New South Wales Supreme Court CITATION : Prothonotary of Supreme Court of NSW v Katelaris (No 2) [2008] NSWSC 702 HEARING DATE(S) : 04/06/2008 JUDGMENT DATE : 18 July 2008 JUDGMENT OF : Hoeben J DECISION : Declarations in accordance with paragraphs (1) and (2) of the summons. Concurrent sentences of imprisonment for 6 and 12 months wholly suspended on condition that the defendant enter into good behaviour bonds. CATCHWORDS : Sentence - contempt of court - application of normal sentencing principles. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Consequential orders Commissioner for Fair Trading v Partridge [2006] NSWSC 478 at [22] Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 (2001) 53 NSWLR 527 Principal Registrar, Supreme Court of NSW v Katelaris [2001] NSWSC 724 CASES CITED : Prothonotary of NSW v Katelaris [2008] NSWSC 389 R v Razzak (2006) 166 A Crim R 132 R v Zamagias [2002] NSW CCA 17 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 PARTIES : Prothonotary of the Supreme Court of New South Wales - Plaintiff Andrew John Katelaris - Defendant FILE NUMBER(S) : SC 14191/2007 COUNSEL : Mr L Babb SC - Plaintiff Andrew John Katelaris - Defendant SOLICITORS : IV Knight, Crown Solicitor - Plaintiff Defendant in person IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Friday, 18 July 2008 14191/2007 – PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v Andrew John KATELARIS (No 2) JUDGMENT 1 HIS HONOUR: Nature of Proceedings The defendant, Andrew John Katerlaris, was found guilty of two offences of contempt on 5 May 2008 ( Prothonotary of NSW v Katelaris [2008] NSWSC 389). It is now necessary to consider the penalty which it is appropriate for the Court to impose. 2 Submissions as to sentence were made on 4 June 2008. The plaintiff relied substantially upon written submissions. The defendant, as was the case when the liability issue was heard, was not legally represented. In his oral submissions the defendant said little about sentence and concentrated upon what he perceived to be the injustice of his conviction in the District Court on a charge of cultivating a lage commercial quantity of prohibited plants, namely cannabis, on 8 March 2006. Despite being repeatedly asked to address the question of what was an appropriate sentence, he declined to do so. 3 Fortunately for the defendant his relatives were more focused in their approach to the matter and helpful written submissions on sentence were received from his mother, his wife and his siblings. 4 A brief report from Ms Perey from the Chatswood Probation and Parole Office was before the Court. That report indicated that the defendant had declined to provide further information to the Service to enable an updated report to be obtained. The defendant had made it clear to Ms Perey that he would not comply with a Community Service Order or with a Periodic Detention Order. She concluded that he was no longer suitable for any community based sentencing options. Annexed to that short report was a copy of the Probation and Parole Pre Sentence Report dated 28 April 2006 prepared for the District Court proceedings. Consideration 5 The factual background to these offences is set out in the judgment on liability and these remarks on sentence should be read with that judgment. 6 The principles applicable to sentencing for contempt are stated in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 where Kirby P said: "A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way." 7 In Commissioner for Fair Trading v Partridge [2006] NSWSC 478 at [22] Bell J enumerated considerations which were of particular relevance in contempt proceedings. In doing so her Honour applied Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 and Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969 (2001) 53 NSWLR 527. The considerations identified by her Honour were: "(i) The seriousness of the contempt proved; (ii) Whether the contemnor was aware of the consequences to himself of what he did; (iii) The reason for the contempt; (iv) Whether there has been any apology or a public expression of contrition; (v) General and personal deterrence; (vi) Denunciation of the contempt; (vii) The character and antecedents of the contemnor" 8 Her Honour noted that those considerations were to be applied in the context of the provisions of s3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (the Act). The latter provision obliged the court to take into account both the aggravating factors in subs (2) and the mitigating factors in subs (3) that were relevant and known to the court. It was also necessary for the court to have regard to any other objective or subjective factor that affected the relative seriousness of the offence. 9 In determining what punishment is appropriate for these offences, it is useful to apply those considerations to the facts of this case. (i) The seriousness of the contempt proved 10 As indicated in the judgment on liability, any conduct involving abuse directed to jurors is serious. These offences fall within the class of a "wilful contempt" as defined in Maniam in that the defendant intentionally made the remarks which constituted the contempt. 11 On the other hand, it is clear that the defendant acted without premeditation and did not intentionally seek to interfere with the administration of justice by deterring the jurors or jurors generally from participation in trials. 12 I accept that while this category of contempt is serious, the present offences should be characterised as being at the lower level of seriousness for this category. (ii) Whether the contemnor was aware of the consequences to himself of what he did 13 It is clear from the defendant's explanation at the hearing on liability that he did not give any thought to what he said. In relation to the remarks in court, he said that the words were out of his mouth before he realised it. I accept that the defendant was not aware of the consequences to himself of making the remarks which he did. (iii) The reason for the contempt 14 As indicated in the judgment on liability [38] – [39] the remarks made in the presence of the jury constituted a form of abuse directed at the jury by way of reprisal for their verdict. The remarks addressed to the journalists were made with the intention that they be promulgated as widely as possible. The defendant gains no assistance from this consideration. (iv) Whether there has been any apology or public expression of contrition 15 The defendant has steadfastly refused to acknowledge any fault or error in relation to these offences. There has been no expression of any remorse or contrition on his part. The closest the defendant went to making an apology was when he said: "I am sorry that the Judges who have persecuted me apparently lack the decency to honour the principles of justice (moral rightness, fairness and good reason). I am sorry, though, if I have hurt the feelings of any of the jurors who were involved in my persecution, as they were simple folk operating under a cloud of ignorance and intentional misdirection". (Submissions on sentence T.14.15) (v) General and personal deterrence 16 The punishment in this matter needs to have regard to the principles of general and personal deterrence. General deterrence arises because of the need to protect the safety and freedom from threat of jurors and to preserve the integrity of jury trials. 17 The principle of personal deterrence applies because this is the defendant's second conviction for contempt, having been convicted on 17 August 2001 of contempt of court for punching a barrister during the course of legal proceedings (Principal Registrar, Supreme Court of NSW v Katelaris [2001] NSWSC 724.) 18 Personal deterrence also arises because of the continuing failure on the part of the defendant to appreciate the seriousness or even the wrongfulness of his conduct. This attitude prevailed both during the liability hearing and the hearing on sentence. (vi) Denunciation of the contempt 19 In this regard the observations of Johnson J in R v Razzak (2006) 166 A Crim R 132 are apposite. "[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." (vii) The character and antecedents of the contemnor 20 The defendant was born on 12 February 1955 and is now 53. He obtained a medical degree from the University of Sydney and was a medical practitioner until he was removed from the Register of Medical Practitioners in NSW in December 2005. The decision by the Medical Tribunal related to the prescribing and use of drugs. 21 Although the defendant had experienced some marital difficulties, these had stabilised by 2002 and his wife was firmly supportive of him during these proceedings. They have a 12 year old child whom they adopted from Columbia. The defendant is acknowledged to be a good father. He provides assistance to his parents who are aged 77 and 83. 22 Since his deregistration as a medical practitioner, the defendant has worked primarily as a gardener but has not been able to earn very much. It is his wife who has worked to support the family, pay the son's school fees and meet mortgage obligations. The defendant is still passionately committed to the growth and exploitation of a low THC commercially viable hemp plant for industrial purposes. 23 The remarks on sentence of Coolahan DCJ when sentencing the defendant on 28 September 2006 remain valid: "Without going into the question of the offender's character in detail, it does seem to me that the offender probably was a skilled and respected medical practitioner who was compassionate and caring so far as his patients were concerned, but who from time to time was content to ignore the bounds of what was proper medical practice and flaunt the law if he did not agree with it. This is also the case so far as this offence is concerned." Determination 24 In relation to the application of s 21A of the Act, I have taken into account as mitigating factors under subs (3) that the emotional harm caused by the offences was not substantial and that they were not planned or organised. 25 Apart from their intrinsic seriousness, the most disturbing aspect of these offences is the complete absence of any remorse on the part of the defendant and his failure to acknowledge any wrongdoing on his part. The defendant's position is not assisted by the fact that this is his second conviction for contempt of court. These matters weigh against the exercise of leniency. 26 Section 5(1) of the Act mandates that a sentence of imprisonment not be imposed upon an offender unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. This question has to be considered before any consideration of how such a sentence might be served (R v Zamagias [2002] NSW CCA 17). 27 The defendant made it clear to the Probation and Parole Service that he would not comply with a Community Service Order, nor would he comply with a Periodic Detention Order. Not surprisingly, Ms Perey concluded that he was not suitable for any community based sentencing options. The defendant's attitude to the Probation and Parole Service is consistent with his attitude throughout these proceedings. For those reasons I accept the conclusion of Ms Perey that the defendant is not suitable for any community based sentencing options. 28 The plaintiff seeks the costs of these proceedings from the defendant. In submissions the plaintiff indicated that the costs would amount to approximately $25,000. No reason has been offered by the defendant as to why a costs order should not be made against him except that he regarded it as a waste of public moneys for the Prothonotary to pursue these contempt proceedings. Accordingly, I propose to award costs against the defendant. 29 It is necessary to evaluate the relative seriousness of each offence. Of the two offences it seems to me that the second is more serious. The first statement, although made in the presence in the jury, was made spontaneously when the verdict was received. The statement made to the TV journalists was more considered and was known and intended by the defendant to be widely promulgated. This difference in seriousness should be reflected in the sentences. 30 In formulating the sentences, I have taken into account the purposes of sentencing in s 3A of the Act. In particular the requirement for denouncing the conduct of the defendant and making him accountable for his actions and ensuring adequate punishment for the offence. In that regard I do not think that in the circumstances of this case a good behaviour bond would adequately meet the purposes of sentencing in s 3A. Accordingly, I propose to impose sentences of imprisonment in respect of each offence. 31 On the other hand, there is scope for leniency. There was no specific intent to interfere with the administration of justice and within this category of contempt the level of seriousness was not high. I am also mindful that the defendant will be obliged to meet a substantial costs order and that significant hardship will be caused to his wife, his son and to his parents if he is placed in custody. In those circumstances I have decided that the sentences of imprisonment in each case should be fully suspended. Orders 32 The orders of the Court are: (i) I declare that the defendant is guilty of contempt of Court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury "Regrettably, the next generation will suffer for your ignorance", which statement had a tendency to interfere with the administration of justice. (ii) I declare that the defendant is guilty of contempt of Court in that at the District Court at Newcastle on 8 March 2006, following the jury's conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the Court in the presence of the media, namely "Australia came to prominence with the sheep industry. Unfortunately a group of twelve sheep just lost a major new industry for New South Wales" which statement had a tendency to interfere with the administration of justice. (iii) The defendant is to pay the plaintiff's costs of these proceedings. (iv) In respect of the contempt the subject of the first declaration, I sentence the defendant to imprisonment for 6 months commencing 18 July 2008. (v) I order that that sentence be wholly suspended for a period of 6 months on condition that the defendant enter into a bond for a term of 6 months to be of good behaviour and that the defendant is liable to be called up for sentence at any time within that period for any breach of this condition. (vi) In respect of the contempt, the subject of the second declaration, I sentence the defendant to imprisonment for 12 months commencing 18 July 2008. (vii) I order that this sentence be wholly suspended for a period of 12 months on condition that the defendant enter into a bond for a term of 12 months to be of good behaviour and that the defendant is liable to be called up for sentence at any time within that period for any breach of this condition. ********** 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.