Prothonotary of the Supreme Court of New South Wales v Fajloun

Supreme Court of NSW|2015-12-11|Before: Rothman J

Solicitors: Crown Solicitor's Office (Plaintiff) Blair Criminal Lawyers (Defendant) File Number(s): 2015/148666

Judgment

HIS HONOUR: Wahib Fajloun, the Contemnor, must be sentenced for contempt of the District Court of New South Wales. The Contemnor is serving a sentence of seven years' imprisonment, with a non-parole period of four years and eight months, imposed upon him after trial. During that trial the Contemnor engaged in conduct that was a contempt in the face of the Court. The sentence imposed (and the charges preferred) were for assault occasioning actual bodily harm in company and demand property in company with menaces with intent to steal. They were imposed on 2 April 2015 and the non-parole period is to conclude on 5 December 2017.

Facts

The issues of fact before the Court are within narrow compass. The two co-accused were on trial, as previously stated, for assault occasioning actual bodily harm in company and demand property in company with menaces with intent to steal. The trial was occurring before the District Court. The identity of the Judge is irrelevant. Contempt is committed against the court, not the particular judge.
There is an Agreed Facts document tendered for the purpose of sentencing (Exhibit A), which details the factual context in which the contempts occurred. As earlier stated, the Contemnor and his co-offender, Mr Bragias, were tried before the District Court and on 19 February 2014 each entered a plea of not guilty to the charges preferred. The matter proceeded to trial between 26 May 2014 and 3 June 2014.
On the third day of trial, Wednesday 28 May 2014, the Crown Prosecutor cross-examined a witness, in the absence of the jury. During that cross-examination the Contemnor began to laugh. The following exchange then occurred: "HER HONOUR: Mr Fajloun, if you continue to laugh -- ACCUSED FAJLOUN: This is a joke. HER HONOUR: Well, sir. ACCUSED FAJLOUN: This is a joke. You keep going the same stupid things -- NIELD [Barrister for Mr Fajloun]: Please, please, please, please. HER HONOUR: The witness is entitled - ACCUSED FAJLOUN: If you don't want me to laugh stop being a joke, tell him to stop being a joke - NIELD: Please, please, please. ACCUSED FAJLOUN: You keep asking the same questions … (not transcribable) … and that's it - HER HONOUR: Yes, Mr Crown?"
The foregoing exchange was the first charge of contempt which was withdrawn and is not now a matter before the Court in terms of a charge for contempt. Nor is it relevant to any other issue.
On the fourth day of the trial, Thursday 29 May 2014, shortly after her Honour indicated that the Court would adjourn for lunch and was walking off the Bench, the Contemnor stood up and said: "Fuck you!" This was a remark directed at the Judge. The Contemnor then leaned forward and spat in the direction of her Honour. The spit did not make contact with the Judge or another person. The foregoing exclamation and conduct in spitting amounts to Charges 2 and 3.
On the fifth day of the trial, Monday 2 June 2014, when her Honour was discussing a matter with the Contemnor's co-accused in the absence of the jury, the Contemnor made the following remarks towards her Honour: "ACCUSED FAJLOUN: Fuck you, you fucking lying cunt. You fucking start talking - NIELD: Wahib, Wahib, Wahib. ACCUSED FAJLOUN: You're fucking talking shit. She's lying. She's a lying dog. Lying fucking dog. SPEAKER: Wahib. Wahib. NIELD: Wahib. HER HONOUR: I'll come back when he's settled down. ACCUSED FAJLOUN: She's a fucking dog. SPEAKER: Wahib. Wahib. ACCUSED FAJLOUN: She's a lying dog. Fuck that. Fuck. SPEAKER: Wahib. Wahib. ACCUSED FAJLOUN: Fucking … (not transcribable) … I'm going home. Please Mum, just go home."
From the last comment it may be possible that it was his mother that was the speaker that was unidentifiable in the transcript. In any event the foregoing exchange is the conduct in which Charge 4 is preferred.
On the same day, as her Honour began to leave the Bench, the Contemnor picked up a paper cup from which he had been drinking and threw it at her Honour. While the cup travelled some distance, it landed in the witness box and did not make any contact with any person in the courtroom. The throwing of the cup is the conduct on which Charge 5 is based.
On the sixth day of the trial, Tuesday 3 June 2014, the Contemnor's counsel indicated that the Contemnor had withdrawn his instructions and sought leave to withdraw from the trial. Her Honour granted leave (if leave be necessary) and the Contemnor's counsel left the Court. Her Honour discussed with the Contemnor arrangements to be put in place for the continuation of the trial and the engagement by the Contemnor of new legal representation. During that discussion, the Contemnor swore at, and spoke over, her Honour as follows: "I assumed that apart from your other biases that you might give me a fair chance here but obviously I was wrong, but just understand that I don't have any chance at communicating with anybody, all right, I'm going to speak to you slowly because you seem to ignore everything I say … [Transcript 335.22 - 335.26]; I don't even want to give you the chance to explain yourself because you'll make up some rubbish. [Transcript 337.44 - 337.46]; Why don't you come here on the Queen's Birthday if you're so concerned about this case, come and take time off your personal life instead of getting paid to fuck me all the time." [Transcript 340.33 - 340.36] The foregoing exchange was the basis for Charge 6 in the Summons.
Following an application by counsel for the co-accused, Mr Bragias, her Honour discharged the jury and a new trial for the Contemnor and Mr Bragias was listed for 8 October 2014.
The Agreed Facts do not suggest, despite the order in which it is placed, that the application for a new trial was on account of the comments by the Contemnor. Each of the exchanges between the Contemnor and her Honour were in the absence of the jury.

Relevant Principles

Contempt is a common law offence and the punishment is at large (subject only to the Bill of Rights 1688) and a conviction for contempt of Court is a conviction for an offence, criminal in nature. There is some doubt as to whether the proceedings are criminal. In my view, the proceedings are civil, but the punishment is dealt with in the same way as a punishment for crime and the burden of proof of any matter to be taken into account against the Contemnor, either at trial or in the sentencing proceeding, is a matter that the plaintiff or prosecutor must prove beyond reasonable doubt.
Further, the matters that are relevant to the fixing of an appropriate punishment are the matters that one would normally take into account in the punishment of a crime: Registrar the Court of Appeal v Maniam (No 2) [1992] 26 NSWLR 309 at 314 (A-B).
By operation of the Supreme Court Rules 1970, the Court is entitled to punish contempt either by a fine or imprisonment or both and, if a term of imprisonment is fixed (or, for that matter, a fine), the punishment may be suspended either with or without conditions.
As a consequence of the status of contempt as a common law crime, the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act") applies in determining the punishment to be imposed: see Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 at [45]. At both common law and under the Sentencing Act, a sentence of imprisonment is a sentence of last resort and, if a suspended sentence is appropriate, the Court must first come to the conclusion that no other sentence other than a custodial sentence is warranted and, having come to that conclusion, then consider whether full-time custody or a suspended sentence ought to be imposed.
In terms of the seriousness of contempt, a contumacious contempt is in the worst category. A contumacious contempt is one in which the contemnor intentionally disobeys an order of the Court or its authority and seeks consciously to defy the authority of the Court. This is a contempt aimed at the integrity of the courts and designed to degrade the administration of justice. It requires wilfulness.
At the lowest level or category of seriousness is technical contempt and between those two extremes is wilful contempt, which is a contempt that requires wilfulness, but does not involve a conscious defiance of the authority of the Court.

Factors

In Commissioner for Fair Trading v Partridge [2006] NSWSC 478 at [22] Bell J considered the matters to be taken into account in assessing the proper punishment for contempt. Her Honour's list is not exhaustive, but includes: 1. The seriousness of the contempt proved; 2. Whether the contemnor was aware of the consequences to himself of what he did; 3. The reason for the contempt; 4. Whether there has been any apology or public expression of contrition; 5. General and personal deterrence; 6. Denunciation of the contempt; 7. The character and antecedence of the contemnor.
These factors are commonly applied by judges in assessing contempt and the punishment to be imposed.
The conduct of the Contemnor, in this case, is a serious contempt. The Contemnor has wilfully insulted a judge in the course of proceedings, which "necessarily interferes, or tends to interfere, with the course of justice" (Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 at 689 (per Mason, Murphy, Wilson, Brennan and Dawson JJ).
As the High Court in Lewis explained, there is a fundamental distinction between discourtesy and wilfully insulting conduct. It is the latter which is the hallmark of contempt of this kind. Thus, the responsibility of counsel (or self-represented persons) to plead the case fearlessly and with vigour and determination does not amount to contempt. But such a responsibility is not inconsistent with courtesy.
Nevertheless, mere discourtesy is not wilfully insulting conduct. There can be no doubt that the conduct that gives rise to the five charges to which the Contemnor has pleaded is wilfully insulting. Further, the conduct was intended to be intimidating and the atmosphere was extremely tense.
The outbursts and conduct of the Contemnor were, it seems to me, spontaneous and not planned.
The foregoing comment is not intended to condone or lessen the seriousness of the conduct, except that it related to the conduct of the trial and interlocutory issues, rather than dissatisfaction at a judgment on the merits, which, in my view, would be more clearly a defiance of the authority of the Court: Rich v Attorney-General (Vic) [1999] VSCA 14, (1999) 103 A Crim R 261 at [55].
Nevertheless, the conduct of the Contemnor is extremely serious and is conduct that fails to accept the authority of a judicial officer and the Court in terms which are both contemptuous and insulting.
Having made the foregoing comment, I am not satisfied, to the requisite standard, that the conduct of the Contemnor resulted in the discharge of the jury. The immediately preceding conclusion may be a two-edged sword.
While I accept that the conduct was neither planned nor premeditated, the fact that the conduct occurred in the absence of the jury and never in the presence of the jury shows a capacity on the part of the Contemnor to control his conduct, when it suits him. As a consequence, the actions of the Contemnor are not wholly unthinking.

Other Factors

It is fair to say that the learned Judge and the Contemnor's counsel warned the Contemnor about his conduct. Understandably in the circumstances, this was done when each were seeking to quieten the Contemnor. There is no evidence that either the Judge or the Contemnor's counsel advised the Contemnor as to the consequences of his conduct, either in terms of possible discharge of the jury and a retrial, or in terms of punishment for contempt.
Further, the Contemnor has a significant criminal history and was before the Court for a serious crime. It is an important aspect of the criminal justice system in this country that, ordinarily, criminal guilt is decided by the application of the common experience and common sense of a jury. Interference with that process is not only an interference in the administration of justice, but a disregard of a safety mechanism provided to persons accused of serious crime.
I turn then to the existence of remorse, the possibility of rehabilitation and the existence of an apology or public expression of contrition.
In these proceedings the Contemnor has relied upon an Affidavit sworn by him on 11 December 2015. The Affidavit formally admits guilt to the five charges of contempt and agrees to the facts in the Statement of Agreed Facts prepared in September.
The Contemnor describes the "spitting" incident as one in which no saliva left his mouth but, rather, a spitting noise and motion imitating the action of spitting was performed. The Contemnor seeks to explain that, in his cultural background, such an action is intended to indicate a sign of disrespect.
I am not certain that the explanation assists the Contemnor. He also sought to explain, by a reference to the fact that the Crown were asking repetitive questions under s 38 of the Evidence Act 1995, the laughing that occurred in relation to those matters set forth in paragraph two of the Agreed Facts. He describes himself as "an idiot" for vocalising his frustration and for expressing the thoughts that were going through his head.
He also explains that the throwing of the empty cup was done in annoyance and not as an attempt to assault her Honour or cause her Honour any injury. I accept that explanation.
The Contemnor also explains that the days were long, starting at 4.00am to be woken in order to be brought to Court for a 10.00am start, and the absence of the complainant for the first couple of days was a matter where he thought he was being the subject of games that were being played.
The tiredness and lack of sleep due to stress are given as reasons for his conducting himself in a way that he ought not. The Contemnor describes himself as an "emotional wreck", in part because he could see how much it was upsetting his mother and partner, both of whom were in Court each day.
The Affidavit, which, I repeat, was sworn evidence, describes the effect on the Contemnor when he read the brief for these proceedings and after hearing from his lawyers and his mother and he describes what he did in Court as him being "disgusted and ashamed of" himself. He says (at paragraph 14 of the Affidavit): "I made a disgrace of myself in front of my mother, partner and the public. I saw my mother cry. That only added to my feelings of anger and frustration at the situation I put myself in."
While he refers to the bullying he experienced while growing up and his feelings of frustration as a "voiceless participant" in what he considered was an "unfair trial" he makes clear that, in hindsight, he saw "the stupidity and offensiveness of [his] actions". He also makes clear that were he to appear again before the Judge he would offer her his "deepest and most sincere apology because as both a judge and a woman, she should not have been spoken to in the way that I did".
Tendered to the Court is also a letter of apology from the Contemnor, which I will not repeat in full. Nevertheless, it is fair to describe it as a complete and unqualified apology for the conduct in which the Contemnor engaged. I am told, and accept, that the apology was unsolicited and not the subject of advice either from counsel or his instructing solicitor.
The apology is written to the Court and expressly says it is with "all sincerity and contriteness". The Contemnor makes clear that he is not trying to excuse or defend his behaviour during the trial in the District Court but, instead, is asking for mercy "from a judicial system that owes me none".
The Contemnor reiterates that he is guilty of contempt; that he is ashamed and disgusted at himself; that he caused his mother and partner more shame and embarrassment than they deserved; and that he directed his confusion and fear during the trial at the Judge, who deserved nothing but respect and received nothing from him but arrogance and stupidity.
He describes himself as a "fool". He then goes on to describe what has happened to him since his trial. This aspect I shall recite: "I have been blessed with a strong faith and have embraced Christianity since coming to gaol. Even against God have I sinned according to the Bible. Secular powers are described as God's servants to punish evil-doers and encouraging law-abiding citizens (Romans 13:1-6). As a Christian I am to regard the 'powers that be' as God ordained (John 19:11) and dutifully subject myself to civil authority. Based on all these facts I have sinned greatly and have prayed constantly for forgiveness from God. But at this point I also seek the forgiveness of Justice [sic] Huggett. I cannot justify myself ethically or morally. I was a fool and humbly hang my head and hope she can know how sorry I am."
The letter to the Court goes on to accept the authority of the Court, the need for justice to be done and the benefits of living in Australia and in a democracy with a judicial system that must not be undermined or disrespected.
The cynic in me is somewhat sceptical of the extent of the apology. However, it cannot be said the apology is qualified or anything other than full and complete. There is no evidence that the apology is disingenuous.
I take the apology as an important factor in determining the degree to which specific deterrence is a factor to be considered in imposing an appropriate sentence. General deterrence is and remains significant. Punishment is also significant.
Nevertheless, as earlier explained, the Contemnor was found guilty of, and sentenced for, the crime with which he was charged and was then before the District Court. Any sentence that I impose must comply with the principles of totality and I will impose a sentence, to the best I am able, which takes account of the totality of the criminal conduct and as if the contempt punishment were being imposed at the same time as the sentence imposed on 2 April 2015 and commencing 6 April 2013. The non-parole period for that sentence concludes on 5 December 2017.
I take the view that the criminal conduct associated with the contempt is and remains a separate and distinct criminality from the criminal conduct of assault occasioning and demanding property with menaces. As a consequence, it should have a punishment that is cumulative, at least in part.
I take account of the plea of guilty which, in matters such as this, is important and involves a significant utilitarian value. Further, in a matter such as this, coupled with the letters and the Affidavit, the Contemnor's conduct signifies remorse.
Given the contents of the letter and the unchallenged change in character brought about by a new religious fervour, the prospects for rehabilitation are good. I do not set the discount for the utilitarian value of the plea of guilty at the highest level. I do not consider it occurred at the earliest time. I do not take account of the strength of the Crown case in qualifying the discount, but I set the discount at 17½ %.
As earlier stated, the offences are serious. In my view they would ordinarily warrant a custodial sentence but, because of the difficulty of imposing them in the current custodial circumstances of the Contemnor, sentences less than a custodial sentence may more adequately reflect an appropriate punishment for the seriousness and insult to the Court and the defiance of its function.
It is an important element of the exercise of judicial power that courts exercise their jurisdictions in a manner which is fair and unbiased and is seen to be fair and unbiased. Unreasonable, inappropriate and insulting attempts at categorising the conduct of an officer of a court, as other than unbiased and fair, strike at the heart of the capacity of courts to undertake their functions and to be seen to be doing so appropriately.
Of course, if there be a basis for asserting that a judge is conducting proceedings in a manner that gives a ground for a complaint of apprehended bias (or actual bias), such matters should be raised, but cannot be raised in the manner that the Contemnor sought to do, albeit possibly as a reflection of his perceived frustration.
I have considered the comparable cases. Many of them impose sentences that do not seem to reflect the seriousness of the offences involved. The sentences for contempt are generally at a lower level than sentences otherwise imposed for offences involving an interference with the administration of justice.
Equality before the law is an essential aspect of the exercise of judicial power and is embodied in the term "equal justice". It is, as the High Court has made clear, an aspect of the rule of law. It requires that persons who are relevantly equal be treated alike and persons who are relevantly different be treated differently, with the difference between them being a rational reflection of the relevant differences: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.
When applied to persons charged with similar offences arising out of unrelated events, the norm of "equal justice" requires "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence": Green v The Queen; Quinn v The Queen, at [29], citing, with approval Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [47] - [56].
It seems to me, given the seriousness of the offences, the nature of them, the number of them, the fact that they occurred over a number of days and the manner in which they disrupted the proceedings, that a custodial sentence would generally be warranted and a non-custodial sentence would not ordinarily sufficiently reflect the seriousness of the offences in question.
The qualifications on the general rule is the totality principle and the need to fix and impose a sentence that, on the one hand, reflects separate punishment for these offences and, on the other hand, does not impose a sentence greater than the total criminality warrants.
If I were sentencing at the time of the current sentence being served, I could have fixed a commencement date before the current sentence. To fix a sentence now that, without any further wrongdoing, required more time in custody would pay insufficient regard to the rehabilitation that the Contemnor has undergone. To fix a sentence of imprisonment and then suspend it, pursuant to s 12 of the Crimes (Sentencing Procedure) Act would provide no additional penalty for these offences, because of the effect of parole and s 47(4) of the Sentencing Act.
In the peculiar circumstances of this offender, I intend to fix a non-custodial sentence of some length that will ensure his rehabilitation and good behaviour for a substantially longer period than parole (if granted) would allow.
In all of the circumstances, I make the following order: 1. The Contemnor, Wahib Fajloun, is sentenced, pursuant to the terms of s 9 of the Crimes (Sentencing Procedure) Act 1999 and the Contemnor is directed to enter into a good behaviour bond for a period of four years commencing 6 December 2017 and concluding 5 December 2021.

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