HIS HONOUR: You realise contempt of court is a very serious matter, don't you?
A. Well, you are going to do it anyway, so such is life."
10 The Crown arranged through the Bar Association on a pro bono basis for counsel to see the contemnor to advise him as to his situation following the behaviour outlined. After an opportunity had been given for the contemnor to consult with counsel, the contemnor was brought into Court on 30 September 2005. He was informed that in the perception of the Court it was considered that his behaviour on the previous day constituted contempt of court and he had read to him what occurred in the passage I have set out above (T 510 and following).
11 The contemnor was then informed that the Court considered his behaviour constituted a very serious contempt of court, and he was informed that he would be brought back to court on 5 October 2005 after having the opportunity of reflecting on his position and obtaining advice.
12 On 5 October 2005 the contemnor was brought before the Court and informed the Court: "I have nothing I wish to say" (T 568). He was then informed he would be brought back before the Court on 11 November 2005 at 2.00 pm. Through some administrative error, arrangements were not put in place for the contemnor to be transported to court on 11 November 2005 and, hence, 9 December 2005 was appointed as the date for the contemnor to be heard on the matter of the perceived contempt. This is the setting in which Mr Young came to appear for the contemnor and this is the background against which contempt was admitted and the guilty plea was entered.
13 Plainly, the contempt of court was very serious, as a consideration of what is recorded to have occurred on 29 September 2005 discloses. Mr Young did not seek to argue that this was other than a serious contempt.
14 What then is the explanation for it? The contemnor did not give evidence on 9 December 2005 but did place before the Court a letter (Exhibit 1). Mr Young readily and properly acknowledged that it was not perceived that the contemnor would be likely to express himself adequately in the witness box and it was thought better that he put what he wanted to say in writing.
15 In Exhibit 1 the contemnor stated that he is imprisoned in the maximum security section at Goulburn and in four months time he will have served five years of his sentence. When that point is reached, he will be eligible for reclassification and movement to a medium security prison. The contemnor asserted that he has been well-behaved in prison and has received only good reports from prison officers. He has tried to keep to himself and keep out of trouble. He indicated, when approached to give evidence in this matter, he did not want to give evidence. He said that he feared for his life and the lives of his family in the event that he did give evidence. As he put it:
"If I gave evidence, I'd be labelled as a Crown witness and inmates in here don't take too kindly to snitches in prison and there's no way I'll put my life in danger for anybody, including the courts."
16 Mr Young tendered a report from Mr Taylor, a forensic psychologist. That report, dated 7 December 2005, became Exhibit 2. I record part of what Mr Taylor wrote under the heading "Opinions":
"Mr Styman has pleaded guilty to a charge of contempt of court. The circumstances relating to this offence were discussed with him. He expressed regret and remorse for having committed the offence and in particular expressed regret for treating the court with such disrespect. There appear to be 2 elements involved in the offence being his refusal to answer questions put to him in court and his disrespect for the court because of his abusiveness.
With regard to his refusal to answer questions in court he stated that he couldn't comply with requests to answer questions because of fear that he would be harmed or killed and that his family would also be harmed. It is noted that the 2 accused, one of whom is his uncle, were in court and would have heard his evidence if he had agreed to answer questions. He said: ' I can't tell you names but I was threatened that if I gave evidence I'd be bashed or stabbed and my family would be hurt as well' . The impression was gained that Mr Styman had made the value decision that less harm would come to him if he were to be in contempt of court. There is no indication that he refused to answer questions because of a desire to protect the 2 accused people who were in court at the time.
His behaviour in court and the language used by him were also discussed with him. He acknowledged that he felt very angry as it had been put to him that he had no choice but to give evidence. He stated that on the day that he was at court he perceived that there had been a great deal of pressure put on him. He acknowledged that he became very angry and reacted the way that he did in the courtroom.
His results on the tests administered to him indicate that he has considerable problems with anger both in terms of his volatility in expressing his angry feelings and at times he may not have adequate control over the way which he expresses these feelings. He could be considered as having an anger disorder.
The origins of his anger disorder lie in the abusive family environment in which he was raised. He provided a history of having been frequently assaulted by his father and he said that his siblings and his mother were also assaulted. It is frequently the case that children who have been abused in this way from an early age are frequently abusive and angry during their adulthood. There have been volumes of research which have shown the link between an abusive early environment and aggression during adult years.
Mr Styman has some insight concerning his feelings of anger and expressed a strong motivation to resolve this problem. He recognises that this is going to be important for him if he is to be able to lead a stable life in the future. He is motivated to undertake counselling and courses in anger management to help him resolve this problem."
17 Mr Young submitted on the contemnor's behalf that the Court could properly have regard to the fear entertained by him for his safety and that of his family as an explanation for why the contemnor declined to give evidence.
18 In Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490, Newman AJ noted that it was conceded in that case that a genuine apprehension of retaliation if a person gave evidence was a factor relevant to penalty: see [18]. However, in Registrar of the Court of Appeal v Raad (unreported, 9 June 1992) Kirby P, in referring to the general pressure exerted on prisoners by the prison culture to remain silent said:
"The rule of law cannot bend to that pressure. The courts must not succumb to it."
19 Although there is no sworn evidence to this effect, I am prepared to proceed upon the basis in this case that the contemnor had a concern that if he gave evidence his personal safety might be jeopardised and possibly that of family members. However, such a consideration can by no means excuse the contempt, and Kirby P's remarks in Raad address what are very important considerations.
20 It is also to be borne in mind that the contempt of court here did not only consist of the refusal to answer questions but it was the way that refusal was conveyed. The contemnor's behaviour when the court officer endeavoured to administer the oath, and so, too, the manner in which the contemnor conducted himself whilst he was in the witness box were further features of the contempt committed. Mr Young submitted that these features are to be assessed against the contemnor's background and his anger disorder referred to by Mr Taylor. This may to some extent explain why the contemnor behaved as he did, but it certainly does not excuse his behaviour.
21 I have been asked to take into account the feature that the contemnor is mid-way through serving the non parole period of a sentence and that he is doing so in protective custody with the added hardship that that entails. Any further sentence I now impose is likely to be served in protective custody as well.
22 Further, the Court is asked to take into account the efforts made by the contemnor since he has been in prison in addressing his rehabilitation. As to this, there is, of course, no sworn evidence. However, I do not lose sight of the favourable remarks on sentence by Barr J when he was sentencing the contemnor on 28 February 2003:
"[74] During a pre-trial hearing on 27 June 2002 counsel for Shannon Styman offered on his behalf that he would plead guilty to manslaughter and aggravated robbery but not guilty of the offence of sexual intercourse without consent in circumstances of aggravation if the Crown would accept those pleas in discharge of all offences in the indictment. The last charge was based upon evidence of internal injuries found on the body of Mrs Alchin. The Crown refused the offer. On 3 September 2002, before the commencement of the trial, he pleaded guilty to the aggravated robbery count. His and the Crown's attitudes were unchanged on the other counts, so he went for trial on them. The jury's verdicts accorded exactly with the pleas he had offered in June. As it turned out, no hearing time was saved because of the need to try all offenders jointly, but Shannon Styman is entitled to consideration in his sentence for his willingness by making his pleas to facilitate the course of justice by containing the trial by reducing the issues. Also to be regarded as facilitating the course of justice is the manner in which his truthful evidence at trial assisted the Crown case against the other offenders. He is entitled to consideration for the economical and realistic way in which his counsel conducted his case.
[75] He is entitled to a reduced sentence for the assistance he gave the police in the account he gave under interrogation, particularly because of what he said about the telephone call to emergency services.
[76] His offer to plead guilty before trial to the offence of manslaughter supports his expressions of remorse. It is to be noted that his counsel never invited the jury to find him not guilty.
[77] I find these matters persuasive in assessment of the offender's prospects of rehabilitation. I accept that he is genuinely sorry for what he has done and I think, notwithstanding his troubled past, that there are good prospects that he will genuinely try to live a responsible life when released from prison. I think that during the custodial part of his sentence he will work towards that end."
23 The relevant principles in dealing with contempt of court were considered in Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527. In that case attention was directed to ten considerations which had earlier been identified in the matter of Wood v Staunton (No. 5) (1995) 86 A Crim R 183. I propose to deal with those considerations in the context of this case.