Prothonotary of the Supreme Court of New South Wales v Ibrahim

Supreme Court of NSW|2023-07-18|Before: Yehia J, Davies J

Prothonotary of the Supreme Court of New South Wales (Plaintiff) Sleiman Ibrahim (Defendant) Representation: Counsel: D Kell SC / C Raad (Plaintiff) A McGrath (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Cambridge Law (Defendant) File Number(s): 2022/00134499 Publication restriction: Nil

Evidence on the Hearing

At the hearing on penalty, Mr David Kell SC appeared with Ms Courtney Raad for the Prothonotary. Mr Adam McGrath appeared for the contemnor. The evidence relied upon by the plaintiff includes: the signed agreed facts with annexures; the contemnor's updated criminal history dated 10 July 2023; the contents of the affidavit of Joanna Fisher affirmed 3 May 2023, together with exhibit JF-1; and an outline of written submissions on penalty, complemented by annexure A, a schedule of penalties.
In addition to this material, the plaintiff relies on exhibits C and D, namely, a letter setting out communications between the Crown Solicitor's Office and Corrective Services New South Wales (CSNSW) and proposed bond conditions, respectively. In providing this material, the plaintiff does not concede that a penalty other than full-time imprisonment is appropriate. Rather, the plaintiff has sought to assist the Court by providing all relevant material.
The contemnor relied upon two reports prepared by Dr Kim Dilati, dated 28 August 2022 and 7 June 2023, and a letter of apology prepared by the contemnor dated 12 July 2023. Additionally, the contemnor read the affidavit of Julieane Mansour affirmed on 10 July 2023, the affidavit of Lauren Eldabet affirmed on 12 July 2023, and exhibit LE-1 containing voluminous medical records and correspondence from Odyssey House NSW dated 12 July 2023. A short letter from the contemnor's treating psychologist, Mr Khaled Kamalmaz, dated 17 July 2023, was also tendered. It confirms that arrangements have been made for treatment, namely, cognitive behavioural therapy (CBT) treatment.
Further material was subsequently filed on behalf of the contemnor. The affidavits of Lauren Eldabet affirmed 1 August 2023 and Julieane Mansour affirmed 19 October 2023, were read in the proceedings. The further evidence outlines the efforts made by the contemnor to arrange residential rehabilitation. It appears that he has not been suitable to date because he is required to reduce his methadone intake. In addition to exploring a residential rehabilitation program at Odyssey House NSW, the contemnor has completed an application to St John of God Burwood rehabilitation facility. That facility offers a three-week rehabilitation program at a cost of $24,000. The contemnor has upgraded his health insurance to meet the relevant costs.
For completeness, it is noted that further supplementary submissions of the Prothonotary, dated 4 August 2023, were also filed.

Agreed Facts

The facts upon which the contemnor is to be sentenced are agreed. The trial of Omar took place between 14 March 2022 to 19 April 2022. The Crown presented an indictment against the accused with a single count alleging that, on 21 April 2012, he murdered Kevan Safwan.
In January 2022, the contemnor was served with a subpoena to attend to give evidence at the Omar trial. The contemnor had not provided a witness statement to the police nor otherwise agreed to be a Crown witness at the Omar trial. He was called on two occasions, namely 14 and 29 March 2022, to give evidence on a Basha inquiry. The relevant trial transcript is annexure A to the Statement of Agreed Facts. It is necessary to set out some extracts of that transcript in the body of this judgment.
On 14 March 2022, the contemnor was sworn. He answered some preliminary questions as to his full name, and then refused to give evidence. The relevant exchange relating to the first occasion on which the contemnor refused to answer questions is as follows: " Q. Sir, can you please tell the Court your full name? A. Sleiman Ibrahim. Q. Thank you. Sir, the acoustics in this courtroom are not great so can I please ask you to keep your voice up. A. That's the way I talk. Q. That's the case, sir, but just to make sure you speak in a loud voice like you are now. Sir, I want to take you back to April of 2012. Whereabouts were you living at that time? A. I'm not going to answer any questions Q. I see. And, sir, why is it you won't answer any questions? A. Just because I don't want to. I can't remember nothing and my mind's not with me and I don't want to answer any questions. HIS HONOUR Q. Mr Ibrahim, is this on the basis that you might incriminate yourself? A. What was that, your Honour? Q. I'm sorry? A. What was that? Q. Are you refusing to answer questions because it might make you look as if you've done something wrong? A. No, no, I just don't want to answer any questions. Q. Well, you don't really have a choice about that. A. Well-- Q. If you're not prepared to answer questions you might be found in contempt of court? A. If I'm contempt of court then I'm in contempt. Q. You understand that if you are found in contempt of court you may be sentenced to imprisonment? A. Yeah. Q. And you're not, in those circumstances, still prepared to answer? A. No, I'm not going to answer anything."
The Prosecutor requested an opportunity to contact a solicitor, Mr Rahal, who had at some stage acted on behalf of Mr Ibrahim, so that legal advice could be provided to the contemnor on the issue of his refusal to give evidence. Attempts to contact Mr Rahal were unsuccessful on that day and the Basha inquiry was adjourned to a later point in the trial. Before adjourning, Davies J emphasised the importance of obtaining legal advice and the serious consequences of refusing to answer questions, as evidenced in the following exchange: "HIS HONOUR: Mr Ibrahim, I strongly suggest that you speak to a solicitor, whether it's Mr Rahal or somebody else. WITNESS: Yes your Honour. HIS HONOUR: Because if you continue to refuse to answer questions it may have severe consequences for you. WITNESS: Yes your Honour. HIS HONOUR: All right. You remain on the same bail conditions that were granted on Friday. WITNESS: Yes your Honour. HIS HONOUR: And you must be here whenever the Crown requires you to do so. Do you understand? WITNESS: Yes sir. HIS HONOUR: All right. You can step down."
On 22 March 2022, Mr Rahal appeared as amicus curiae for the contemnor. The relevant exchange appears in the trial transcript of 22 March 2022: "IN THE ABSENCE OF THE JURY HIS HONOUR: Yes. CROWN PROSECUTOR: Your Honour, Mr Rahal is appearing by way of AVL as well. Thank you. HIS HONOUR: Thank you. Mr Rahal, thank you for appearing today. I was just trying to ascertain what the position is in relation to Mr Sleiman Ibrahim. l understand that you have advised him in the past. Is that right? RAHAL: Correct, your Honour, I have. I, with your Honour's leave, appear amicus today. I don't have any formal instructions to act for Mr Ibrahim in whatever is happening in these proceedings, although I have spoken to Mr Ibrahim. I have indicated to him what his rights and obligations are in relation to what is occurring in your Honour's courtroom. I will say although Mr Ibrahim hears me, I have concerns about whether or not he actually comprehends with any significant capacity what it is I'm telling him. He is someone who I understand was recently given a placement in The Hills Clinic for his significant drug abuse and mental health issues. So while I have ... (inaudible) ... my advice to ... (inaudible) ... I can't say with certainty that he fully comprehends the significance of what is occurring. HIS HONOUR: Yes. Well, I had a concern about his understanding the other day. It certainly wasn't clear to me if he did not want to answer questions because he felt that the answers might incriminate him or whether there was just some other reason. RAHAL: Your Honour, I did go through with the relevant section that he could ask for if that was a concern. I did also indicate what your Honour has the power to do if he keeps going down that path. But I would say he is of below average intelligence, coupled with what is clearly his drug issues, and whether he was under the influence when he spoke to me, the two occasions, I'm not sure. l don't know what the reasons are or whether or not he's just simply not understanding the process. HIS HONOUR: Have you explained to him the s 128 procedure? RAHAL: Yes, I have, your Honour. I did indicate that if there's anything of concern, that that is something that can be requested or sought. But again, I can't say with any degree of certainty that - while he's listening to me, your Honour, I don't know if he's hearing me. HIS HONOUR: Right. And have you actually spoken to him since Monday of last week when he was here in court? RAHAL: After receiving your email, I made sure I sat with him yesterday evening, gave him copies of certain things to look at and consider as well in his own time. But your Honour, my impression of him yesterday was that he was not completely with me and listening. HIS HONOUR: I see. All right. Mr Crown, did you want to ask Mr Rahal anything? CROWN PROSECUTOR: Your Honour, perhaps just this one question. Sir, you mentioned that you had some concerns in relation to apparent drug use by Mr Ibrahim. Is that correct? RAHAL: Well, the effects of drug use, what appears to be him being under the influence, yes. CROWN PROSECUTOR: You also made mention of what you thought may be some mental health issues? Have I got that correct? RAHAL: Yes, and I'm aware of those because I've acted for him in traffic matters in the past. So I'm aware that he has a history of it. So I'm not sure if it is his mental health or coupled with his drug use or a mixture of the two. I don't know. CROWN PROSECUTOR: Sir, do you have any documentation or material in relation to this issue of apparent mental health issues? RAHAL: I can look. Not something that's readily available. I'm talking about acting for him maybe four years ago. CROWN PROSECUTOR: I see. RAHAL: I can't-yeah, so it's not something that I did recently. CROWN PROSECUTOR: Okay. Yes, thank you, your Honour."
On 29 March 2022, the contemnor was again called to give evidence. Prior to the contemnor being called, Davies J enquired as to whether the contemnor was going to give evidence. The Prosecutor responded by indicating that the prosecution had deliberately not spoken to him that morning but understood that the contemnor's position remained unchanged.
Upon being called the following exchange took place: "HIS HONOUR Q. Mr Ibrahim, can I just ask you, are you prepared to answer questions from the barrister? A. No, I'm not. Q. Is that because you fear that what you say might lead to you being prosecuted? A. No, I'm not. I just don't want to answer any questions. Q. Do you understand that I can give you a certificate that will prevent you from being prosecuted arising from any evidence you give? A. No, it's okay. Q. Sorry? A. No, I don't want to answer any questions, your Honour. Q. Do you understand that if you continue to refuse to answer questions you can be charged with contempt of Court? A. Yes, I do. Q. And do you understand that the penalty for being found in contempt may be a prison sentence A. Yes, your Honour. Q. ln the circumstances, you're still not prepared to answer any questions? A. Yes, that's correct."
Once it was clear that the contemnor was not going to give evidence, the Prosecutor made an application seeking to tender portions of the transcripts of evidence given by the contemnor before the New South Wales Crime Commission (the Crime Commission) on 2 October 2012 and on 11 July 2018. That application was made on the basis that the contemnor was unavailable to give evidence within the meaning of clause 4 of the Dictionary to the Evidence Act 1995 (NSW). With respect to the evidence given in 2012, the Crown relied upon s 65(2)(b) of the Evidence Act, and in respect of the evidence given in 2018, reliance was placed on s 65(2)(d). The Prosecutor did not ultimately press the evidence relating to the examination of the contemnor in 2012.
Davies J admitted into evidence seven extracts of evidence given by the contemnor under compulsion and under oath in the Crime Commission on 11 July 2018: see R v Omar [2022] NSWSC 371.
On 19 April 2022, the jury found Omar Omar not guilty of the murder of Kevan Safwan.
The contemnor has been on bail since 11 May 2022, in respect of the contempt charge. There have been no breaches of bail and the contemnor has been compliant.

Applicable Legal Principles

The penalty for the common law offence of contempt is at large and may include imprisonment. The power to punish for contempt derives from the Court's inherent jurisdiction to safeguard the administration of justice and uphold the rule of law: see Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 (Maniam [No 2]) at 314, 319 per Kirby P (Mahoney JA and Hope A-JA agreeing).
Pt 55 r 13 of the Supreme Court Rules 1970 (NSW) provides: 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. cf HCR, O 56, r 9. (2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
The Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) does not apply to the imposition of a penalty for contempt: see Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [49] per Basten JA (Meagher JA agreeing). Although the CSPA does not apply in imposing a penalty for contempt, the Court should nevertheless apply the common law principles which are reflected in ss 3A and 21A of the CSPA.
In the same way, while these proceedings are not criminal in nature, the same policy considerations that apply with respect to pleas of guilty to criminal offences apply here. The contemnor pleaded guilty at an early opportunity. The plaintiff accepts that a discount of up to 25% would be appropriate in this case. In light of the early plea of guilty, a discount of 25% will be applied.
While the function of dealing with a person for contempt in civil proceedings has much in common with the sentencing task in criminal proceedings, it remains the case that the court is exercising different powers serving different purposes: see He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun) at [63] (McCallum JA). The underlying rationale of every exercise of the contempt power is a necessity to "uphold and protect the effective administration of justice": see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 107.
The principles to be applied in imposing a penalty for contempt in the face of the court were outlined by Kirby P (as his Honour then was) in Maniam [No 2] at 314, 316: "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. … It is appropriate to evaluate the opponent's conduct, relevant to punishment, by having regard to the objective seriousness of the offence found; the considerations relevant to his culpability; and the considerations relevant to demonstrating contrition or otherwise apt for evaluating his conduct."
The principles relating to punishment for contempt of court, including the failure to attend and the failure to give evidence, were usefully summarised in the judgment of Wood v Galea (1996) 84 A Crim R 274 at 274-292. Several factors relevant to an assessment of the proportionate punishment for contempt were enumerated by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as follows: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself or herself or what he or she 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. the need for denunciation of the contempt.
These factors were referred to with approval by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 and by the Full Court of the Federal Court in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [102] per Besanko, Wigney and Bromwich JJ. See also He v Sun at [10] and [55] per Bell P (Gleeson and McCallum JJA agreeing) and NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 at [31]-[32] per Bell P.
In Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 at [67], Payne JA observed that an additional consideration is the likely effect that punishment will have on the contemnor, including any hardship it might cause.

Objective Seriousness

The administration of justice requires and relies upon, respect for and engagement with, the court's processes. This offence involved a wilful refusal to give evidence which is regarded as a serious contempt because it has a tendency to undermine the authority of the court and adversely interfere with the administration of justice.
However, objective seriousness must be assessed having regard to the particular circumstances and the facts relating to the contempt. As was observed by Beech-Jones CJ at CL (as his Honour then was), the authority of the Court is not so fragile that it can only be vindicated by committing a vulnerable person to jail without him being afforded one last opportunity to comply with orders made against him: see Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407 (Rollinson) at [104].

The Seriousness of the Contempt

The contemnor's conduct in refusing to give evidence represents a serious contempt of the Supreme Court. In Registrar of the Court of Appeal v Gilby (Court of Appeal (NSW), Mahoney JA, Priestley, and Clarke JJA, 20 August 1991, unrep), the Court observed at 27: "… it may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the Law will be, and will be seen to be, punished."
In written submissions filed on behalf of the plaintiff, reference was made to Principal Registrar of the Supreme Court of NSW v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 (Tran) at [37], where Buddin J said: "it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind". I do not proceed on the basis that this is a binding principle but rather an observation made by his Honour, having reviewed a schedule of past penalties relied upon in that case. While I accept that the offence is serious, this Court's discretion to impose a non-custodial sentence is not fettered by first having to find that a case is "exceptional".

Whether the Contemnor was Aware of the Consequences to Himself or What He Did

Davies J warned the contemnor on more than one occasion of the consequences he faced if he refused to give evidence. His Honour did so on 14 March 2022 (see at [13]) and on 29 March 2022 (see at [17]).
Davies J not only warned the contemnor on more than one occasion, but also provided the contemnor with an opportunity to obtain legal advice about his rights and obligations. The consequences of refusing to give evidence were made clear to the contemnor. He understood that failure to give evidence would lead to serious consequences including, potentially, a term of imprisonment. I am satisfied that the contemnor was aware of the consequences of failing to give evidence.
There is evidence, however, which I accept, and which will be summarised below, that the applicant has a long history of substance abuse and mental health issues. For reasons that will become apparent, I am satisfied that there is a causal nexus between his mental health issues and the offending, such as to reduce his moral culpability. I am satisfied that his mental health conditions operated to impair his judgment and decision-making capabilities. I will address the offender's moral culpability separately after I have summarised his subjective case including the evidence relevant to his mental health.

Actual Consequences of the Contempt

The contemnor refused to make a statement to the police. He was not a willing Crown witness. Instead, it appears that he was called as a Crown witness because he had given evidence before the Crime Commission in 2012 and 2018. The Crown, at trial, abandoned the tender of evidence of representations made by the contemnor before the Crime Commission in 2012. The representations made by the contemnor before the Crime Commission in 2018, were relied upon by the Crown at trial.
Davies J admitted those representations, described as seven extracts of evidence, being representations made by the contemnor, during his examination. Those extracts are set out in the judgment of Davies J: see R v Omar [2022] NSWSC 371 which has been provided to me and to which I have had regard. It is not necessary to reproduce those extracts in this judgment.
It is not apparent that the contemnor's refusal to give evidence adversely impacted upon the Crown case. The plaintiff does not contend that the contemnor's failure to give evidence led to the verdict of not guilty.
The Crown was able to adduce the relevant evidence given by the contemnor during his examination before the Crime Commission. It is highly unlikely that the Crown's case would have been strengthened if the contemnor had given oral evidence before the jury in light of his reluctance to cooperate. An application pursuant to s 38 of the Evidence Act to cross-examine the contemnor would very likely have been successful. However, it is unlikely that this would have added anything of value to the Crown case. Arguably, such cross-examination would have served to undermine his credibility.
Although the contemnor's refusal to give evidence interfered with the administration of justice, it did not deprive the prosecution of the evidence. The telephone intercept recordings were placed before the jury. Extracts of testimony that the contemnor had previously given under oath in the Crime Commission on 11 July 2018, were also admitted into evidence in the trial.
I am not satisfied that the contemnor's refusal to give evidence deprived the prosecution of the evidence. I do not find that his failure to give evidence contributed to the not guilty verdict.

Whether or not the Contempt was Committed in the Context of Serious Crime

The contempt was committed in the context of a serious crime. Omar Omar was charged with murder, an offence punishable by life imprisonment.

The Reasons for the Contempt

When called at trial, the contemnor did not provide any reason for refusing to give evidence. He did not claim that he was motivated by a fear for his safety or that of his family.
However, as outlined in the psychological report prepared by Dr Dilati, dated 7 June 2023, the contemnor reported that although he had not been the victim of threats or intimidation, his refusal to cooperate as a witness was due to being "scared", given the nature of the proceedings and "the people involved". He alluded to understanding the consequences if he were to cooperate with the Crown and perceived that his family would be at risk.
It is unsurprising that the contemnor did not express his fears when called in the trial, given that the accused was present. Dr Dilati states that although the contemnor did not elaborate on the consequences he may suffer if he had given evidence, he was "hypervigilant, hesitant, nervous and unwilling to potentially risk the safety of other family members".
In the Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495 at [22], Bellew J noted that the contemnor's reason, as contained in a pre-sentence report, for refusing to take an oath and give evidence "goes to the issue of the contemnor's personal safety" and "amounted to what he described as 'non-exculpatory duress'". His Honour went on to say that this type of duress is not a sufficient defence, but a mitigating factor pursuant to s 21A(3)(d) of the CSPA.
His Honour at [49]-[50] emphasised the substantial role of general deterrence in sentencing offences of contempt: "[49] The importance of general deterrence is not lessened by the non-exculpatory duress to which the contemnor pointed. In Tiknius v R [2011] NSWCCA 215 Johnson J (with whom Tobias AJA and Hall J agreed) said (at [51]): 'General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell at 536-539 [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences": Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities (R v Liu at [34]) or to be naive (Anna Le v R at [32]).' [50] His Honour's observations were obviously made in a context different to the present but they are nonetheless apt. As Callaway JA observed in R v Roach [2005] VSCA 162 at [15] (Ormiston and Charles JJA agreeing): 'General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat'."
It is important not to conflate an assessment of objective seriousness with the weight to be afforded general deterrence. Here, I am considering factors relevant to the assessment of the objective seriousness of the offence. One of those factors is the reasons for the contempt. I am satisfied that, although the contemnor was not actually threatened or intimidated by the accused or by anyone on his behalf, he did fear for his safety, a fear that was operating at the time he was called to give evidence, and which motivated his repeated refusal to answer questions.
Notwithstanding the seriousness with which the courts treat a refusal to answer questions, I consider that the offence is at the lower end of seriousness for this sort of contempt having regard to the contemnor's motivation and the fact that the prosecution was not deprived of the evidence, given the admission at the trial of the representations made by the contemnor during his examination in July 2018.

Whether the Contemnor has Received any Benefit by Indicating an Intention to Give Evidence

The contemnor has not received any benefit by indicating an intention to give evidence.

Whether there has been any Apology or Contrition

Mr Ibrahim did not apologise to the Court for his contempt. He did not express remorse when speaking to Dr Dilati. However, during the hearing on penalty on 18 July 2023, the contemnor relied upon an apology letter which became exhibit 3 in the proceedings. Mr Ibrahim apologised for disrespecting the Court and explained that his reason for refusing to give evidence was that he was scared and concerned about his family's safety and that he was under the influence drugs at the time, namely Xanax and heroin.
I am prepared to accept, in light of the letter of apology and the plea of guilty, that Mr Ibrahim is remorseful and has developed insight into the wrongfulness of his conduct.

The Character and Antecedents of the Contemnor

A copy of Mr Ibrahim's updated criminal history, marked exhibit B in the proceedings reveals convictions for driving offences, drug-related offences, affray, theft, and dishonesty offences. Although he has previous convictions, he does not have a prior similar matter on his record.

General and Personal Deterrence and Denunciation of the Contempt

Personal Deterrence

I do not regard personal deterrence as a significant factor, as it is not likely that a contemnor will find himself again in these circumstances: see Trad v Pickles Auction Pty Ltd; In the matter of Carl Trad [2006] NSWSC 1177 (Trad) at [19] (Hamilton J).

General Deterrence and Denunciation

General deterrence and denunciation of the contempt are of the greatest importance: see Tran at [35]; Trad at [19]; In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 at [89]-[91].
Johnson J observed in R v Bilal Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 at [78]: "General deterrence is a most important factor on sentence in this case. Persons who are called as witnesses in criminal proceedings must understand that significant consequences will flow from a refusal to be sworn or affirmed or to give evidence. If witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that in this regard, disobedience of the law will be, and will be seen to be, punished: Gilby at page 26."
General deterrence and denunciation are weighty considerations in this case. The Court places particular emphasis on the requirement that the penalty deters other like-minded individuals from conducting themselves in a manner that tends to subvert the authority of the Court in the process of justice.

Family and Developmental History

The contemnor was born in Sydney and resides in Riverwood with his mother. He is the eldest of his six siblings. His father died from a sudden heart attack when the contemnor was aged about 23 or 24. At about the age of 36, his brother, who was aged 25 at the time also died. He found both events "highly traumatic".
Mr Ibrahim described having a tight and close bond with his mother and siblings. Growing up, his mother was the "homemaker", and his father was self-employed in a fruit shop. His father "wasn't around much" as he worked long hours. He described a history of financial difficulties which resulted in his family living in housing commission accommodation.
He reported that he was "not a bright student" and denied suffering from any speech or intellectual difficulties. He played Rugby League until the age of 15. Mr Ibrahim reported exhibiting behavioural problems whilst growing up, including "setting" a fire behind his school when he was aged 13, bullying others and receiving several suspensions.
Mr Ibrahim had an unstable educational history. He attended primary school at Punchbowl Public School and two high schools, being Punchbowl High School and Narwee High School. He was eventually expelled during Year 9 or Year 10 for fighting and bullying others.
His employment history consisted of painting houses "on and off for one to two years" from the age of 19 until 25. At the age of 25, his employment was terminated. Mr Ibrahim's employment history has been unstable but more recently, he has obtained a traffic control licence and has completed 12 to 15 shifts for "All Roads". He is currently employed as a traffic controller and painter with Pixar Painting Company.
The contemnor has had three long term relationships and has one daughter with his former partner Angelica. He has a tumultuous relationship with her. Although he wants to maintain contact with his daughter, he acknowledges that he is not a suitable role model due to his substance abuse. He has not seen his daughter since April 2023.

Drug and Alcohol Use History

The contemnor has been using heroin since the age of 14. From the age of 15 or 16, he reported consuming cocaine about once a month until the age of 30. He also consumed cannabis and abused prescription drugs until the age of 27. He has experienced more than one overdose, although not always intentional. He stopped using heroin and began consuming 40 millilitres of methadone per day after the death of his father. In April 2022, he stopped taking methadone and started a monthly depot injection of buprenorphine instead.
In approximately July 2022, he relapsed, and was spending "around $100 a day" on heroin. In September 2022, he recommenced taking 65 milligrams of methadone. He was also using 5 milligrams of Valium three times a day which he reported was prescribed by his doctor, although also acknowledged his use of non-prescribed benzodiazepines.
Further evidence filed on 1 August 2023, demonstrates that efforts have been made by the contemnor to secure residential rehabilitation at Odyssey House NSW. The contemnor has not been able to do so to date, because he is required to reduce his methadone intake. The likelihood of the contemnor securing a bed for residential rehabilitation at Odyssey House NSW cannot be confirmed until a complete assessment is carried out. He continues to be ineligible for the Odyssey House NSW residential rehabilitation program because of his methadone dosage.
In addition to the contemnor's attempts to secure residential rehabilitation at Odyssey House NSW, the contemnor has completed an application to St John of God Burwood rehabilitation facility. Further evidence filed on 19 October 2023, reveals that the contemnor attended his first consultation with Professor Neil Jeyasingam, a psychiatrist that specialises in drug addiction at St John of God Burwood rehabilitation facility, on 23 August 2023. Professor Jeyasingam recommends that the contemnor be admitted as an inpatient at either St John of God Burwood rehabilitation facility or other inpatient options, alongside a drug reducing regimen.
Due to the costs involved in entering the 3-week rehabilitation program at St John of God Burwood rehabilitation facility, the contemnor has added hospital cover to his existing healthcare plan to cover the admission fee. The contemnor has now been accepted into St John of God rehabilitation facility and can commence the program on 20 November 2023.

Mental Health History

The contemnor has reported a history of mental health issues. In 2019, he was referred to a psychologist, Mr Damien Hayes through his GP, Dr Chauhan. He was diagnosed with post-traumatic stress disorder (PTSD), major depressive disorder (MDD) and panic attacks. He attempted suicide by heroin overdose in the same year after the death of his brother. He medicated with 30 milligrams of Endep and 2 milligrams of Xanax, which he ceased in March 2022.
Dr Dilati observed that during her initial assessment with the contemnor he was highly motivated to abstain from all drug use. Subsequently, he appeared to be less motivated. He reported symptoms consistent with agoraphobia, which prevents him from leaving the house to attend appointments. During his initial assessment with Dr Dilati, he also denied the presence of psychotic symptoms and perpetual disturbances. However, since then, he complained of paranoia, continuing auditory command hallucinations, social anxiety, and a fear of judgment by others.
Dr Dilati opines that the contemnor's existing mental health conditions, coupled with his substance abuse will be further exacerbated if he is sentenced to term of imprisonment. His limited access to mental health services and family support in custody will have an adverse impact on his rehabilitation prospects. He continues to lack insight and self-awareness into his mental health difficulties, which is demonstrated in his failure to engage in the treatment plan prepared by Dr Dilati in August 2022. Dr Dilati is of the view that it is essential that he receives treatment for his mental health and substance abuse to reduce his risk of reoffending and improve his psychosocial functioning.
During the course of these proceedings, Mr Ibrahim has become more insightful with respect to the importance of treatment, as evidenced by his continuing efforts to secure a residential rehabilitation placement.
Dr Dilati used a range of instruments, as well as interviews, to assess Mr Ibrahim. The instruments deployed include the Symptom Checklist 90 - Revised (SCL-90), the Personality Assessment Inventory (PAI), the PTSD CheckList - Civilian Version (PCL-C) and the Historical Clinical Risk Management - 20, Version 3 (HCR-20 v3).

Current Diagnosis

Dr Dilati concluded that Mr Ibrahim suffers from MDD, generalised anxiety disorder (GAD), PTSD and an opioid disorder. The contemnor is suffering from low mood and low motivation, suicidal ideation, limited sleep and concentration, persisting and unrealistic worry and social anxiety. The contemnor complained of repeated, disturbing memories of stressful situations which made him feel psychically stressed and upset. He also becomes socially withdrawn from other people and feels irritable, resulting in angry outbursts. He continues to suffer from substance abuse commencing when he was a teenager.

Nexus Between Mental Health and Offending

Dr Dilati opines that at the time of the offence, the contemnor was suffering from PTSD, depression, anxiety, and an opioid disorder which is unresolved. These mental health conditions contributed to his refusal to give evidence. He believed that giving evidence would jeopardise the safety of his family.
His chronic opioid disorder, depression and anxiety further exacerbated his cognitive ability and decision-making. Dr Dilati opines that the contemnor's existing mental health issues and the nature of the proceedings, negatively impacted his capacity to give evidence due to his perceived fear of retaliation against him and his family. Furthermore, Dr Dilati notes that in the absence of treatment or rehabilitation for his mental health and substance abuse issues, the contemnor did not have sufficient cognitive capacity to adequately consider the consequences of his actions.
The relevant sentencing principles to be considered have been referred to by me in the decision of Carl v R [2023] NSWCCA 190 at [46]-[48]: "[46] The principles to be applied when sentencing an offender suffering from mental illness, intellectual handicap, or other mental health problems, were succinctly summarised by McClellan CJ at CL, in De La Rosa at [177], a decision which has been cited with approval by this Court on numerous occasions: see Can v R [2023] NSWCCA 179 at [57]; DC v R [2023] NSWCCA 82 at [73]; PB v R [2021] NSWCCA 285 at [109]. [47] In Barbieri v R[2016] NSWCCA 295, Simpson JA,at [53]-[54] summarised the three ways in which an offender's mental condition may be taken into account on sentence: '[53] Put shortly, that an offender suffers from a mental illness may be taken into account (in his/her favour) in any or all of three ways. It may be seen (where it is shown to be causally related to the commission of the offence) to reduce the moral culpability of the offender; it may indicate that the offender is an unsuitable vehicle for the application of the principle of general deterrence; and it may mean that a prison sentence will "weigh more heavily" on that offender than it would on others. These are well established principles and were spelled out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. (In truth, the first and second of these state essentially the same proposition: see the analysis by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [254]. The reason that general deterrence is accorded less weight is because the mental disorder reduces the offender's moral culpability. This, no doubt, was what the sentencing judge had in mind in [141] of the Remarks when he moved from his assessment of the applicant's moral culpability to the weight to be given to general deterrence.) [54] Conversely, by reason of a mental illness, an offender may present more of a danger to the community, which may, accordingly, call for greater emphasis on the principle of special deterrence.' [48] The question of whether there is a casual connection established between an offender's mental health condition or intellectual impairment and the offending behaviour should not be approached in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case: see Luque v R [2017] NSWCCA 226 at [114] -[116] (Hamill J)."
In Moiler v R [2021] NSWCCA 73 Button J (Basten JA and Davies J agreeing) said, at [59]: "[59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it."
I am satisfied that the contemnor's mental health conditions, which were operating at the time he refused to give evidence, contributed to the commission of the offence, such as to reduce his moral culpability.

Power to Impose a Suspended Sentence

In imposing a penalty for an offence of contempt, the Court has the power to sentence a contemnor to a sentence of imprisonment that is suspended. In Prothonotary of the Supreme Court of New South Wales v Fajloun [2016] NSWSC 927, Rothman J relevantly said: "[18] 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."
The parties agree that this Court has the power to impose a sentence of imprisonment that is suspended upon conditions to which the contemnor is required to adhere. The source of the power is the inherent jurisdiction of the Supreme Court.
The power is also reflected in the language of Pt 55 r 13 of the Supreme Court Rules 1970 (NSW), which recognises that the committal of a person to a correctional centre may be suspended upon the contemnor entering into a bond to be of good behaviour and adhering to the terms of the bond.
A suspended sentence should be for a fixed term, and the period for which the execution of the sentence is suspended should be specified, and the conditions attaching to a bond should also be stated.
The parties also agree that in suspending a sentence of imprisonment, subject to a conditional bond, the duration of the bond may exceed the term of the suspended sentence. A contemnor can be sentenced to a term of imprisonment that is suspended upon the contemnor entering a bond subject to conditions for a specified duration that exceeds a term of imprisonment that is suspended: see Director of National Parks and Wildlife v Remme (No 2) (1992) 76 LGRA 431; Australian Securities and Investments Commission v Matthews [2001] NSWSC 735; (2001) 39 ACSR 110; Resolute Ltd v Warnes [2001] WASCA 4; Clay v Clay (No 4) [2004] TASSC 145; Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586; Commonwealth Bank of Australia v Salvato (No.5) [2013] NSWSC 924.
In Rollinson, Beech-Jones CJ at CL (as his Honour then was) sentenced the contemnor to a term of imprisonment of 9 months, suspended on the condition that the contemnor complies with the injunction for a period of 3 years to not engage in legal practice. His Honour noted the express power of the Court relevantly at [107]: "Second, SCR 55.13(3) confers on the Court an express power to suspend the order committing the contemnor to a correctional centre 'on terms' including as to "good behaviour". Before the option of imposing suspended sentences was removed from the Sentencing Act the practice was to suspend the custodial sentence for a specified period and state the conditions which the offender must comply with in the meantime, which usually included a requirement to be of 'good behaviour'. If the conditions were breached, then the matter was called up before the sentencing judge who would determine the appropriate sanction. SCR 55.13(2) appears to contemplate a similar practice. In particular it would be unfair to suspend a sentence permanently. Instead, a period of suspension should be specified. In this case the relevant condition to be complied with is the final injunction granted by Wilson J on 16 August 2021. I will specify a period of three years as the period in which the injunction must be complied with in order to suspend the sentence. That period appears to be the likely period in which all disciplinary proceedings that are to be commenced can be conducted. It seems to represent the period of greatest risk of the contemnor attempting to act on behalf of clients. If the contemnor breaches her Honour's injunction in that period then, in addition to whatever action may be taken against him for that breach, it will be open to the Bar Council to apply to a judge of this Court to lift the suspension on the contemnor's imprisonment. If the contemnor complies with the injunction for a period of three years, then all the conditions of the suspension will be fulfilled. If he breaches the injunction granted by Wilson J after the three-year period, then he may face a sanction for that breach, but he will not face an additional sanction of having the suspension of the custodial sentences which were imposed today, lifted."
The Prothonotary submits that a bond that requires entry into a residential rehabilitation placement may be regarded by the Court as more onerous (and thus potentially a more realistic sentencing alternative to full-time custody) than a bond requiring only outpatient treatment.
As indicated above, a contempt of this nature is a serious offence and general deterrence and denunciation carry significant weight in the sentencing exercise. For these reasons, a term of imprisonment is warranted. In making that determination, I am mindful that the principle that imprisonment is a punishment of last resort applies notwithstanding that contempt is not part of the criminal law. As McCallum JA (as her Honour then was), stated in He v Sun at [68]: "[68] … imprisonment is a punishment of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115] (Spigelman CJ, Wood CJ at CL and Simpson J). While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law's acceptance that the right to personal liberty is a fundamental common law right which 'cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes': Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 292 (Mason and Brennan JJ). In my view, it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing the offender to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question."
Having regard to the assessment of the objective seriousness of the contempt in this case; the reduction in moral culpability resulting from the contemnor's mental health issues; and the contemnor's treatment plan which includes residential rehabilitation, I am satisfied that the term of imprisonment should be wholly suspended. I am also satisfied that the onerous conditions attaching to the bond address the contemnor's rehabilitation, considerations of personal deterrence and the protection of the community.

Sentence

The orders of the Court are: 1. The Court declares that Sleiman Ibrahim is guilty of contempt of this Court for refusing to give evidence on 14 and 29 March 2022. 2. Sleiman Ibrahim is sentenced to a term of imprisonment for a period of 8 months commencing on 17 November 2023, such sentence is wholly suspended upon entering into a bond, self, in the sum of $500, to be of good behaviour for a period of 2 years and to comply with the following conditions for the term of the bond: 1. Mr Ibrahim must consent to supervision by one or more community corrections officers from Corrective Services NSW. 2. Mr Ibrahim must obey all reasonable directions given by the relevant Community Corrections Officer/s. 3. Mr Ibrahim must not travel interstate or overseas without written permission from the Commissioner of Corrective Services. 4. Mr Ibrahim must attend all interviews and participate in any assessments required by Community Corrections. 5. Mr Ibrahim must attend St John of God Burwood rehabilitation facility on 20 November 2023, and participate in the 3-week residential rehabilitation program and continue rehabilitation thereafter as directed by representatives of St John of God Burwood rehabilitation facility. 6. Mr Ibrahim must continue treatment with and obey all reasonable directions of Professor Neil Jeyasingam or his delegate, for as long as deemed necessary. 7. Mr Ibrahim must accept all directions with respect to medication(s) and treatment as directed/prescribed by his treating doctor and treating psychiatrist. 8. Mr Ibrahim waives his rights to medical confidentiality, with respect to treatment for his mental health conditions and treatment for his substance abuse, for all his doctors, clinicians, health professionals, counsellors, and support workers, and a community corrections officer who is supervising him, to enable them to immediately notify the Court of any breach by him of the above orders.

Notations 1. Corrective Services NSW is to supervise Mr Ibrahim for the term of the bond, namely 2 years, but may suspend (may thereafter reinstate) supervision at an earlier stage if considered appropriate by Corrective Services NSW. 2. Supervision is to be undertaken by Corrective Services NSW with respect to both general and treatment conditions set out in the orders. In the event of any suspected or known non-compliance of a condition by Mr Ibrahim, Corrective Services NSW must notify the Court so that the Court can take such further action (including issuing a warrant for arrest if required) as the Court considers appropriate. 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: 29 November 2023

(2021) 104 NSWLR 518

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