[45] Having considered the provisions of the statute and the above authorities, I have concluded that where a contemnor is now to be imprisoned for contempt, the Crimes (Sentencing Procedure) Act applies."
10 In R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132, Johnson J referred to the relationship between general deterrence and denunciation of the contempt. That case involved the refusal by a witness to take an oath. His Honour said this at [86]:
"[86] There is an overlap between considerations of general deterrence and denunciation of the contempt. The vindication of the criminal justice system requires a meaningful sentence to denounce a contempt of this class."
11 In sentencing for contempt in relation to conduct involving jurors or witnesses, the courts have assiduously guarded the role played by each in the administration of justice. For example, in Regina v Omar Rustom [2005] NSWSC 61 at [3], Dunford J said this:
"[3] As I say, he now appears for sentence in relation to that. One can understand him being upset and emotional at the verdict against his brother. But the task of the jury is often very unpleasant and is always onerous, difficult and carries with it great responsibility. Accordingly, the jury must be protected and permitted to perform its function without any threat of intimidation or abuse."
12 Lastly, in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 450, Kirby P made the following comments concerning the protection of witnesses:
"There is no doubt that it is a serious contempt to interfere with a witness by words or actions, in such a way as to diminish or question the privilege of the witness to give evidence to a court without fear or favour. The courts have repeatedly stressed that they will preserve the freedom and integrity of witnesses. They will not allow them to be intimidated from giving their evidence either before a trial, at the hearing or after the trial is concluded…"
Relevant sentencing considerations
13 In considering the several matters that are relevant to the question of what sentence should be imposed, it is convenient to adopt the framework identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185.
The seriousness of the contempt proved
14 The plaintiff contended that the contempt was objectively serious. Senior counsel for the defendant, on the contrary, submitted that the contempt fell at what she described as "the least serious end of the scale". The task that is presented is how properly to characterise the particular acts giving rise to the charge in this case when on one view all contempts are of their very nature serious. Except in cases that can be considered to be merely technical contempts, it must be the case that all contempts are serious and should be so regarded. The defendant's actions in this case were potentially serious but did not ultimately interfere with the administration of justice. The contempt is for that reason not at the most serious end of the scale and in my opinion falls at the lower end.
Whether the contemnor was aware of the consequences to himself of what he did
15 The evidence suggests very strongly that the defendant had simply no idea that what he did would have, or was ever likely to have, any consequences at all, and certainly not consequences of the type that ultimately eventuated. The defendant originally faced two charges. The first, upon which I found the defendant not guilty, was a charge that he did an act with the intention of interfering with the administration of justice. Proof of that charge to the criminal standard would necessarily require evidence establishing that the defendant had the requisite intention, and in the face of a denial by him that he had it, one might have anticipated circumstantial evidence at least that tended to support the existence of that intention. The trial that was filmed by the defendant involved allegations concerning members of a motorcycle gang. Accordingly, by way of example, one might have anticipated that there would be evidence linking the defendant to that organisation, or even one like it, at the time or in the past, or at a slightly different level, that there would have been some evidence more generally connecting the defendant to the events that were unfolding at the trial. There was none.
16 The defendant gave evidence about why and how he ended up in the court in the first place. There are curious aspects of that evidence but none that permits me to say that the defendant's explanation was either false or even hard to believe. The fact of the matter is that there is no evidence to the contrary. Taken at face value, therefore, the evidence strongly suggests that the defendant did not know that exposing film of proceedings in court during a trial was unlawful, or that there were consequences for him in doing so. This is to be contrasted with cases in which a defendant throws paint at a judicial officer or abuses a judge or magistrate in foul or disrespectful language. There can be little doubt that threatening a witness or a juror would lead inevitably to well-known or reasonably anticipated consequences for any person found to have done so. The present case is to my mind in a very different category.
The consequences of the contempt on the trial
17 I have already found that the defendant's conduct had the tendency to interfere with the administration of justice, in terms of potentially interrupting the concentration and focus of jurors and diverting their attention from their task: [2010] NSWSC 5 at [43]. I also found that the activities of an unknown person seeking to record the evidence of a witness also had the tendency to interfere with the administration of justice in terms of at least distracting, if not actually frightening and intimidating, a witness of the presumed fortitude of Mr Campton, let alone a hypothetical witness of "ordinary" fortitude: [44]. The plaintiff has quite properly conceded that the seriousness of the contempt was not aggravated by any evidence that showed that the witness or any juror in fact saw the defendant using the camera or that he or she was in fact distracted, frightened or intimidated by what occurred.
18 Tendency and potential are, however, quite different things from consequences in fact. The evidence suggests that, apart from the time that was taken up by the trial judge in dealing with the defendant, there was no direct impact of the defendant's actions in court upon the running of the trial, or upon any of the witnesses who were called, or upon the deliberations or wellbeing of the jurors. There is in particular no suggestion that the witness who was giving evidence at the time was discomfited or even whether he later became aware of what had occurred.
19 There was certainly evidence that the defendant had to be removed from the courtroom during the trial and in the presence of the jury and the witness. There was also evidence that the jury had on the previous day communicated some concerns about the presence in Court of some particular members of the public gallery. However, the defendant's removal from the courtroom was relatively unobtrusive and certainly not disruptive of the proceedings, as the CCTV footage of the incident reveals. Nor is there any suggestion that the members of the public gallery who previously troubled the jury were in any way associated with, or included, the defendant. Once again, this is to be contrasted with the examples cited earlier, where the whole process of a trial is directly assailed and disrupted by the conduct in question.
Whether the contempt was committed in the context of serious crime
20 The plaintiff submitted that the contempt was committed in the context of a trial for significant offences of violence and in respect of a witness who had been a victim of one of the assaults alleged at the trial. However, this is not in my opinion what is anticipated by the notion of the context of serious crime. It will be recalled that in Wood, Dunford J was dealing with a refusal by a witness to answer questions directed to him in the course of giving evidence at a Royal Commission. In that context his Honour said this at 186:
"The contempts were committed in the context of serious crime, in that the corruption disclosed by the Royal Commission saps at the very fabric of the rule of law in our society, and is of the utmost seriousness and concern.