Supreme Court New South Wales Medium Neutral Citation: In the matter of KL [2024] NSWSC 1334 Hearing dates: 19 September 2024, 11 October 2024, 23 October 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 8 July 2024. (2) Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 19 August 2024. (3) For the contempt in the face of the Court on 8 July 2024, I order that KL be committed and detained as a juvenile offender for a period of 6 months commencing 23 October 2024 and expiring on 22 April 2025. (4) For the contempt in the face of the Court on 19 August 2024, I order that KL be committed and detained as a juvenile offender for a period of 9 months commencing 23 October 2024 and expiring on 22 July 2025. (5) Both of those orders are wholly suspended on the condition that KL be of good behaviour including that he does not commit contempt in the face of the Court by refusing to answer questions if he is called as a witness in the trial of YA. (6) If KL refuses to answer questions in the trial of YA, he will be invited to show cause why the order suspending the periods of detention ought not to be immediately revoked. Catchwords: CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether "criminal" or "civil" proceedings – Children (Criminal Proceedings) Act held not to apply CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 25, 33(1)(b) Children, Youth and Families Act 2005 (Vic) Children's Court Act 1987 (NSW), s 21 Evidence Act 1995 (NSW), s 128 Major Crime (Investigative Powers) Act 2004 (Vic) Supreme Court Rules 1970 (NSW), Pt 55, r 13 Cases Cited: Allen v R (2013) 36 VR 565; [2013] VSCA 44 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Carr v R [2024] NSWCCA 103 Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 In the matter of Daniel James Ezold [2002] NSWSC 574 In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Morris v Crown Office [1970] 2 QB 114 NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 Principal Registrar of Supreme Court of New South Wales v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 Prothonotary of the Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 Prothonotary of the Supreme Court of New South Wales v London [2023] NSWSC 1252 Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym) [2023] NSWSC 1077 Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495 R v Abdallah: In the matter of John Leger [2014] NSWSC 320 R v Abdallah: In the matter of Matthew Lewis [2014] NSWSC 319 R v Bilal Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 R v Diallo & Ors (No 16) [2024] NSWSC 1221 R v Diallo & Ors (No 7) [2024] NSWSC 978 R v Duncan [2000] NSWSC 440 R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 R v Hopkins (a pseudonym) [2018] VSC 756; (2018) 276 A Crim R 11 R v WE (No. 15) [2020] NSWSC 332 Registrar, Court of Appeal v Ritter and Another (1985) 34 NSWLR 638; (1985) 74 A Crim R 551 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Texts Cited: Justice Natalie Adams and Belinda Baker, 'Sentencing for Contempt of Court' (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020) David Kell SC and David Norris, 'Developments in penalties for contempt by refusal to give evidence' (Judicial Quarterly Review, August 2024) Category: Sentence Parties: Supreme Court of NSW (Plaintiff) KL (Defendant) Representation: Counsel: M Fernando (Defendant) Solicitors: AA Criminal Lawyers (Defendant) File Number(s): 2024/00366333 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is a suppression order over the identity, or any information tending to reveal the identity, of the young person. For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order is continued until further order. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order applies throughout the Commonwealth of Australia. JUDGMENT 1. On 8 July 2024 and again on 19 August 2024 KL committed contempt in the face of this Court by refusing to answer several questions, even after he was directed to do so. KL was (and remains) a potentially important witness to the murder (or unlawful killing) of Oliver Coleman who was stabbed to death near his home in Blacktown on 1 September 2021. A trial of four of the men charged with the murder (and two related stabbings) has concluded but a fifth accused is to stand trial separately in November 2024. 2. On 11 October 2024 KL was formally charged in court with those two acts of contempt and he said that he was guilty. He was then, and has been since at least 8 July 2024, represented by Ms Fernando of the Public Defenders' Chambers and Mr Willcox of AA Criminal Lawyers. Ms Fernando provided written and oral submissions on penalty. A Crown Prosecutor, and one of the DPP solicitors who instructs in the substantive proceedings, was present and available to assist but played no role in the contempt proceedings which were dealt with summarily. KL now stands to be punished for his contempt. The facts relevant to penalty 1. Three earlier judgments set out the circumstances in which KL committed contempt and the procedural history leading to today's resolution. In R v Diallo & Ors (No 7) [2024] NSWSC 978 I dealt with the question of whether KL's legal privilege had been waived over reports prepared in separate criminal proceedings in which KL himself is charged with murder. In R v Diallo & Ors (No 10); Re referral of witness KL for contempt [2024] NSWSC 1085 I indicated an intention to refer KL's contempt to the Prothonotary to commence proceedings for contempt. That judgment set out the relevant parts of the transcript of KL's evidence on 8 July 2024 and 19 August 2024. KL was given the opportunity to be heard against such a referral. R v Diallo & Ors (No 16) [2024] NSWSC 1221 was published after I heard submissions from Ms Fernando. Ms Fernando persuaded me to deal with the contempt summarily rather than by referral to the Prothonotary. Despite her well-crafted and persuasive submissions, I was unable to accept that the contempt should not be prosecuted at all. I will refer to these judgments as Diallo & Ors (No 7), Diallo & Ors (No 10) and Diallo & Ors (No 16), assume some familiarity with their content, and attempt not to repeat too tediously the factual detail and the principles discussed earlier. 2. KL was 13 years old at the time of Oliver Coleman's death on 1 September 2021. He would turn 14 a few weeks later. The pair were friends and were in some kind of street gang together. KL was present on the night Oliver Coleman was killed. He declined to co-operate when the police investigated the matter. 3. Months later, KL stabbed another man at the Sydney Royal Easter Show and was charged with murder. He pleaded guilty to that murder in the Children's Court but has since sought to traverse that plea and rely on a partial defence of substantial impairment which would, if accepted, reduce his crime to manslaughter. Reports prepared in that regard suggested KL suffered a trauma related psychological injury resulting from "witnessing the death of Oliver Coleman". That is the way it was put in Mr Willcox's affidavit which was read in the course of arguments made under s 128 of the Evidence Act 1995 (NSW) when it was submitted that KL should not be compelled to answer questions about the events leading to Oliver Coleman's death. The disclosure in Mr Willcox's affidavit led the Prosecutor in the trial to call for the reports and argue that the disclosure was not consistent with KL maintaining privilege over the reports. There is more detail in Diallo & Ors (No 7). 4. Because of the limited nature of the disclosure, and the careful way in which it was framed, precisely what KL saw of the stabbing is not known. However, based on other evidence in the case, I would infer that KL witnessed a lot of the relevant events leading up to the stabbing. His evidence is likely to have been important to both parties to the murder case. There was circumstantial evidence that Oliver Coleman was armed with a large "zombie" knife when he was stabbed. The accused were running a case of self-defence and KL may have given probative evidence supporting or undermining that defence. His evidence was also capable of supporting aspects of the prosecution case on the murder charge. It is reasonable to infer that KL also witnessed further events that unfolded after Oliver Coleman was stabbed and that he was present, or nearby, at the time a number of other people were stabbed, including EC and EO, in relation to whom the five accused were charged with attempted murder. 5. KL made a conscious and sustained choice to refuse to answer questions. He did this selectively during a pre-trial hearing which was designed to elicit the evidence he was capable of giving at trial. The more significant parts of the transcript are set out in Diallo & Ors (No 10) at [12]. He repeated the contempt, conducting himself in an equally selective and calculated way, when called to give evidence before the jury on 19 August 2024. By that stage, he was well and truly aware that his conduct may be subject to charges of contempt, and the solemnity of the occasion – there being 14 jurors present – was greater. 6. It should be observed that KL conducted himself in the courtroom with courtesy and deference. He often prefaced his refusal or "preference" not to answer with words like "respectfully". He did not behave aggressively or attempt to disrupt the proceedings which are features of many cases of a similar kind. 7. It should also be noted that KL did not refuse to take the oath and did answer some of the questions directed to him. For example, he agreed he was present at Oliver Coleman's house on the night of the murder and that he was a member of the RFA ("Ready For Anything") gang and that Oliver Coleman was a member of the QSB ("Queen Street Boys") gang. He gave evidence that another group came to the house on the night of 1 September 2021 and that they were armed with knives and wearing dark clothing. He said he could not see their faces. However, KL refused to name the person with whom he arrived or to identify any of the other young men who were present on his side of the dispute, even when those people were named specifically. The series of questions about the actual stabbing of his friend was met with a repeated mantra of "no comment": See Diallo & Ors (No 10) at [13]. 8. KL was directed clearly and specifically to answer the questions after his initial refusal on at least four occasions on 8 July 2024 and at least seven times on 19 August 2024: Diallo & Ors (No 10) at [12]-[13]. When asked by the Prosecutor whether he was "prepared to tell us anything … of what happened around that house on 1 September 2021" KL replied "no": Diallo & Ors (No 10) at [13]. 9. Both allegations of contempt are serious. I consider the contempt on 19 August 2024 to be significantly more serious due to the presence of the jury, the conspicuous solemnity of the occasion and the fact that, by that time, KL had about a month to consider his position after his conduct during the Basha inquiry on 8 July 2024. 10. In deciding on the penalty to be imposed for the contempt, I also take into account KL's age, the fact that he was very young at the time of the incident and had not attained adulthood at the time of the contempt. 11. I do not know much more about him but accept Ms Fernando's submission that the fact that he was in a gang at the age of 13 suggests a dysfunctional childhood. As I said in argument, I do not accept that the suburb in which he grew up does anything to inform that conclusion. 12. KL has been dealt with in the Children's Court on five occasions for offences of violence. Four of those were committed in 2021 when he was 13 years of age. He was placed on bonds under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) for those offences. On 23 August 2024 he was sentenced to a six-week control order for an offence of affray. That order expired on 3 October 2024 but KL remains in (juvenile) custody because bail remains refused in relation to the pending murder charge. 13. I accept that KL was traumatised by the events of 1 September 2021 and what he witnessed on that occasion. The evidence in support of that finding comes from the affidavit of Mr Willcox which recounts the expert opinions of the authors of reports to be relied on in KL's criminal proceedings. Does the Children (Criminal Proceedings) Act 1987 (NSW) apply to proceedings for contempt? 1. A significant question that arose in the present case concerned whether the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) apply when a court is dealing with the punishment of a child for contempt. 2. Ms Fernando's and the Court's research suggest that it is very rare for a child or juvenile offender to be charged with contempt. Ms Fernando was able to find one authority in New South Wales where a child was punished for contempt and that was from 1985: Registrar, Court of Appeal v Ritter and Another (1985) 34 NSWLR 638 at 641; (1985) 74 A Crim R 551. Bellew J referred a young person for contempt during a terrorism trial in 2020: R v WE (No. 15) [2020] NSWSC 332. However, inquiries with the Prothonotary disclosed that the proceedings were discontinued for reasons of no present relevance. There is a Victorian case of R v Hopkins (a pseudonym) [2018] VSC 756; (2018) 276 A Crim R 11 where a child was punished for contempt after refusing to answer the questions of an Examiner appointed under the Major Crime (Investigative Powers) Act 2004 (Vic). In that case, it was "common ground" that the provisions of the Children, Youth and Families Act 2005 (Vic) did not apply to the contempt proceedings. The legislation in question was different and the decision is not binding but it is a somewhat persuasive authority. 3. In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 ("Dowling"), Basten JA considered whether the provisions of the Crimes (Sentencing Proceedings) Act 1995 (NSW) ("CSP Act)" applied to proceedings for contempt. After a careful analysis, his Honour decided that they do not. The reasons are set out at [33]-[58]. Meagher JA at [139] agreed with Basten JA while Macfarlan JA did not address the question in terms. 4. At the risk of oversimplification, Basten JA relied on the decision of the English Court of Appeal in Morris v Crown Office [1970] 2 QB 114 to conclude that proceedings for contempt – even a criminal contempt such as the present – are by their nature "civil proceedings" and not "criminal proceedings". Having set out the critical passages from Lord Denning MR and Lord Salmon LJ at [43]-[44], Basten JA concluded at [45]: "In short, in the very case which has conventionally been treated as a criminal offence, namely contempt in the face of the court, the [English] Court of Appeal rejected the possibility that criminal law statutes relating to procedure and sentencing should apply. A similar issue to that addressed in Morris would arise with respect to the operation of the Children (Criminal Proceedings) Act 1987 (NSW), involving persons under 18 years of age (or under 21 years of age when charged)." 1. Until the decision of Dowling, many decisions proceeded on the basis or assumption that the CSP Act and its predecessor applied to proceedings for criminal contempt: Justice Natalie Adams and Belinda Baker [1] , 'Sentencing for Contempt of Court' (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020) at [118]-[120]. The learned authors provide a helpful summary of the authorities before and after Dowling. Another helpful article is David Kell SC and David Norris, 'Developments in penalties for contempt by refusal to give evidence', (Judicial Quarterly Review, August 2024) at p 1. Kell & Norris refer to the change in approach effected by the decision in Dowling, noting (at p 6) that "from 1993 until the Court of Appeal's 2018 decision in [Dowling], NSW courts generally proceeded on the basis that the State's sentencing legislation applied to criminal contempts" and that "since Dowling, the principle that sentencing legislation does not apply to the imposition of penalties for contempt has been consistently followed in NSW". 2. While Basten JA's reference to the Children (Criminal Proceedings) Act was an obiter observation, it is a persuasive remark in considering the issue that now confronts me. I would make just a few observations as to the text of the statute and associated legislation. 3. First, s 4 ("application") refers to "any court that exercises criminal jurisdiction" and "any criminal proceedings before any such court" and applies "notwithstanding any law or practice to the contrary". Those words are of very wide import. However, the basis of the decision in Dowling is that a court exercising jurisdiction to punish for contempt is not exercising criminal jurisdiction. 4. Second, s 25 relates to background reports. Obtaining such a report is mandatory before a child can be sentenced to a term of imprisonment for any offence "(other than contempt of court)". The reference to contempt in that section – to exclude it from the requirement to obtain a report – may, at first blush, suggest the Act does otherwise apply to proceedings for a criminal contempt. 5. Third, and contrary to the preceding observation, s 21 of the Children's Court Act 1987 (NSW) creates a specific provision for contempt of the Children's Court with a maximum penalty of a small fine or "imprisonment for 14 days". Such an offence is to "be dealt with summarily before the Children's Court". The two statutes were enacted at the same time and a fair reading is that the carve out in s 25, obviating the need for a background report, relates specifically to the situation where the Children's Court is exercising its power to punish for contempt of that court. 6. If that proposition is correct, the exclusion of contempt from s 25 is unlikely to have any broader implication to the applicability of the Children (Criminal Proceedings) Act when a superior court is exercising its jurisdiction to punish a child or young person for contempt. Conclusion 1. I am satisfied that the approach taken by Basten JA in Dowling applies to the Children (Criminal Proceedings) Act. In other words, the provisions of that Act do not apply to the present proceedings. That approach accords with the position taken in Victoria. Principles, purposes of punishment and penalty options 1. Many of the protections afforded to children in the Children (Criminal Proceedings) Act exist under the common law. For example, in punishing children, priority must be given to rehabilitation and less weight afforded to general deterrence and retribution: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]. It must also be remembered that children's brains develop over time and their capacity for rational decision making is underdeveloped and they are more prone to lapses in impulse control: see for example, BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5]. Dhanji J undertook a helpful survey of some of the authorities in Carr v R [2024] NSWCCA 103 at [40]-[47]. The purposes of punishment 1. In the circumstances of this case, given the contemnor's age and the trauma he has suffered as a result of the events surrounding his friend's death, I attach little to no weight to concepts of retribution and denunciation. The latter has some role to play in deciding on the appropriate punishment, but KL's youth reduces its importance to a substantial degree. 2. However, general deterrence remains of some, although limited, significance despite KL's age. Members of the community must know that the Court will treat contumelious conduct such as the present seriously and that meaningful punishment will result from a witness's refusal to answer questions in cases involving such serious consequences for the parties involved in the substantive proceedings. Further, KL's conduct was calculated and selective and his immaturity appeared to play little role in his decision making. There was nothing spontaneous about his behaviour. I am prepared to accept that his immaturity contributed to his decision to protect his friends. It was this decision which seemed to be behind his selective answering of questions. That decision smacked of immaturity given that most of those friends were clearly established to be – or admitted to being – present at the relevant time and involved in the fracas. 3. In this case, personal deterrence – or something like it – has a significant role to play. It is anticipated that KL will be called in the forthcoming trial of YA, whose trial is listed to commence in early November, that is, in less than a month. The imminence of YA's trial was one of the key factors that led me to decide to deal with KL's contempt summarily: Diallo & Ors (No 16) at [13]-[17]. In short, the penalty imposed today must provide KL with incentive and encouragement to give forthright evidence in those proceedings. Relatedly, contempt proceedings are largely concerned with the protection of the community by safeguarding the integrity of the system of justice. That is why one of the penalty options, and one rarely employed, allows for the continuing detention of a contemnor to encourage them to "purge" their contempt. Available penalties 1. The kinds of sanctions and penalties provided for in the Children (Criminal Proceedings) Act are not available for the reasons explained earlier. However, the inherent powers of this Court are of such breadth that orders can be fashioned which have the same practical result. For example, it is open to this Court to order that any term of detention be served in a juvenile institution rather than in an adult gaol. It is also open to impose a bond or recognisance at common law and to place conditions upon such a bond. 2. The kinds of penalties that may be imposed for contempt at common law and under the rules of court have been discussed on many occasions and I will not repeat them here: see, for example, the articles of Adams & Baker and Kell & Norris, each of which was referred to earlier; see also the helpful analysis of sentencing options undertaken by Yehia J in Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275. 3. KL had the opportunity to purge his contempt in the joint trial, particularly when he was called to give evidence before the jury. By that time, he had been warned of the possibility of a contempt charge and had, no doubt, received further legal advice. KL steadfastly declined the opportunity to purge his contempt. However, he will once again be afforded the opportunity to provide honest and unfiltered evidence in the trial of YA. The punishment I propose is calculated to encourage KL to take that opportunity. 4. Part 55, rule 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. (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. 1. The power provided in Pt 55, r 13(1) must as a logical extension encompass committing an offender, who is under 18, to a juvenile justice institution. The power of suspension provides a broad scope to impose a suspended punishment on "terms". This includes requiring a contemnor to be of good behaviour which would, in turn, require them not again to commit a contempt of court. Consideration of other cases of a similar kind 1. Each case is different and the penalty must reflect the individual circumstances of the contemnor and the seriousness of the conduct. Even so, I have considered various statements of principle and the outcomes in other cases. The present case is distinguishable from most in that the contemnor is a juvenile. 2. In Wood v Staunton (No 5) (1996) 86 A Crim R 183, Dunford J identified a number of matters relevant to determining the appropriate penalty for contempt. These considerations were cited with approval by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155, and have been applied in various New South Wales decisions. [2] It is a useful guide to the kind of factors that are relevant. I will set out the matters identified by Dunford J and indicate its relevance very briefly in italics: 1. The seriousness of the contempt proved. 2. This was a sustained and selective refusal to answer questions. It took place in a murder trial and KL's evidence was capable of being important both to the prosecution and to each of the accused men. It is an objectively serious example of an offence of its kind. 3. Whether the contemnor was aware of the consequences to himself or herself of what he or she did. 4. KL had ample opportunity to take advice from extremely capable counsel, was warned more than once of the possibility of being charged with contempt and acted as he did with full knowledge of the possible consequences. 5. The actual consequences of the contempt on the relevant trial or inquiry. 6. I am unable to come to any positive finding as to the impact KL's refusal to answer questions had on the trial but the potential impact was significant. 7. Whether the contempt was committed in the context of serious crime. 8. It was. 9. The reason for the contempt. 10. The reasons KL behaved as he did is not clear. Because of the selective answering of questions, his conduct seemed to be designed to protect members of his own "gang" and was likely part of the underworld policy of not cooperating with authority. He may also have been motivated not to prejudice his partial defence in his pending murder trial. He may have been fearful of reprisal or simply complying with some misconceived gang related desire to remain "staunch". I am unable to come to any finding as to his motivation. 11. Whether the contemnor has received any benefit by indicating an intention to give evidence. 12. KL did not provide a statement or make any undertaking to give evidence in the trial. He received no benefit or promise of a benefit for doing so. 13. Whether there has been any apology or public expression of contrition. 14. Apart from admitting the contempt, there has been no apology or expression of contrition. 15. The character and antecedents of the contemnor. 16. I know little about KL except that he is a traumatised teenager. His membership of a gang, reflected in previous offences of violence, are what led him to be present and a relevant witness. I do not consider his prior offending to be of much significance to a determination of the appropriate penalty. He was just 13 or 14 years old when most of his earlier offences were committed. 17. General and personal deterrence. 18. As I have said, I will give some weight to general deterrence and significant weight to personal deterrence in the hope that KL will provide evidence in the separate trial of YA. 19. The need for denunciation of the contempt. 20. I accept that, because of KL's youth, this is not a case where denunciation is a potent matter in considering the appropriate penalty. 1. In determining the appropriate penalty for charges of contempt, Buddin J said in Principal Registrar of Supreme Court of NSW v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 ("Tran") at [37] that "it would only be in an exceptional case that a custodial sentence would not be imposed for an offence of this kind". 2. However, more recently in Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 Yehia J indicated at [34]: " … 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'." 1. In Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 ("Rollinson") Payne JA at [69] emphasised "that sentencing a contemnor to a term of imprisonment is a penalty of last resort". Kell & Norris in their article earlier referred to suggest that this decision may represent "a trend" that indicates a shift away from the approach taken by Buddin J in Tran. [3] However, the contempt under consideration in Rollinson did not involve a refusal to answer questions or to take an oath or affirmation when the contemnor was called to give evidence in a criminal trial for a very serious offence. Even so, at common law, depriving a person of their liberty must always be considered a punishment option of last resort: in the context of contempt, see He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [68] (McCallum JA), NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 at [30] (Bell P, as the Chief Justice then was) and Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym) [2023] NSWSC 1077 ("Patrick") at [58] (N Adams J). 2. The practical reality is that KL is in juvenile detention, with bail refused, in relation to a charge of murder. He pleaded guilty to that charge but now seeks to traverse his plea with a view to conducting a partial defence of substantial impairment. His best hope is that he will ultimately be convicted and sentenced for manslaughter rather than murder. For that reason, as in the case of Patrick where the contemnor was serving a sentence, considering non-custodial alternatives is of little utility. However, any term of incarceration could be suspended "on terms", including that he be of good behaviour. Contrary to the thrust of one of Ms Fernando's submissions, KL's custodial status and his extant legal problems does not mean he is not amenable to punishment or deterrence. If he complies with the conditions of any suspension of the punishment, there will be in effect no punishment as he will remain in custody with bail refused throughout the period of the suspension. However, if the order for suspension is revoked, it might be expected that any sentence imposed for the homicide will be structured to take into account that a portion of the period of remand is solely referable to the punishment for contempt. I would not purport to fetter the discretion to be exercised by the sentencing Judge in KL's case and issues of totality may arise. The connexion between the cases may persuade the Judge that partial or total concurrence is appropriate. 3. Ms Fernando provided me with a helpful table (MFI 1) setting out the results of some 10 cases of a not dissimilar kind. I trust she will not mind my reproducing that table here: Case & Result Objective features Subjective features Refused to give evidence in murder trial of de facto husband 31 y/o 1. R v Duncan [2000] NSWSC 440 No apology or adequate explanation No record Fixed term 2 months Facing charges related to murder Stress/depression, carer of daughter and twin sister Importance of denunciation PNG Refused to give any evidence in murder trial of co-acc Convicted & sentenced for murder in separate trial (received 12 year NPP) 2. In the matter of Daniel James Ezold [2002] NSWSC 574 Understood consequences of refusal Age not stated (adult) Fixed term 6 months (3 months concurrent with existing murder sentence) No serious consequences from refusal Minor record (apart from related murder) Reason: fear of retribution Never undertook to give evidence On trial for murder and attempt murder Gave evid at trial claiming duress 29 y/o 3. Principal Registrar of Supreme Court of New South Wales v Thanh Vu Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 During cross examination, refused to answer material questions Supplying drugs, possessing firearms, poor driving record Fixed term 4 months Acquitted principal charges PG Refusal based on fear of retribution On remand for other offences Abdallah trial: murder & att murder of contemnor Age unavailable 4. R v Abdallah: In the matter of John Leger [2014] NSWSC 320 Answered 'don't recall' or silence to all questions during Basha Driving and traffic record Fixed term 6 months Abdallah: convicted murder; acquitted attempt Suffering PTSD from shooting – protective custody Declined to give statement or evidence PG (25%) Abdallah on trial: murder and att murder of Leger 25 y/o R v Abdallah: In the matter of Matthew Lewis [2014] NSWSC 319 Feigned a lack of memory of day due to Xanax Nil record 5. Fixed term 3 months Abdallah: convicted murder; acquitted attempt Suffering anxiety after shooting Contemnor not alleged to have witnessed attempt PG (25%) Declined to give statement or evidence Refused to answer material questions against co-offender in conspiracy to cause GBH w/i & wounding w/i GBH Loss of significant evidence to crown resulting in proceedings being discontinued 19y when involved in substantive offence 6. Prothonotary of the Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 Became fearful of way persons assisting authorities treated in gaol Related offences of conspiracy to cause GBH and procure commission of serious indict offence Good behaviour bond 12 months Feared for safety of family Difficult background, remorse Released to parole PG Had not undertaken to give evidence PG to offence of recklessly firing at dwelling place, agreed to give evidence against co-off and received a benefit on sentence When called at trial of co-off refused to be sworn Age unavailable Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495 Contemnor's evidence vital to Crown case Nil significant record 7. Suspended sentence 12 months Original conviction quashed on appeal and pleaded guilty to being accessory after the fact Remorse – good prospects of rehabilitation Subsequently agreed to give evidence against co-offender who then pleaded guilty PG (20%) Significant objective gravity Feared for personal safety Gave evidence at murder trial of co-offender, co-off convicted but successfully appealed Retrial, evid from 1st trial tendered but refused to answer questions in cross (charge 1) and swore and spoke rudely to counsel (charge 2). Called on another day, refused again (charge 3). Jury hung Contemnor's evidence from 1st and 2nd trial replayed at 3rd trial. Co-offender convicted Age not stated (adult) Prothonotary of the Supreme Court of New South Wales v Patrick (a pseudonym) [2023] NSWSC 1077 Aware of consequences of refusal Lengthy record many not serious, some property offences, violent offences of common assault and damaging property 8. X3 contempt charges Genuine fears for safety Background of disadvantage – mental health issues – multiple suicide attempts – reduction in moral culpability Fixed term 8 months (2 months added to existing sentence for murder) Assaulted while in custody PG (25%) Ultimately fulfilled undertaking to give evidence First and third offence at lower end of seriousness Second offence moderately serious example Prisoner refused to enter the courtroom (thus refusing to give evid) in criminal proceedings against female correctional officer for offences incl sexual relationship with the contemnor) Refusal resulted in three offences being discontinued and fourth offence reduced in severity. Offences at lower end of seriousness 22 y/o 9. Prothonotary of the Supreme Court of New South Wales v London [2023] NSWSC 1252 Serious and reasonable fear for safety in prison Record for violence including breaches of prison discipline Fixed term 6 months Assaulted in custody Serious mental health issues – some evidence of remorse Aware of consequences of refusal PG (25%) Mid-range seriousness Refused to give any evidence at murder trial Had not given a statement Crown used transcript of evidence given to NSW Crime Commission At least middle-aged 10. Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275 Aware of consequences of refusal Prior record, no similar offences: driving, drug-related, affray, dishonesty Fixed term 8 months (suspended upon entering 2 year bond) Refusal did not deprive Crown of evidence or contribute to acquittal Remorse, difficult childhood, substance abuse, mental health issues causally related to offending and reduced moral culpability Fear for safety of self and family PG (25%) No benefit by indicating willingness to assist Lower end of objective seriousness 1. More severe sentences have been imposed in other cases. For example: * In R v Bilal Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 Johnson J imposed a fixed term of imprisonment of 15 months. The contemnor had refused to give evidence at a trial in this Court relating to a number of gang related shootings including three counts of murder. * In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 Wilson J imposed a sentence of 3 years. That was a far worse case in which the contemnor refused to come into the courtroom, threatened court staff and created an atmosphere of fear requiring him at one stage to be wrestled from the courtroom. Despite a somewhat lame apology ("I'm sorry for what I've done miss"), her Honour was not satisfied there was genuine contrition. Wilson J found that the case called for a penalty "conveying the strongest denunciation". * In Allen v R (2013) 36 VR 565; [2013] VSCA 44 the Victorian Court of Appeal refused leave to appeal against a sentence of 8 months imposed on a witness who refused to give evidence in a trial for burglary and aggravated assault. * In R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774, Jamil Qaumi was sentenced to concurrent fixed terms of 4 months for two offences of contempt arising from his refusal to answer questions when called in his own joint trial for murder and a number of other gangland shootings. That was a complex sentencing exercise and there was a further charge of contempt arising from the contemnor and one of his brothers attacking a co-accused in the dock. He was also being sentenced for a multiplicity of other serious offences in relation to which a very long aggregate sentence was imposed. However, the sentences for contempt were ordered to be entirely cumulative upon the aggregate sentence for the criminal offences. Expression of gratitude to KL's lawyers 1. Before announcing KL's punishment, it would be remiss of me not to acknowledge the exceptional assistance provided by both Ms Fernando and Mr Willcox. Each has made themselves available several times and on short notice. They have provided valuable assistance both to KL and to the Court. I thank them both for their efforts in difficult circumstances and trust that KL is aware and appreciates the quality of the legal services he has received. I also thank the solicitors and counsel from the Director of Public Prosecutions who have been available to assist me throughout. The appropriate punishment 1. Taking all of the foregoing matters into account, including that ordering the detention of a contemnor is an option of last resort, I have concluded that the only appropriate course is to impose concurrent periods of incarceration in a juvenile correctional facility. The second contempt will receive a more substantial penalty. That punishment will be wholly suspended for the time being. 2. However, if KL refuses to give evidence in the forthcoming trial of YA, he will be required to show cause why I should not revoke the order suspending the period of incarceration. A condition of the suspension of the term of commitment is that he must be of good behaviour – including that he does not commit a further contempt of the Court. Those orders fit comfortably within the broad powers in Pt 55, r 13. 3. The statutory regime of providing discounts for the plea of guilty does not apply and, in the circumstances, KL's admission of guilt was no more than an acceptance of the inevitable in circumstances where he made a conscious decision to refuse to answer questions in full knowledge of the likely consequences. Orders 1. I make the following orders pursuant to Pt 55, rr 13(1) and 13(3) of the Supreme Court Rules 1970 (NSW): 1. Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 8 July 2024. 2. Declare that KL is guilty of contempt of this Court for refusing to answer questions when directed to do so on 19 August 2024. 3. For the contempt in the face of the Court on 8 July 2024, I order that KL be committed and detained as a juvenile offender for a period of 6 months commencing 23 October 2024 and expiring on 22 April 2025. 4. For the contempt in the face of the Court on 19 August 2024, I order that KL be committed and detained as a juvenile offender for a period of 9 months commencing 23 October 2024 and expiring on 22 July 2025. 5. Both of those orders are wholly suspended on the condition that KL be of good behaviour including that he does not commit contempt in the face of the Court by refusing to answer questions if he is called as a witness in the trial of YA. 6. If KL refuses to answer questions in the trial of YA, he will be invited to show cause why the order suspending the periods of detention ought not to be immediately revoked. ********** Endnotes 1. As her Honour then was. 2. Justice Natalie Adams and Belinda Baker, 'Sentencing for Contempt of Court' (Conference Paper, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020) at [147]. 3. David Kell SC and David Norris, 'Developments in penalties for contempt by refusal to give evidence' (Judicial Quarterly review, August 2024) p 7. 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: 08 November 2024