NSW Crime Commission v Field [2008] NSWSC 103

New South Wales Supreme Court

CITATION : NSW Crime Commission v Field [2008] NSWSC 103

HEARING DATE(S) : 4.12.06, 6.12.07, 7.12.06, 4.1.07, 4.5.07, 22.6.07, 23.7.07, 8.10.07, 12.11.07, 13.2.08

JUDGMENT DATE : 13 February 2008

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : A fixed term of four years and six months commencing 16 December 2005 and ending on 15 June 2010 is imposed upon which date the offender will be eligible to be considered for parole in respect of the sentence of thirteen years he is serving for the drug offence which expires on 4 January 2014.

CATCHWORDS : Contempt of court - sentence - refusal to be examined in confiscation proceedings - relevant principles.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Assets Recovery Act 1990 s 12(1)

Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 CASES CITED : Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183 R v Bilal Razzak [2006] NSWSC 1366 Registrar of the Court of Appeal v Gilby (unreported NSWCA, 20 August 1991)

PARTIES : NSW Crime Commission Malcolm Gordon FIELD

FILE NUMBER(S) : SC 11852/01

COUNSEL : Mr I D Temby QC (Plaintiff) Defendant in person

SOLICITORS : NSW Crime Commission (Plaintiff) Defendant unrepresented

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

Wednesday 13 February 2008

11852/01 NSW CRIME COMMISSION v FIELD

JUDGMENT ON SENTENCE

1 HIS HONOUR: On 29 May 2003 the offender was sentenced to a term of twelve months' imprisonment for contempt of this Court. That sentence commenced on 5 June 2007 and will expire on 4 June 2008. The contempt comprised a refusal to comply with an order of this Court on 4 July 2001 that he be examined on oath before a Registrar under s12(1) of the Criminal Assets Recovery Act 1990. The facts concerning the contempt are sufficiently set out in the judgment of Bell J delivered by her Honour when the offender was sentenced. I do not need to set out those facts in detail in this judgment but a brief reference to them is necessary. 2 The offender had been arrested on 5 January 2001 upon charges arising out of the importation into Australia of approximately 34 kilograms of ecstasy. On 10 January 2001 the Commission obtained a restraining order in respect of his property. On 27 March 2001 the proceedings were settled and consent terms filed. Other confiscation proceedings commenced on 4 July 2001 concerning the property of the offender and a number of other persons. On 4 July 2001 Simpson J made an order in the requiring the offender to attend before a Registrar of this Court on 13 August 2001 for an examination on oath as to his property and that of the other persons in respect of whom restraining orders had been made. When the offender appeared for his examination on that day he indicated that he would refuse to answer any questions upon the ground that the hearing of the criminal charges against him was pending, although he had been advised by his legal representatives that this was not a ground for refusing to answer questions and could result in his being charged with contempt. 3 The hearing of the contempt charge came before Bell J on 5 April 2002. It was submitted by counsel on the offender's behalf that he had a reasonable excuse for refusing to be examined upon the basis that anything he might say under compulsion could be used to his prejudice at his still pending trial. The offender did not give evidence before Bell J and accordingly there was no evidentiary basis for inferring that he had in fact entertained the fear that any evidence he gave might be used against him in his trial. At all events, her Honour concluded that such a fear did not afford a defence to the charge. After referring to a number of decisions of this Court concerning the punishment for contempt of court her Honour set out the relevant factors, as enunciated in Registrar of the Court of Appeal v Gilby (unreported NSWCA, 20 August 1991) at 26–29: "1. The objective seriousness of the contempt; 2. whether the contemnor was aware of the consequences of what he proposed to do; 3. whether the contempt was motivated by fear of harm should evidence be given; and … 5. whether the contemnor had received a benefit by indicating an intention to give evidence." 4 Her Honour summarised the objective seriousness of the offender's contempt as follows – "The contempt in this case is a serious offence in that it involved a conscious defiance of the authority of the Court. I am satisfied that the respondent was aware of the consequences of his refusal. It is apparent that he had received advice and that he chose to take the course that he did. The parliament has enacted a scheme for the confiscation of the proceeds of criminal activity. An important part of that scheme is the provision for the compulsory examination of persons pursuant to s12 [of the Act]." 5 Bell J was satisfied that imprisonment was the only appropriate sentence. As her Honour observed, the principal matter urged in mitigation of sentence concerned the offender's medical condition. It appeared that he had a history of chronic airflow limitation. This was related to severe adult-onset asthma and required his admission to hospital on a number of occasions. It seems that her Honour accepted the view of Dr Peters of the Prince of Wales Hospital that, based upon the recognised characteristics of patients likely to die from the condition, the offender's prognosis was "a guarded one". Her Honour also referred to the following medical opinion – "Mr Field's condition impacts on his incarceration in that he is clearly not able to tolerate the amount of physical exertion that a normal, healthy person his own age could tolerate. Therefore, he would find it harder to do some of the things that his healthy peers would be able to do. When he suffers an acute exacerbation he does require medical intervention, which is available either within the correctional system, or through referral to an appropriate local hospital." 6 In another report by a specialist in respiratory medicine dated 10 February 2003, the following was cited by her Honour – "Mr Field has mild to moderate chronic airflow limitation on the basis of severe asthma. His asthma is brittle in the sense that he can have rapid fluctuations in airway function (documented with pulmonary function tests) and one episode of life-threatening asthma requiring intubation and artificial ventilation. … Based on my understanding of the difficulties in providing medical care to prisoners, I would have to agree that Mr Field's care could be compromised by being in gaol, compared with living under ordinary circumstances in a city or town with good medical facilities. His situation is probably not much different than a person with severe asthma living in a remote rural region. Mr Field does have a severe, brittle asthma and has already had one life-threatening attack. Had his presentation to Prince of Wales Hospital in June 2002 been delayed by even fifteen or thirty minutes, the outcome may well have been fatal." 7 Bell J found (if I may say so respectfully, correctly) that the evidence fell short of establishing on the balance of probabilities that the fact of imprisonment posed a serious risk of having a gravely adverse effect on the offender's health. However, her Honour considered that the offender's medical condition was a severe one and imprisonment would impose a greater burden on him than otherwise would be the case. Her Honour thought it right to give regard to this consideration in determining the sentence to be imposed. 8 On 11 April 2003 the offender had been sentenced in the District Court to the following terms: first, to imprisonment for one year from 5 January 2001 to 4 January 2002; and, secondly, a further term of imprisonment for thirteen years from 5 January 2001 to 4 January 2014, with a non-parole period of seven years from 5 January 2001 to 4 January 2008. Having regard to the principle of totality, Bell J imposed a sentence, as will be seen, that was substantially concurrent with the sentence passed in the District Court for the drug related offence. 9 On 10 November 2004 the Commission sought orders that it be permitted to approach the Registrar to set a further date for the examination of the offender under s12(1) of the Act in accordance with the order initially made by Simpson J on 4 July 2001. The restraining order in respect of which that examination was ordered was still in force. The application was unsuccessfully opposed by the offender and Bell J gave the order sought. 10 On 17 June 2005 the offender was ordered to attend before a registrar of this Court on 29 July 2005 to be examined on oath. He attended on that date but, when asked to take the oath or affirmation, the offender said, "I refuse to take anything". Counsel for the offender indicated to the registrar that the offender intended to take the same course at any further date to which the examination might be adjourned and informed the registrar that he was "fully aware of the consequences of that attitude". 11 On 16 December 2005 the offender was dealt with by Hulme J for this contempt. After briefly summarising the objective circumstances, Hulme J referred to the serious physical health problems from which the offender suffered and accepted that they argued "for a lesser penalty than might otherwise be appropriate". His Honour also referred to evidence of "some brain damage injury and psychological disturbance or disability". After summarising the report of Dr David Brown and a clinical psychologist, Mr Taylor, which are sufficiently set out in his Honour's judgment and need not be repeated here, Hulme J rejected the submission that the offender's refusal to subject himself to examination derived from his paranoid beliefs about persecution by the Crime Commission coupled with an impairment in abstract reasoning and concept formulation so that his ability to weigh up the relevant factors and form rational judgments about them was probably impaired. The reasons given by his Honour for rejecting the psychologist's conclusions were that the information upon which reliance was placed all came from the offender who did not give evidence and it was therefore impossible to assess the reliability of much of what he said; secondly, the apparent impairment of judgment was in contrast to a history of conducting significant commercial or quasi-commercial dealings. His Honour observed that he was not in a position to make any findings about the matter but simply wished to point out that any conclusion that the offender's judgment was significantly impaired could not be reliably made upon the material that the psychologist had to hand and the other material available to the Court. His Honour therefore approached the sentencing of the offender upon the basis of his obdurate refusal to be examined, a refusal in the face of a prior conviction for contempt for similar conduct for which he had already been sentenced. His Honour took into account the offender's plea of guilty and also his serious physical health problems but, as I have said, declined to give significance to any possible psychological mitigating circumstances. 12 So far as the offender's physical problems were concerned, his Honour made what must be (with respect) the just observation that, whilst he was entitled to have those problems taken into account on the side of leniency, he was able to avoid incarceration for the offence of contempt by obeying the order of the Court. To that extent, his imprisonment continued because of his own obduracy. Accordingly, he was in a significantly different position to that of an offender who was not able to purge or substantially purge the criminality involved in his offence. 13 Hulme J concluded that a prison sentence was required and noted that the sentence imposed by Bell J did not appear to have affected the offender's decision-making. His Honour therefore concluded that the sentence to be imposed must be substantially harsher than that already received. In the result, Hulme J declared the offender guilty of contempt of court by disobeying the order of Simpson J of 4 July 2001 in refusing to be examined on oath before a registrar of the Court on 21 July 2005 but His Honour did not impose a determinant sentence. Having regard to the fact that this was a second offence, its nature and the context in which it was committed his Honour concluded that the offender should be committed to imprisonment until further order of the Court. His Honour noted that, of course, the offender could at any stage take steps calculated to bring his sentence to an early conclusion. Hulme J considered whether he should commence the sentence at the conclusion of the non-parole periods to which he was then subject, observing that the order he would make would "not have any effective operation until the expiration of that time". His Honour concluded that given the nature of the sentence – I assume, designed if possible to impress upon the offender the nature of his contempt and induce him to purge it – he decided that it was appropriate to commence the sentence as at the date of judgment, namely 16 December 2005. 14 On 10 July 2007 the Commission filed a notice of motion seeking an order that the offender be released on a specified date from the imprisonment imposed by Hulme J. This motion, it was thought, was desirable since it was envisaged that the restraining order would be overtaken in due course by an assets recovery order, with the consequence that no further opportunity would be available to the offender to purge his contempt and making it appropriate to fix a sentence to punish him for that contempt. It seems to me that this course was appropriate. Accordingly, it is now necessary that I should sentence the offender for his contempt. 15 The approach taken by Hulme J was, essentially, for the purpose of the legal coercion by punishment of the offender not only for the act of contempt that occurred before the Registrar but to persuade him, if possible, to comply with the order of the Court. The offender's defiance, however, has continued and, despite Hulme J's suggestion that he could purge his contempt, he has not attempted to do so. The sentence imposed by Hulme J, therefore, must be seen as an interim order designed to vindicate the Court's authority and to bring about the offender's obedience to it. The very form of Hulme J's order demonstrates its interim character and its coercive purpose. That purpose would have been frustrated, of course, unless the offender clearly understood – as I am sure that he did – that he would, if he remained disobedient, serve additional imprisonment to that to which he was already subject by virtue of his sentences for the drug offence and Bell J's order. 16 So far as my task is concerned, the sentencing of the offender must proceed by way of applying the Crimes (Sentencing Procedure) Act 1999: see, for example, Principal Registrar of Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at 537 – 538; Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183; R v Bilal Razzak [2006] NSWSC 1366. In the present context, this means, in particular, that I should sentence the offender in accordance with the provisions of s 44 as to the setting of a term of sentence and a non-parole period. 17 Although the offender's contempt comprised a refusal to being examined in accordance with the order of this Court, he was in a somewhat different position to the witness in a trial, especially a criminal trial, who refuses to be sworn or affirmed to answer questions. In some respects it might be thought that the offender's contempt is not as serious as those that occur in the administration of criminal justice. However, not much is to be gained, I think, from comparisons of this kind. The examination of someone in the offender's position, either in respect of his own assets or those of another person, is a vital step in the enforcement of the process of confiscating property associated with criminal activity. The scheme of the Criminal Assets Recovery Act would be significantly frustrated if persons ordered to be examined under the Act refused to obey such orders. Not only does such a refusal frustrate an important part of the legislative scheme to which I have referred but it is also a deliberate defiance of the authority of this Court. It is important in this context that others who might be minded to disobey orders for examination, as this offender has, should be aware that condign punishment will follow any such disobedience.