 June 1992); Registrar of the Court of Appeal v Gilby (unreported, NSW Court of Appeal, 20 August 1991).
In Raad, Kirby P observed as follows: "[T]he refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the Courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn or, once sworn, to give evidence is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the Court in answer to questions lawfully addressed."
The defendant's contempt occurred during a criminal trial for conspiracy to cause grievous bodily harm and wounding with intent to cause grievous bodily harm. The trial judge described it as "a very serious [contempt] … that occurred in the course of a criminal trial involving a very serious offence." It is submitted by the Prothonotary in this case that the defendant's refusal to answer the Crown's questions on the voir dire had a real tendency to frustrate the administration of justice and did so in fact. Such a refusal "strike[s] at the heart of the system of the administration of justice": In the matter of Reece George Barnes [2016] NSWSC 133 at [44].
It has not been suggested on her behalf that the defendant's contempt was also not a very serious matter. That is and must be the relevant starting point. The Court must necessarily express its disapprobation of such conduct in the strongest terms. That does not, however, automatically foreclose the sentencing options available to me.

Awareness of the personal consequences

The defendant indicated that she was aware of the consequences for her that might flow from her refusal to answer questions. She was given legal advice at the time. The defendant's acknowledgment that she was aware of the possible consequences came at a time when she was already serving her non-parole period for the offences for which she had been convicted. That fact, particularly having regard to what the defendant said in evidence before me about her time in custody, emphasises in stark terms that she could have had no doubt about what consequences the imposition of a further term of imprisonment would have for her. It also gives important context to the reasons given by her for refusing to answer questions in the first place. This is referred to in more detail below.

Actual consequences of the contempt

The trial of the accused did not ultimately proceed. The Prothonotary has submitted that the defendant's refusal to give evidence resulted in the loss of significant evidence from the Crown case against Mr Hosseinishoja but stopped short of submitting that the withdrawal of the proceedings against him was directly caused by the defendant's refusal to give evidence and for none other.

Context

It is apparent that the contempt was committed in the context of criminal proceedings against Mr Hosseinishoja for two serious offences.

Reason for the contempt

The defendant did not explain her reasons for refusing to give evidence at the time that she did so in the District Court. That is unremarkable, particularly having regard to the fact that she was not asked. She was however asked in her evidence before me as follows: "Q. You were given the opportunity to give evidence and you declined. What was the reason or reasons for that? A. Scared for my safety, for my mum, for my brother. … Q. You never signed a written undertaking to give evidence? A. In the trial, for the trial, no. I was subpoenaed. Q. The police visited you on eight occasions? A. Correct. Q. In custody? A. In the first 11 months, yes. Q. Now, what were the circumstances of that? Did it happen at the women's gaol? Were you taken somewhere? Would you tell the Court what effect did that have, if any? A. I was at Silverwater at the time. What they do is they call it a section 25 so they pull you out of your cell by 4.30 and they take you to MRRC where there's like a police station and they pulled me up about eight times, they were coming to visit me randomly as well as legal visits. And, yeah, I was just being questioned. Like I kept going by other inmates and at time like I was vulnerable; my mum, because she was on a disability and she couldn't afford rent when me and my brother got arrested, and she was at a place called Samaritan Housing so I really wanted to get out so I could help her. Q. So you decided to assist the police? A. (Witness nodded head.) Q. You did make a series of statements to the police that would have assisted them? A. Yep. Q. Is that correct? A. That's right. Q. So you wanted to get out to see your mother? A. Yeah, and help her. Q. Was there any other reason you wanted to make the statement? A. I wanted the people who are guilty to get what they deserved. Q. So it was November last year that you were called to give evidence? A. (Witness nodded head.) Q. Can you tell the Court about your state of mind at the time you were called? A. By that point my fears had grown because of the environment of like being in gaol. Like you hear inmates talking; like for example if someone's given a statement you're classed as something and that's one thing. But the most important thing is how they speak on the phone or they write letters to other inmates to get back at that person. And the scary part it's like you wouldn't even know where it's coming from, that someone could do anything to you or your family. Q. Did you consider that to be real? A. Yes. I saw it happen. Q. What do you mean? A. Like I saw people get hurt. Q. Where? A. In prison. Q. Did you witness incidences or you… A. There were some, yeah. Q. What did you witness? HIS HONOUR: I'm across what goes on, Mr Peluso. PELUSO: So how serious did you think it was when you refused to give evidence? A. I knew it was serious. HIS HONOUR: Had you had direct threats made to you? A. Not directly, no. PELUSO: What if anything was it about the situation that did concern you? A. The fact that these people were either bikies or bikie associates, I was scared for my brother who was getting out in two months, so from November, he got out in January. And I had another eight more months to go and I was just scared; like if I said anything, something could happen to him. Q. To you or to him? A. To him. And for me, for myself and for my family."
In fairness to the defendant, that transcript does not convey all that the evidence reveals. The defendant was visibly upset while giving this account and in tears throughout most of it. My intervention at the point where she had been asked about the details of what she had seen in gaol was intended to spare her from what was likely to have become an unnecessarily distressing experience as far as I could determine. At the time when the defendant refused to give evidence she was paradoxically an eye witness to the treatment of prisoners who were suspected by other inmates of assisting the police on the one hand as well as the harsh and unpleasant conditions in custody to which she was potentially exposing herself if imprisoned for her contempt on the other hand. I am confidently able to conclude that the custodial environment was to be preferred to the prospect of retribution from some source if she answered the questions she expected she might be asked.
The defendant's reason for refusing to answer questions, based upon a fear for her own safety and that of her family, seems to me to be a significantly ameliorating factor in this case. It is undiluted by suggestions that she stood herself to gain in some material or collateral way from her refusal or that her explanation for doing so is otherwise to be disbelieved. The defendant was not cross-examined on her evidence before me, a forensic decision for which I have the highest regard in the circumstances.

Benefit for giving evidence

The defendant was not offered and did not stand to receive any benefit by indicating an original intention to give evidence in the criminal trial.

Contrition and remorse

The defendant gave this evidence: "Q. I want to ask you about the current matter. Do you accept that it was a very serious A. Yes. Q. …matter that you refused to give evidence? A. Of course. Q. Now, first of all what do you say to the Court about your refusal to give that evidence? A. I'm sorry that I got in the way of the justice system."
The defendant's expressions of contrition were not extensive. They were, in my opinion, no less genuine for that. The defendant's apology has to be viewed in the light of her evidence as a whole, showing clearly that she is desperately concerned about her return to prison for any time at all and in any circumstances. The terms of her apology also encapsulated a real appreciation of the effect of her actions.

Character and antecedents

Other than the matters for which she was imprisoned, the defendant has no criminal record. The sentence imposed upon her could not be described as lenient. She was only 19 years of age when she became involved in the events that led to her imprisonment. She was otherwise a young woman of good character with significant prospects. At the time of her arrest the defendant was enrolled in a Bachelor of Primary School Education at the University of Sydney. She has no history of drug or alcohol abuse. The defendant experienced and witnessed verbal and physical abuse at the hands of her father until she was 16 years of age when her parents separated.
The defendant tendered reports prepared by psychiatrist Dr Jonathon Adams dated 25 September 2015 and psychologist Mr Tim Watson-Munro dated 22 August 2016. Dr Adams originally opined that it "seems likely that [the defendant's] emotional turbulence and fears for her brother's safety would have impacted upon her rational decision-making capacity and judgment". That opinion was expressed with reference to the defendant's original offending behaviour, however, and not the conduct that constitutes the charge of contempt.

Deterrence

General deterrence of like conduct is powerfully endorsed in the authorities. The appropriateness of any sentence as a vehicle for deterrence must necessarily depend upon the facts of the offending. The sentence that I intend to impose is more a reflection of the defendant's powerful subjective case than it is a comment upon the seriousness of the contempt or the need to deter similar conduct.
Having regard to the matters to which I have already referred, I have no doubt that the defendant will not re-offend and that the need for specific deterrence is correspondingly reduced. The prospect that the defendant will ever again be faced with the dilemma that confronted her in this case is limited if not entirely fanciful.

Denunciation

The offence should be denounced in the strongest terms.

Conclusions and sentence

The defendant has committed an objectively serious contempt. Her subjective circumstances are such that I do not consider that she should be returned to prison. She is currently caring for her mother and is anxious to restore her life and make up for the years lost to a crime in which she should never have become involved. It would in my view amount to a crushing punishment to imprison the defendant now, having regard to the fact that she has just been released on parole and will for some time be subject to what will hopefully be the positive direction and assistance of the relevant authorities. An encouraging pre-sentence report tendered on her behalf indicates that it is the defendant's hope that she will progress to the completion of her studies in the field of education and childcare. It is to be hoped that her criminal history will not stand unexamined as in effect an automatic barrier to her progress in that endeavour. Nor should the defendant's conviction and sentence for this offence operate in the slightest way to attract the unfavourable attention of those who currently administer her release on parole.
Meryem Ozlem Ceren, I make an order pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 directing you to enter into a good behaviour bond for a period of 12 months commencing on 2 September 2016 and expiring on 1 September 2017 upon the following conditions: 1. that you will appear before the Court if called on to do so at any time during the term of the bond. 2. that you will be of good behaviour. 3. that you will inform the Registrar or clerk of the court by which this bond is imposed of any change of your residential address.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2016

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