unreported, 20 August 1991; (1991) NSWJB 76; R v Smith

SENTENCING - contempt - whether Sentencing Act 1989 applies whether necessary to impose fixed term - whether necessary to impose additional term - held: The question of the application of the Sentencing Act 1989 to an offence of contempt should be reserved to a case where it is necessary to determine it but the procedures of the Act should be followed in any event in the instant case. Registrar of the Court of Appeal v Gilby, Court of Appeal, unreported, 20 August 1991; (1991) NSWJB 76 followed.

Criminal Appeal Act 1912 sSDA. Criminal Legislation (Amendment) Act 1992, Sched 3. District Court Act 1973, 6 203. Sentencing Act 1989.

Kirby P I will ask Clarke JA to give the first judgment. CLARKE JA: The claimant seeks a declaration that the opponent is guilty of contempt of court in that on 22 May 1991 being a competent and compellable witness in the trial of George Sarandopoulos in the District Court of New South Wales before his Honour Judge Gallen and a jury of twelve and being duly sworn he refused to answer a relevant question in the course of examination in chief and later in cross examination and did thereby conduct himself in a manner which interfered or tended to interfere with the course of justice in respect of the said trial. The claimant also seeks an order that the opponent be dealt with for those contempts of court.

The facts out of which the claim arise can be shortly stated. On 20 May 1987 the Caringbah branch of the ANZ Bank was robbed by two persons. The offenders were seen by witnesses to get into a red For Laser registered number NOP 932 and later seen to get out of that vehicle and into a blue Ford Sedan number OKI 054. Some time later a revolver identical to that used in the robbery was found in the back seat of the red Ford Laser.

Following enquiries police officers went to 1/12 Fraser Street Kogarah at about 6.30am on 22 May 1987. There they saw the opponent, his brother Julal Raad, George Sarandopolous and Shirley Seng. The police officers also found money in the premises and some equipment thought to have been used in the robbery. The opponent and his brother and George Sarandopolous were taken to the Sutherland Police Station.

At first each of them denied any involvement in the robbery at the ANZ Bank at Caringbah. Not long after this denial, one George Sarandopoulos changed his mind and confessed saying that he had committed the offence with the opponent. Shortly afterwards the opponent confirmed this and said that the second car, that is the blue Ford, had been driven by Sam El Mohamad. Both Sarandopoulos and the opponent were extensively questioned and the opponent furnished a record of interview confirming both his guilt and that of Sarandopoulos. As a result Julal Raad was released from custody.

The opponent and Sarandopoulos were each charged with three charges as follows: (1) armed robbery; (2) possess an unlicensed pistol; and (3) stealing a motor vehicle. On 11 September 1987 both were committed for trial and El Mohamad, who was charged with another offence, was discharged.

Later, on 28 November 1988, the opponent pleaded guilty to each of the three charges before Judge Herron. The sentencing judge sentenced him to eight years imprisonment on the charge of armed robbery, three years concurrent imprisonment on the charge of possessing an unlicensed pistol and two years concurrent imprisonment on the charge of stealing a motor vehicle. His Honour also fixed a nonparole period of five years and stipulated that both the sentence and the nonparole period were to commence on 22 May 1987.

In expressing his reasons for the orders which he made his Honour referred to the assistance which the opponent had given the police officers. What his Honour said was: "Initially, in answer to questions put to you by the detective you, in fact, denied any connection with this particular robbery but in the record of interview you made a full confession in relation to it and also identified the second person who was referred to in the statements to which I have just referred as being yourself. In addition that that, there is no doubt that you assisted the police or offered to assist them in relation to their obtaining a search warrant and, of course, the situation is that today you have pleaded guilty and all these are matters which I must take into account in determining what an appropriate sentence is."

Later on his Honour repeated the fact that he was taking into account the plea of guilty and the opponent's cooperation with the police.

George Sarandopoulos did not come up for trial until 20 May 1991. On the second day of the trial the opponent was called to give evidence in the accused's case. That is, he was not called by the Crown but was called by Sarandopoulos to further the defence being mounted. During the course of his evidence the opponent denied that Sarandopoulos was the cooffender. He refuted his earlier statements to that effect and adhered to evidence which he first gave in chief, that it was not Sarandopoulos who had been with him when he robbed the bank.

URJ REGISTRAR OF THE COURT OF APPEAL v RAAD (Kirby P) 3

He was asked in chief and in cross examination who the cooffender was but he refused to answer. It is helpful, I think, to set out from the transcript of the trial those pages upon which the alleged attempts occurred. At 127-128 from the examination in chief read:

"Q. I think you, and also of course, the accused, then volunteered to confess to this crime?

A. Got let go. They let him go. He was let off the hook.

Q. I think your brother John was a heroin addict at the time?

Q. Do you know where your brother is now, by the way?

Q. Would you have a look at exhibit G and H, the shoes. (Shown) Do you recognise those shoes?

A. Yes, one belongs to my brother and one to my coaccused.

A. I mean one to the bloke I did the armed robbery with.

DAILLY: Q. In fact, your brother who went into the bank, did the armed robbery with you?

. He was present there when you left to go and do the robber (sic) with --- . They were asleep when we left so I don't know. When we came back, they were home.

Q. If it was not your brother, who was with you in the robbery, who do you say was the man who went to the bank with you?

HIS HONOUR: Q. Why do you refuse the (sic) answer that question?

Q. If you do not answer it, you have got to answer it?

A. Well, I rather whatever you are gonna dish out for not going to answer this question than getting paid for it later on from someone in gaol, know what I mean?

HIS HONOUR: You will be reported for contempt of court.

DAILLY: Q. You have told us Mr Sarandopolous the accused here, had nothing to do with the robbery, is that right?

Q. Did he receive any money from you from this robbery?

"Q. Because at that stage you decided to come clean?

A. No, not clean, all right, but to - all that they were looking for was three men, so I was one of them, all right, Sam Mohamad was one of them but I needed another bloke because if I give up the other bloke I'm going to get knocked over saying his name and it wasn't worth this.

Q. And did you shout out words to the effect, 'The police are coming'?

Q. And do you remember pointing out in a formal interview with Detective Lawson who the other man was?

A. I said George, but that's only because George agreed to say yes so I wouldn't have to give up the other bloke, you know.

HIS HONOUR: Q. I will again direct you to answer that question?

A. You direct me? I already refused that question before.

CROWN PROSECUTOR: Q. How long was the conversation that you had -

Q. Who are you laughing at? A. Just - because I knew you would give me another contempt of court, you know. I just couldn't help laughing, you know.

CROWN PROSECUTOR: Q. Do you remember giving a formal interview with Detective Lawson and another officer present, Detective Maguire? Do you remember that?

Q. They interviewed you at some length, didn't they.

URJ REGISTRAR OF THE COURT OF APPEAL v RAAD (Kirby P) 5

Q. Perhaps you would look at this document (shown) Take it out of the packet there, Mr Raad. that is a statement that was typed, five pages, correct.

Q. At the conclusion of that interview, you read it over?

A. Well, I knew exactly what was in it so I didn't really need to read it over.

A. And it was a totally correct record of interview?

A. Well, I was - like where I implicated George, well, that's wrong, you know.

Q. Did you say that the record of interview had been made of your own free will?

Q. Did you sign each page of the record of interview?

A. Yes. That was part of the deal we made with the officers when we agreed on that.

Q. I put it to you that what you said in your record of interview was the truth?

Q. Did you tell the police that you live at Flat 7/16 Willeroo Road, Lakemba?

Q. Look at 2, question 14. You were asked, "Were you in fact one of the men that committed the armed robbery at the ANZ Bank at Caringbah on 20 May 1987? And you said, 'Yes'?

Q. You were then shown two bank security photographs?

Q. And in fact you identified yourself in one of the photographs which is before the Court.

Q. And then you were asked Question 19 before you, "Can you tell me who the man with the handgun is in the photograph? * And your response was 'George'?

Q. And then you discussed the amount of money that was stolen in the robbery and your answer was that "There was 25 grant (sic) there'?

A. Yeah, I said we all got four thousand each and the rest went on paying debts.

Q. Yes. But the three who received the shares were yourself, George and Sam?

A. That's what I said, but it doesn't mean it's the truth."

It will be seen from that evidence that the opponent was apprised of the fact that he was required to answer the questions and was warned that if he did not answer them he would be dealt with by the court. The opponent's statement that he knew that he was facing a charge of contempt of court makes quite clear his knowledge of what he was doing.

At the end of the trial the jury acquitted the accused, George Sarandopolous. On 23 May 1991 his Honour Judge Gallen who had been the trial judge referred the matter to the Supreme Court pursuant to the provisions of s203 of the District Court Act 1973, as amended.

The case presents as one of a very serious contempt and before the Court today counsel for the opponent conceded that his client was in contempt of court and restricted his submissions to the appropriate order which should be made. Both counsel referred specifically to five factors which were identified as important considerations in the Registrar of the Court of Appeal v Gilby (New South Wales Court of Appeal, 20 August 1991, unreported) and it is convenient initially to have regard to those five factors. The first one is that the contempt before the court was a serious one. In Gilby the court said at 26:

"Tf in a criminal proceeding a person refuses to give evidence when he should he causes harm to other persons in the community. At least they are liable to suffer harm because of what he has done. It is as we have suggested a requirement of the law that in general a person give evidence when properly called upon to do so in order that criminals may be convicted."

It was contended that there was a significant point of distinction in this casein that the opponent was not called to give evidence as part of the Crown case as had been the situation in Gilby. That is, I think, true. In Gilby the person charged with contempt had been called in the Crown case and had declined to answer an important question because of his perceived fear of the consequences of answering that question.

In this case the Crown sought the prove its case without recourse to the opponent. Nonetheless, there is a very serious aspect of this particular case which can conveniently be considered under the second factor to which I will now turn. That factor is that the opponent was well aware of the consequences of what he proposed to do. The passages from the evidence which I have quoted make it patently clear that he was aware that he would be punished if he did not answer the question which had been asked and, furthermore, makes it apparent that he preferred the consequences of not answering the question to the naming of the cooffender.

Reference to a passage in the evidence which he gave in the trial of Sarandopolous highlights the very serious nature of the course on which he embarked and which, in a sense, concluded when he gave evidence in the Sarandopoulos trial and declined to name his cooffender. The passage to which I refer is at 126:

"Q. Can you just tell us, tell the jury, what happened when you were sitting in the dock?

A. Well, I knew that we were gonna get all locked up, you know because on an armed robbery, is very hard to get bail. You know, especially if you got a criminal record. You know, so I - we started you know, I said, we got to let one of them go, you know, so they can help us from outside with a solicitor or something because, you know, because it's very hard to get in gaol. You haven't got anybody outside.

My brother was expecting a baby at that time. You know, his wife was almost due and he started saying to me, "Please, you got to help me get out because my last baby was born, I was in gaol and I said, you know, it's up to George. If he would accept the blame at this time, so I asked him and he said, 'no', he denied it. He said, I don't want, excuse 'me, my brother asked him to take the rap to help him see his baby, you know, and George said 'no', because he had nothing to do

URJ REGISTRAR OF THE COURT OF APPEAL v RAAD (Kirby P) 7

with it, you know, and my brother please you go to - it's because I'm expecting the baby and whatever. You know, and then I said to George, I said, 'Listen, if you don't do it, we all gonna go to gaol anyway. So if you don't do it I'll fix you up when you go to gaol so save us a bit of time and have someone out there to help us', you know, 'and later on I can help you because I know you weren't involved in the armed robbery at all'. You know, and George still didn't want to do it but I said, 'If you don't do it, or otherwise I'd bash you when you go to gaol' and he was scared because I - what I was saying about gaol. So we then - he agreed and then we went and seen the police officers and they said all right, you know, we took the rap for it and they let my brother go. Then we got charged."

It is, as I see it, serious enough that he was involved, on his own account, in inducing, by threats of violence, an innocent person falsely to admit guilt in order to save another person who may or may not have been guilty of the offences. What makes it even worse is the suggestion, that is conveyed by this evidence and his later evidence that George Sarandopolous was not the cooffender, that he was, to adapt his own words, "keeping his bargain to help the man he had induced falsely to admit guilt".

Against this background his refusal to name his actual cooffender presents as calculated and deliberate and as an essential part of a plan to ensure that the guilty man escaped his just deserts.

The third factor to which reference is made in Gilby is that the offences were committed in the context of a serious crime.

There can be no question in this case but the crimes in the context of which this offence was committed were serious crimes. Armed robberies attract very heavy sentences and are, undoubtedly, understood by all concerned to represent crimes amongst the most serious in the community. The sentence imposed for the armed robbery in the particular case of the opponent himself points clearly to the seriousness of the charge to which he pleaded guilty and on which Sarandopolous was tried.

The fourth factor to which reference is made in Gilby is not strictly relevant in this case. In Gilby the person charged with contempt had sought to support his refusal to answer questions by reference to his perception of the serious consequences which might befall him or members of his family if he did furnish the information sought by these questions. In that context the court said it was relevant to recall the lack of substantial complaint to those who might have been of assistance in respect of any suggested threat or duress.

In this case there was the faintest suggestion of duress or fear in the evidence given when the opponent refused to_name the cooffender but there is a hollowness in that suggestion in the circumstance that it was his brother whom he was protecting from arrest and it was the opponent himself who was threatening violence.

What is even more significant is that he has not sought before this Court to explain his conduct as resulting from any fear of consequences. In other words, he has not given evidence before this Court, upon which he could be cross examined, to support any claim that he feared the consequences of naming his cooffender. In my opinion it is wrong even to consider a perception of fear as an issue in mitigation in this case.

The final matter regarded relevant in Gilby was that the person charged with contempt had received a sentence significantly less than otherwise he would have received because of a promise of cooperation. In this case the opponent was dealt with upon the express basis the had had cooperated with the police as I have

earlier pointed out. In the light of his later evidence that cooperation, that is pleading guilty and nominating the cooffender, was far less meritorious than the sentencing judge believed. Indeed, the naming of an innocent person as a cooffender is hardly a matter which should lead to a more lenient sentence. On the contrary, it is, in a sense, a perversion of justice and is inimical to the proper interests of society.

In my opinion, on any view, the opponent committed a calculated contempt which calls for a lengthy term of imprisonment. The opponent's counsel while conceding that he has a long criminal record said that the court should deal with him leniently upon the basis of his unhappy childhood. It may be that, as the evidence suggests, the opponent did not have a happy childhood with supporting parents and that is a matter which can properly be taken into account. However, the opponent has been before the courts many times and it is difficult in those circumstances to place great weight on the fact that he did not have the easiest life while growing up.

In my opinion, having regard to the whole of the evidence and the deliberate nature of the opponent's contempt, he should be sentenced to a term of twelve months imprisonment which should commence when he is due to be released at the end of his present term of imprisonment. What I have just said raises a difficulty upon which the parties should be permitted to address the court. The opponent was sentenced to a term of eight years imprisonment on the charge of armed robbery with, as I earlier pointed out, the sentence to commence on 22 May 1987. The sentence was imposed before the commencement of the Sentencing Act and in the event he was released on 10 August 1990 on parole. That is he served slightly in excess of three years of that term of imprisonment. He was taken back into custody on 28 January 1991 and in March 1992 faced the court on three counts of armed robbery, a single count of possess a shortened firearm and another count of possessing a prohibited weapon. On each of the armed robbery counts he was sentenced to a minimum term of five years to date from 31 March 1992 with an additional term of eighteen months.

Tf he is released at the expiry of the minimum term he will leave prison on 30 March 1997. If, however, he is required to serve the additional term he will not leave prison until 30 September 1998. Accordingly, the date on which he completes his present term of imprisonment depends upon a number of contingencies and the degree of uncertainty raises considerations upon which the Court wishes to hear the parties. KIRBY P: I agree with the orders proposed by Clarke JA. As his Honour has said the contemnor has not had an easy life.

It was because of the seriousness of his offences that I stated in his presence, so that his counsel could respond and so that he could hear, what I was thinking about his contempt. Despite the plea of guilty the contemnor gave no evidence before this Court. He relied instead only on a psychologist's report and on the eloquence of his counsel. He did not attempt to offer, by way of oral evidence, any justification or explanation of his conduct before Gallen DCJ.

As was properly conceded for the contemnor that this was a serious case of contempt. The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or

URJ REGISTRAR OF THE COURT OF APPEAL v RAAD (Kirby P) 9

affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed.

The failure of the opponent to answer questions in this case was therefore an extremely serious contempt. In the view of Parliament and of the community, armed robbery is a very serious offence. It was during a trial of an accused charged with that offence that the contemnor refused to answer questions. His refusal to answer the questions which were asked made a mockery of the signed statement which he had earlier given to the police.

The contemnor was clearly aware of the consequences of what he was doing. I concede that it would have been desirable for Gallen DCJ to have spelt the consequences out in greater detail than he did. So much was done by Shadbolt DCJ in Gilby and by Badgery Parker J in Regina v Smith (1991) 56 A Crim R 148. However, Gallen DCJ specifically referred to the risk of contempt in the course upon which the contemnor was embarked. The contemnor fully realised that he faced such a risk being twice warned about it. He said, "Well, I'd rather whatever you are gonna dish out, Your Honour, I'd rather what you're gonna dish out than what I'm gonna get. "

It was suggested that the explanation for this position adopted by the contemnor was the prison culture which exerts a pressure on a person, in the position of the contemnor, to maintain silence. The rule of law cannot bend to that pressure. The courts must not succumb to it.

The contemnor was not, as Mr Smith was, in Regina v Smith (above) contingently liable to be exposed to further punishment himself. The contemnor had already been convicted and sentenced. In this sense his case is a more serious one than Smith. In that case, the majority of this Court confirmed a fine of $60,000 imposed by Badgery Parker. I was of the view that a custodial sentence was required. I proposed a term of imprisonment of one year concurrently with the life sentence being served by Mr Smith.

All members of the court regarded the case as a serious instance of contempt of court.

No evidence of overt duress on the contemnor was proved in this case, nor even suggested. However, it is appropriate, I think, to take into account the suggestion of the risks of retaliation which the contemnor may have faced from any person whom he identified. In prison, as he is at the moment, he would be vulnerable to such retaliation. However, such a risk, whilst mitigating the apparent wilfulness of his refusal to answer questions, cannot excuse him from the obligation to give evidence or to answer questions as required by law. The law must be upheld. He recognised, by his comments to Gallen DCJ, that the punishment of law would be 'dished out' to him. There were many ways short of a refusal to answer questions by which a contemnor could have been protected if fear was indeed the reason for his conduct.

There is then the fact that the contemnor implied by his earlier statement to police concerning Mr Sarandopoulos that there would be evidence available to the prosecution to implicate Mr Sarandopoulos in the offence. Clearly, before the trial, it must have been made known to the prosecution, as I would be prepared to infer, that the contemnor was no longer available to give evidence on its behalf. Indeed, as has been pointed out, the contemnor actually proceeded to give evidence in the case for Mr Sarandopoulos.

Equally clearly, Herron DCJ when he sentenced the contemnor would have had in mind the fact that the contemnor had cooperated with the police. Such cooperation is always available to support arguments for a reduction of a

sentence following conviction. I would entertain no doubt that Herron DCJ, conformatively with principle, would have taken such cooperation and the prospects of further cooperation,into account. Specifically, he would have taken such cooperation into account when determining the sentence to be imposed. Yet the result of the conduct of the contemnor is that the second person who entered the bank with him, in an armed holdup, has escaped from his crime scot free.

By the Criminal Legislation (Amendment) Act 1992, sSDA has been inserted in the Criminal Appeal Act 1912. Under that section the Crown may appeal against a sentence imposed on a person which was reduced because the person undertook to assist law enforcement authorities, if that person fails to fulfil the undertaking. The Court is empowered to vary a sentence on that basis. The section was not in force when the contemnor was sentenced. In any case, it was arguable that he did not give an undertaking. His primary sentence is not under review in these proceedings for contempt. However, the new legislation indicates the opinion of Parliament concerning the withdrawal from a commitment relevant to the basis of a sentence. Self evidently, that is a serious step.

The contemnor declined to identify his cooffender. That itself is a very serious matter. If this second offender was George Sarandopoulos, the contemnor effectively secured his release by declining to answer questions during Mr Sarandopoulos' trial. If the second offender was another person, the contemnor's earlier statement misled the authorities into believing that it was Mr Sarandopoulos. More relevantly to the present charge, by the contemnor's refusals to answer questions it has proved impossible to bring the cooffender, whoever he was, to justice.

Of course, the contemnor is not charged with public mischief, conspiracy to pervert the course of justice or any other like criminal offence. He must be dealt with only on the charge of contempt to which he has pleaded guilty. I approach the matter on that footing. Approached on that footing the offence is an extremely serious one. It is therefore necessary to impose the sentence which Clarke JA he proposed.

T agree with his Honour's proposed orders. I would also invite the submissions of counsel on the consequences, having regard to the sentence which the contemnor is already serving.

Mahoney JA I agree with the judgments that have been given. I do not desire toadd anything further to them. (Counsel addressed on the orders)

Kirby P The Court has heard submissions concerning the way in which orders should be formulated to give effect to the orders of the Court which are those which Clarke JA has proposed and which the Court has adopted.

In Gilby, the court reserved for future decision the question of whether the Sentencing Act 1989 governs imprisonment for an offence of contempt. The Court has heard submissions on the effect of that Act and its operation in this case, it if applies to cases of contempt. It is no more appropriate in this case than it was in Gilby to determine that question. It does not need to be determined here. If, however, the Sentencing Act does apply, the words stated by the Court at 30 of its decision in Gilby apply equally to this case. It is thus appropriate to proceed as the Court did in that case.

It is appropriate to impose a fixed term. It is not appropriate to impose an additional term because the purposes for which an additional term of imprisonment would be imposed, in a case such as this, are not present in the circumstances of the present offence.

URJ REGISTRAR OF THE COURT OF APPEAL v RAAD (Kirby P) 11

The orders which the Court thereforee makes are, for the reasons which the Court has already stated:

1. The opponent is convicted of the charges of contempt to which he pleaded guilty;

(2) The Court imposes on the opponent a sentence of a fixed term of 12 months imprisonment;

(3) The Court directs that such imprisonment is to be cumulative upon the term of imprisonment which the opponent is presently serving. It is to commence on 31 March 1997 and it is to expire 30 March 1998; and

(4) The Court directs that its judgment and reasons be placed on the prison file of the opponent so that they may be drawn to the attention of the prison and parole authorities to be considered by them at any time in the future when the release of the opponent to parole is to be determined.

Counsel for the Claimant: PI Lakatos Instructed by: HK Roberts, State Crown Solicitor Counsel for the Opponent: C Scouler

Instructed by: RF McIlwaine, Legal Aid Commission of New South Wales