Supreme Court New South Wales Medium Neutral Citation: In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141 Hearing dates: 6 August 2015 Date of orders: 14 August 2015 Decision date: 14 August 2015 Jurisdiction: Common Law - Criminal Before: Wilson J Decision: 1.Steven Smith is convicted of two counts of contempt of court. 2. Pursuant to s.53A, he is sentenced to imprisonment for 3 years, to date from 7 August 2028 and expiring on 6 August 2031. I decline to specify a non-parole period. Catchwords: CRIME – contempt of court – contemnor called as a witness in disputed facts hearing for murder– witness refused to take oath or affirmation - physical threats to court staff – considerations on sentence Legislation Cited: Bill of Rights 1688 (UK) Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Supreme Court Rules 1970 Cases Cited: Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 Cahyadi v R v [2007] NSWCCA 1; (2007) 168 A Crim R 41 Khoury v R [2011] NSWCCA 118 Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 Prothonotary v Wilson [1999] NSWSC 1148 R v Cartwright (1989) 17 NSWLR 243 R v Dodd (1991) 57 A Crim R 349 R v Ehrlich [2012] NSWCCA 38 R v Herring (NSW Supreme Court, Slattery AJ, 3 October 1991, unreported) R v Mostyn [2004] NSWCCA 97;(2004) 145 A Crim R 304 R v Raymond Kennedy [2014] NSWSC 1921 R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132 Re Johnson (1887) 20 QBD 68 Re Steven Smith [2015] NSWSC 832 Registrar of the Court of Appeal v Gilby (NSW Court of Appeal, Mahoney, Priestley and Clarke JJA, 20 August 1991, unreported) Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Registrar of the Court of Appeal v Raad (NSW Court of Appeal, Kirby P, Mahoney and Clarke JJA, 9 June 1992, unreported) Smale v R [2009] NSWCCA 220 Smith v R (1991) 25 NSWLR 1 T v R [2015] NSWCCA 28 Trad v Pickles Auction Pty Ltd; Re Carl Trad [2006] NSWSC 1177 Wilson v The Prothonotary [2000] NSWCA 23 Wood v Galea (1997) 92 A Crim R 287 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Sentence Parties: Steven Smith (Contemnor) Representation: Counsel: Ms. N Adams SC (Amicus Curiae) Ms. M Avenell for contemnor (Contemnor) Solicitors: Crown Solicitor's Office (Amicus Curiae) SJT Law (Contemnor) File Number(s): 2015/00077377 Publication restriction: None Judgment Background 1. On 13 March 2015 Steven Smith ("the contemnor") was called as a witness in proceedings against Raymond Kennedy (R v Kennedy [2015] NSWSC 327). Mr. Kennedy faced sentence for an offence of murder, although the facts of his participation in that crime were greatly in dispute. The contemnor was called by the Crown to give evidence of the circumstances surrounding the murder and of Mr. Kennedy's role in it. 2. As at 13 March 2015 the contemnor, who had been charged with and pleaded guilty to the same offence, together with two unrelated armed robbery offences, had appeared before Barr AJ and been sentenced for his crimes. He was sentenced to an overall term of 23 years imprisonment, with a non-parole period of 17 years. He appeared before the Court from custody. 3. On being called to the witness box the contemnor refused to take an oath or affirmation, refused with many profanities to answer questions asked of him, and became aggressive. He was removed from the Court due to the risk he posed to the safety of those around him. 4. Later that same day the contemnor was given an opportunity to purge his contempt but declined to do so, refusing to enter the courtroom, and maintaining his refusal to give evidence in the proceedings against Mr. Kennedy. 5. He was subsequently charged with three counts of contempt in the face of the court. The charges were in the following terms. "Count 1: Steven Smith you are hereby charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did refuse to take an oath or affirmation when called upon to do so as a witness in the proceedings and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice. Count 2: You are further charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did refuse to answer questions when called upon to do so as a witness in the proceedings and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice. Count 3: You are further charged with contempt of court in that, on 13 March 2015, in the Supreme Court of New South Wales at Darlinghurst in the State of New South Wales, in proceedings before me between the Crown and Raymond Kennedy, you did threaten unlawful violence against an officer of the court, and you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice." 1. The matter was adjourned to permit the contemnor to obtain legal assistance. 2. When the matter was again mentioned before the Court, on 20 March 2015, the contemnor entered pleas of not guilty to each count. 3. The matter could not be immediately heard because, on the date the matter was listed for hearing, the contemnor made an application that I disqualify myself from further hearing the matter on the basis of actual and apprehended bias. I refused that application: In the Matter of Steven Smith [2015] NSWSC 832. 4. On the date ultimately fixed for hearing the contemnor entered pleas of guilty to counts 1 and 3. The second charge was withdrawn. The Facts of the Matter 1. The proceedings in which the contemnor was called as a witness related to the murder of Mr. Stanley Bruce Davies. The murder was a particularly brutal crime in which the elderly Mr. Davies was beaten terribly with fists, feet, and makeshift weapons, and left alone in his home to die. He in fact died on 26 November 2010, from the severe wounds inflicted on him on 19 November 2010. 2. The three assailants involved in this crime each entered a plea of guilty to murder. Raymond Kennedy subsequently sought unsuccessfully to vacate that plea: R v Raymond Kennedy [2014] NSWSC 1921. 3. During his subsequent sentence proceedings Mr. Kennedy disputed the facts of the murder as the Crown alleged them to be, and it was necessary for the Court to hear evidence and make findings as to the circumstances of the murder and Mr. Kennedy's role in it. 4. Although the contemnor had never participated in an interview with police, nor made any witness statement concerning the commission of the murder, he was called by the Crown as a witness on the basis of a conversation he had been involved in on 5 March 2011 in which he claimed that his two co-offenders alone were responsible for the violence visited upon Mr. Davies. 5. On the basis of the content of that conversation, which had been lawfully recorded by police, the Crown was entitled to expect that the contemnor could have given evidence of a pre-arranged plan agreed between he and his two co-offenders to go to the home of the deceased with the intention of breaking into a safe containing cash and valuables that was believed by the offenders to be inside the deceased's home. Further, the Crown could have expected the contemnor to attribute to Mr. Kennedy and the third co-offender the violence meted out to the deceased, including striking repeated blows to the head. 6. On the basis of evidence adduced by Mr. Kennedy during the hearing of his application to vacate the plea of guilty he had entered to murder, it is reasonable to infer that he may have expected the contemnor to absolve him of any participation in a pre-arranged plan to rob the deceased and, particularly, of being personally involved in the violence towards him. Mr. Kennedy both gave evidence to this affect, and called evidence of what he had said to others in that regard: R v Raymond Kennedy [2014] ibid, at [16], [25], and [34]. 7. On 13 March 2015 the contemnor was brought into the court room from the adjacent holding cells. He was in the custody of two Corrective Services officers. The officers brought the contemnor towards the witness box and he was asked by the Court Officer whether he would take an oath or affirmation. 8. The contemnor's demeanour even at that initial stage was hostile and aggressive. He pulled away from Corrective Services officers and said, "I'm not doing nothing". The contemnor was warned about his conduct, but was unrepentant. Although much of what the contemnor said at this time was not able to be transcribed, because he would not physically enter the witness box where a microphone was situated, he repeatedly refused the attempts of the Court officer to offer him a Bible, or to have him move into the witness box. He did so in an intemperate way, with many profanities directed at the officers. 9. A recording of the contemnor's appearance before the Court on 13 March 2015 was played during proceedings of 6 August 2015, and at least some parts of the events could be heard with difficulty. Those portions of the recording that could be transcribed are as follows: "HER HONOUR: Mr Smith, you've been required to come here to give evidence. WITNESS: I don't care. HER HONOUR: If you don't give evidence there is a penalty that can be imposed upon you. WITNESS: You do that. HER HONOUR: Sit down, please. WITNESS: ..(not transcribable).. HER HONOUR: Sit down, please. SPEAKER: Sit down. WITNESS: ..(not transcribable).." (T05:09 – 05:27) 1. This is the conduct which establishes the contempt in the face of the court alleged in count 1. 2. After the contemnor sat down in the witness box an attempt was made to obtain unsworn evidence from him, and he was asked a number of questions. On being asked his name the contemnor sat in silence. When his silence was queried he responded, "I said I'm not fuckin' talking; I told youse" (T05:38). There was then the following exchange: "HER HONOUR: All right. Is there a mobile microphone, Mr Court Officer, that we can move a bit closer to Mr Smith? COURT OFFICER: ..(not transcribable).. turn around, it's the only microphone I've got. HER HONOUR: All right. COURT OFFICER: Talk into the microphone. WITNESS: I'm not fucking talking. I fucking told you before. COURT OFFICER: Talk into the microphone ..(not transcribable).. WITNESS: I'm not fucking talking. HER HONOUR: You're in a courtroom. WITNESS: I don't give a fuck, right? HER HONOUR: All right. Let me warn you of this. WITNESS: What? HER HONOUR: You're serving a sentence now aren't you? WITNESS: Yeah. HER HONOUR: If you behave in the way you are behaving in this Court, if you refuse to answer questions-- WITNESS: What else can you do? HER HONOUR: If you swear in this Court in the way you are-- WITNESS: What else can you fucking do? HER HONOUR: Just listen to me-- WITNESS: Just hurry the fuck up won't you. HER HONOUR: If you swear in the way you are now you can be dealt with for contempt. WITNESS: That's all right. HER HONOUR: Well it won't be a sentence for contempt that will just run concurrent with your existing sentence-- WITNESS: I don't care. HER HONOUR: It will be time on top, do you understand? WITNESS: ..(not transcribable).. COURT OFFICER: Sit down-- WITNESS: I'm not fucking ..(not transcribable).. COURT OFFICER: Sit down. Do you want me - sit down, come on, sit down. WITNESS: ..(not transcribable).. COURT OFFICER: Listen to the judge-- WITNESS: Fuck the judge, fuck you, I'm ..(not transcribable).. COURT OFFICER: Listen to the judge and speak into the phone-- WITNESS: I just want to go. I just want to go-- HER HONOUR: I think we'll take Mr Smith downstairs, gentlemen. We're not going to get anything useful from him." (T06:04 – T07:26) 1. His refusal to answer questions asked of him grounded the second charge of contempt in the face of the court. 2. It was necessary to have the contemnor removed from the court room because of his increasingly threatening demeanour. He stood up in the witness box and turned to face the bench, waving his arms menacingly. 3. When the Corrective Service officers, assisted by the Court Officer, attempted to remove the contemnor from the court room he physically pulled away from the officers, demanded loudly that they not touch him, and raised his fists as if about to strike them. Although I regarded both Corrections officers and the Court Officer as at risk of being struck by the contemnor, his conduct was particularly threatening to one of the Corrections officers, later identified as Officer Little. The contemnor raised his fists to that officer, and threatened him. He volubly and profanely cursed the officers and the Court before being restrained and removed. 4. This was the conduct reflected by the third charge of contempt in the face of the court. Can Count 2 be Sustained? 1. As noted above, count 2 reflected the contemnor's conduct in refusing to answer any questions asked of him, even after being directed by me to do so. 2. Counsel for the contemnor raised an argument as to the viability of count 2. The submission was to the effect that there was no power to compel the contemnor to answer questions in circumstances where he had not taken an oath or affirmation, and thus he could not be in contempt of court for declining to do that which he could not be made to do. 3. As Ms. Adams SC, who was assisting the Court amicus curiae, accepted this proposition, and as count 2 added little or nothing to the contemnor's overall criminality, I marked that charge as withdrawn. 4. Ms. Adams could find no authority directly on point and I am aware of none. 5. It is an interesting point: can a witness be compelled to give unsworn evidence? 6. That a court may receive unsworn evidence is without doubt: s.13 Evidence Act 1995. The question is, has it the power to compel a witness to give unsworn evidence. Since the parties made no submissions beyond that which I have noted above, and the question was not ventilated or considered in any meaningful way, I do not propose to canvas the issue at any length. I note only the following. 7. Section 12 of the Evidence Act 1995 provides a presumption of competence that applies to all witnesses. The same provision makes competent witnesses compellable. Section 13 provides for lack of capacity, and a lack of capacity to give sworn evidence. There is no basis upon which to conclude that the contemnor lacked capacity, as provided for by s.13(1). However, the section assumes that a witness who cannot give sworn evidence will be in that position because of an inability to understand the obligation to give truthful evidence, rather than because of an unwillingness to do so. 8. There appears to be a lacuna in the Act relevant to witnesses who have the capacity to take an oath or affirmation, but who refuse do so. 9. Even if that is not correct, and the contemnor was competent to give unsworn evidence (as count 2 envisaged), those matters referred to in s.13(5) were not explained to the contemnor, and the likely consequence of that is that he was precluded from giving unsworn evidence. 10. In any event, count 2 was withdrawn. 11. The contemnor falls to be sentenced for two counts of contempt of court, counts 1 and 3. Sentencing Principles for an Offence of Contempt 1. Upon conviction for an offence of contempt of court an offender is to be punished as for the commission of a criminal offence. As a common law offence, there is no maximum penalty specified by statute; instead the penalty for contempt is at large. Where a penalty is at large the only restrictions upon the sentence that may be imposed are those that are a natural consequence of the principles relevant to the imposition of criminal penalty, and as provided by the Tenth Article of the Bill of Rights 1688 (UK): Smith v R (1991) 25 NSWLR 1 at 15–18; Wood v Galea (1997) 92 A Crim R 287 at [290]. 2. The Supreme Court Rules 1970 provide for sentences including a fine or imprisonment. Part 55, r13 is in the following terms. "(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. (2) … (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. Rule 13 is a declaratory rather than an exhaustive statement of the penalties that may be imposed: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314; Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 at 320; Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at [37]. 2. The authorities have identified different categories of contempt, being technical contempt, willful contempt, and contumacious contempt. The least serious category is that of technical contempt, whilst the most serious is contumacious contempt. This latter category encompasses acts of willful and intentional defiance of the court's authority, such that the proper administration of justice is diminished. 3. There is no "tariff" for an offence of contempt: Wilson v The Prothonotary [2000] NSWCA 23 at [42]; R v Razzak [2006] NSWSC 1366; 166 A Crim R 132 at [89]. 4. The Crimes (Sentencing Procedure) Act 1999 applies: Jando at [42] – [45]. That being the case the pleas of guilty entered by the contemnor to the charges at a late stage must be taken into account. The lateness of the plea, conveyed to the Office of the Crown Solicitor and my Chambers some few days prior to the date fixed for summary hearing, dictates that a discount of no more than ten per cent on the sentences that would otherwise be imposed should be applied, to reflect the utilitarian value of the pleas. The Objective Gravity of the Offences 1. Assessment of the objective gravity of an offence has always been an essential part of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. R v Ehrlich [2012] NSWCCA 38 at [86]. Factors to be considered in making that assessment, together with matters relevant to the subjective case, in relation to an offence of contempt were comprehensively set out by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, by reference to ten specific factors. They are: "1. The seriousness of the contempt proved. 2. Whether the contemnor was aware of the consequences to himself of what he did. 3. The actual consequences of the contempt on the relevant trial or inquiry. 4. Whether the contempt was committed in the context of serious crime. 5. The reason for the contempt. 6. Whether the contemnor has received any benefit by indicating an intention to give evidence. 7. Whether there has been any apology or public expression of contrition. 8. The character and antecedents of the contemnor. 9. General and personal deterrence. 10. Denunciation of the contempt." 1. A further factor of whether the contempt was motivated by fear of harm has been referred to in other decisions: Wood v Galea (1997) 92 A Crim R 287; Trad v Pickles Auction Pty Ltd; Carl Trad [2006] NSWSC 1177). That consideration can be effectively dealt with under item 5, the reason for the contempt. The Seriousness of the Contempt 1. The first count against the contemnor reflects his refusal to take an oath or affirmation preparatory to giving evidence during the course of a factual dispute in sentence proceedings against Raymond Kennedy for the offence of murder. 2. As one of two co-offenders involved with Mr. Kennedy in the murder of Mr. Davies the contemnor clearly had relevant, and significant, evidence to give on the factual matters in dispute. His refusal to take an oath or affirmation is tantamount to a refusal to give evidence, and had the same effect of denying important evidence to the parties and the Court. 3. His refusal was loudly and aggressively voiced immediately the contemnor was brought to the vicinity of the witness box, and was deliberate and intended. This conduct had the tendency to and did prejudice the integrity of the proceedings before the Court, and compromised the Court's authority. As was noted in Registrar of the Court of Appeal v Raad (NSW Court of Appeal, Kirby P, Mahoney and Clarke JJA, 9 June 1992, unreported), the refusal to answer questions [and, in parallel, the refusal to take an oath or affirmation] (at 14): "[…] 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 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." 1. The reference to "Gilby" is to the decision in Registrar of the Court of Appeal v Gilby (NSW Court of Appeal, Mahoney, Priestley and Clarke JJA, 20 August 1991, unreported) in which the Court said (at 27): "[it] may be accepted that, if witnesses will not give evidence, the process of law enforcement will be less effective and more people will suffer accordingly. There is a public interest in ensuring that, in this regard, disobedience of the law will be, and will be seen to be, punished." 1. Those sentiments have been endorsed in a number of decisions additional to Raad, including Principal Registrar of the Supreme Court of NSW v Tran [2006] NSWSC 1183; and R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132. 2. In my view the contemnor's refusal to take an oath or affirmation was a very serious example of contempt. 3. The second offence reflects the contemnor's aggressive demeanour in the court room and, specifically, the physical resistance he offered to the officials who were endeavouring to secure him and the court, with one officer directly threatened. Violence of this nature in the court disrupts and disturbs the proceedings, and prevents the court from discharging its functions in an orderly way. A court room should be a place where all present, including court staff and other officials are able to play their respective parts in the justice system in safety. Where the safety of officials is threatened or compromised, the work of the court is also threatened, since a court cannot conduct its business without the participation of all of those who have a role to play in its operation. 4. In Re Johnson (1887) 20 QBD 68 Bowen LJ said, "The principle is that those who have duties to discharge in a court of justice are protected by the law, and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to courts of justice." 1. That decision was applied in Prothonotary v Wilson [1999] NSWSC 1148, a case involving a contemnor charged with two counts of contempt, each of which involved the contemnor throwing a bag of yellow paint at the bench, splattering the presiding judge, the court reporter, and the judge's associate with paint. Of that conduct Wood CJ at CL said that it was not the individual who may be the object of an assault or personal attack who is to be protected, but the public which must be protected from "the mischief that will incur if the authority of the courts is undermined or impaired" (at [21]). 2. In R v Herring (NSW Supreme Court, Slattery AJ, 3 October 1991, unreported) Slattery AJ said in relation to a contemnor who had assaulted him on the bench, that the assault or insult were (at 6): "[…] only manifestations of the contempt. It is the disturbance and obstruction of a court in carrying out its official functions in court which constitutes the gravamen of the offence." 1. Threatening a person carrying out an official function necessary to the conduct of the court is to hinder the work of the court, and diminish its authority. It impairs the capacity of the court to administer justice. Such conduct is gravely serious. Whether the contemnor was aware of the consequences to himself of what he did 1. In relation to his conduct before the court the contemnor was warned that he could be dealt with for contempt of the court, and that he may be sentenced to a term of imprisonment additional to the sentences previously imposed. Whilst he may not have understood the specific complexities of proceedings for contempt, he was well aware of the consequences of his behaviour. He persisted in it regardless of consequence. 2. Even after having obtained legal advice about his position, and presumably having a more detailed understanding of it, the contemnor specifically refused to purge his contempt when the matter was next before the Court, on 20 March 2015. The actual consequences of the contempt on the relevant trial or inquiry 1. As is usually the case where a court is denied the benefit of relevant evidence to the determination of a matter before it, there were significant consequences for the administration of justice. 2. Mr. Kennedy was to be sentenced for the very serious crime of murder. The facts of his participation in the crime were substantially in dispute, and the Crown bore the onus of proving the nature of that participation beyond reasonable doubt. On the basis of the contemnor's conversation of 5 March 2011, the Crown was entitled to expect the contemnor to give evidence that: "…the three offenders went to Mr. Davies' home intending to "do the safe". He claimed that the offender and Richard Smith were affected by drugs and, under the influence of drugs, "kept going and going". From the overall context of those comments, it appears that Steven Smith attributed the violence against Mr. Davies to Richard Smith and the offender, including repeated blows to the head delivered by both." (R. v Kennedy at [37]) 1. The Crown was denied the opportunity to elicit such evidence, whilst Mr. Kennedy was denied the opportunity to, either, test that evidence in an effort to establish its untruthfulness or unreliability, or, to elicit evidence from the contemnor consistent with the claims previously made by Mr. Kennedy to have had minimal involvement in the crime. 2. The refusal of the contemnor to take the oath denied the parties and, significantly, the Court and the community, evidence of great relevance. 3. His aggressive conduct and threatening manner posed a risk to the safety of those present, and prevented the Court from proceeding with the matter before it in an orderly fashion. Proceedings were interrupted whilst the contemnor was wrestled from the court room, and the gravity of the proceedings was traduced. 4. The administration of justice in a serious criminal matter was undermined. Whether the contempt was committed in the context of serious crime 1. The contempt was committed during proceedings for the crime of murder, an offence punishable by life imprisonment. Although the proceedings were directed to the resolution of disputed facts in the context of a plea of guilty, rather than in the course of a trial, that has only limited relevance in my view. Although conduct such as that of the contemnor if exhibited before a jury would likely have an even more detrimental affect than the same conduct before a tribunal constituted by a judge, it remains serious. The gravity of the offences lies in the capacity of the conduct to undermine the proper administration of justice. Clearly, that was the outcome here. The reason for the contempt. 1. The contemnor did not give evidence during his sentence proceedings and so there is no direct evidence of the reason or reasons for his conduct. 2. Evidence was tendered to establish that the contemnor had no notice that he was to be called as a witness in the Kennedy matter, and was not either spoken to in conference by the Crown prior to being called, or provided by the Crown with the services of a Witness Assistance Officer. The Court was referred to the Prosecution Guidelines published by the Director of Public Prosecutions relevant to Aboriginal witnesses. 3. Whilst I am prepared to accept that the lack of any notice to the contemnor that he was to be called as a witness in the Crown case against Mr. Kennedy may have contributed to his demeanour of immediate hostility, I do not think the failure of the Crown to speak to the contemnor in conference or to have a Witness Assistance Officer present to aid him is a relevant feature. Whilst the contemnor may have technically qualified under the Director's Guidelines as a witness vulnerable due to his Aboriginality, that did not mandate that he be treated with the delicacy directed to, for example, a complainant of Aboriginal heritage in a sexual assault matter. If nothing else, there would have been clear security concerns in having a Witness Assistance Officer sit with the contemnor to provide him with support. I do not regard the absence of the sort of support sometimes provided by the Crown to Aboriginal witnesses as a feature which can explain or mitigate the contemnor's crimes. 4. Ms. Avenell, counsel for the contemnor, submitted to the Court that it was open to infer that the contemnor was frightened or concerned about the consequences for him as a serving prisoner should he be perceived as an informer or, as an informer is known in gaol parlance, "a dog", and that this was the reason for his contempt. 5. The basis upon which that inference could be drawn was said to be the presence in the court room on 13 March 2015 of not only Mr. Kennedy, but also of a number of family members, particularly in circumstances where another witness called in the Crown case that day had exhibited some reluctance to give evidence. Ms. Avenell relied upon a suggestion made by the Crown Prosecutor to the relevant witness in R v Kennedy that she was concerned at the prospect of being labelled as "a dog" and was unwilling to give evidence for that reason. 6. I do not think that the mere presence of persons in the court room known by the contemnor to be family members of Mr. Kennedy, and the concerns of another individual, is a proper basis upon which to infer that the contemnor was frightened of the consequences of being seen as an informant. That is particularly so in that there was no overt display of hostility from either Mr. Kennedy or his family towards the contemnor, and nothing was done to signal any intention for anyone to do him harm. 7. However, the possible consequences to any serving prisoner of gaining a reputation as an informer, whilst not inevitable, are well known to the courts. That there could be particular danger to an informer witness is recognised by both statute and authority: ss 23(2)(g) and (h) Crimes (Sentencing Procedure) Act 1999; R v Cartwright (1989) 17 NSWLR 243; R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304; T v R [2015] NSWCCA 28. 8. Having regard to what is known of the gaol culture, I think it is reasonable to infer that the contemnor may have been motivated, at least in part, by a wish to avoid being considered as an informer, with all of the negative consequences that can follow the acquisition of such a name. 9. The contemnor also relied upon his relationship to Mr. Kennedy as relevant to his refusal to participate in the court process. There was some evidence in the Kennedy proceedings to the two being "cousins", and I was advised by Ms. Avenell from the bar table that the contemnor is both a cousin twice removed and a cousin thrice removed to Mr. Kennedy. There is no reason not to accept that. It would not be unnatural for the contemnor to feel some loyalty or family allegiance to Mr. Kennedy that would make him reluctant to testify against him. 10. These things may explain, but do not excuse, the contempt. Whether the contemnor has received any benefit by indicating an intention to give evidence 1. This feature has no application in this matter. Whether there has been any apology or public expression of contrition 1. After being removed from the court room on 13 March 2015 the contemnor was asked to return, after having had an opportunity to consider his position. He refused to do so. Upon the Court reconvening in the holding cells at the Taylor Square Court complex, the contemnor, whilst refusing to purge his contempt, made an apology for his conduct, saying "I'm sorry for what I've done miss". 2. It may be accepted that that apology is some expression of remorse for the contemnor's conduct, even when refusing to mitigate the conduct by purging his contempt. Real contrition would have been best demonstrated by giving evidence as he was required to do; the contemnor's apology, whilst probably genuine, falls far short of that. The character and antecedents of the contemnor 1. The contemnor is 28 years of age. He is an Aboriginal man who, according to unsworn information he gave to a psychologist prior to his sentencing before Barr AJ, has a long history of drug and alcohol addiction. His parents were also heavy drinkers and the contemnor told Ms. Anita Duffy that he had witnessed frequent acts of violence during his childhood. At about age three he was removed from his parents' custody and placed with his grandmother, in whose house he remained until his middle teenage years. 2. The contemnor's father died during one of the periods in which he was in custody. His mother suffers poor health. Of his siblings, a number of brothers are also imprisoned, whilst the contemnor's younger sister died unexpectedly in January 2014. 3. The contemnor was educated to Year 9. He has no qualifications and has never held employment. 4. He maintains a long term relationship and he and his partner have two children. The contemnor has regular telephone contact with his partner, although his incarceration at some distance from Kempsey, where his family resides, limits the opportunities for visits. 5. The contemnor's abuse of alcohol and illicit drugs led to crime, and his criminal history dates to 2004, when he was aged about 17 years. All of the entries in his criminal record are for offences of violence and dishonesty, commencing with offences of aggravated assault with intent to rob, and assault in 2004, which led to the imposition of control orders before the Children's Court. The following year the contemnor was dealt with for aggravated break and enter with intent, the circumstance of aggravation being that persons were inside the premises that the contemnor broke in to. A further control order followed. 6. Whilst in juvenile detention the contemnor was recorded as escaping detention in 2002 and 2004, and attempting to do so in 2003. 7. As an adult the contemnor appeared before the Local Court at Gosford in relation to an offence of maliciously destroy property and two counts of intimidation. He received a one month term of imprisonment. In the District Court at Port Macquarie the contemnor was sentenced in 2007 to 3 years and 9 months imprisonment for aggravated break enter commit serious indictable offence. 8. In May 2012 the offender was again before the District Court, for aggravated break and enter, the circumstance of aggravation being that he was in company. He was sentenced to a further term of imprisonment, and was at liberty on parole at the time of the murder of Mr. Davies. 9. In August 2013 the contemnor was arrested and charged with the offences that he is currently serving sentences for, being two counts of armed robbery contrary to s.97(1) of the Crimes Act 1900, and one of murder. For the former offences the contemnor was sentenced to a term of 8 years imprisonment with a NPP of 6 years. That sentence commenced on 8 August 2013. A sentence of 20 years imprisonment was imposed with respect to the murder, to date from 8 August 2016. A NPP of 14 years was specified. His earliest release date is 7 August 2030. 10. Whilst in custody the contemnor has incurred further offences. He has entries in his custodial history noting occasions where he has refused a urine test or returned a sample in which proscribed substances were detected. In December 2013 an entry in the contemnor's Corrective Services case notes records him as failing "to follow directions and [sic] numerous occasions. He likes to push the point when asked to do something. Does not like following the POD routine" (Ex. 4). 11. According to Ms. Duffy, whose 2013 report was tendered as exhibit 3, the contemnor has a limited vocabulary, and test results place him in the lowest percentile of the population with respect to his verbal intelligence. He scored considerably higher on testing of his non-verbal intelligence, scoring better than 79 per cent of the population. It would be open to him to undertake quite advanced technological training, which could be advantageous to his prospects of future employment. 12. The contemnor has undertaken a number of custody based educational courses, including courses relating to mathematical problem solving and music. Although it is meaningless to endeavour to make predictions about how the contemnor will integrate to the community when ultimately released, his willingness to undertake training provides at least some basis for hope as to his future. His rehabilitation is in his hands. General and personal deterrence 1. Both general and specific deterrence are important considerations. 2. General deterrence is ordinarily regarded as the more significant of the two in cases of contempt, since it is critical that others are deterred from similar acts of defiance of the court's processes and of its authority: Razzak at [78]. Those who may be required to participate in proceedings before the courts must understand and accept the obligation that falls on all members of society to obey the direction of a court, and particularly a direction to take an oath or affirmation so as to give evidence. 3. The criminal justice system in particular is required with some frequency to receive evidence from criminals, and criminals already serving sentences of imprisonment. It is the nature of crime that often the only witnesses to its commission are also participants. Since co-accused are compellable witnesses when separately dealt with (s.17(3) Evidence Act 1995), and can thus be required to give evidence, there must be a suitable means of warning all those who may be in the same position as that of the contemnor that there are consequences for defying the courts that carry a real sting. 4. Although it is not probable that the contemnor will personally be placed in the same position again of being required as a Crown witness, and specific deterrence might usually be of lesser significance, the fact that count 3 is based upon the contemnor's violence in the face of the court makes specific deterrence a very real requirement of the sentence to be imposed. That an offender already in custody serving sentences for crimes of terrible violence should so readily resort to a display of physical aggression and the threat of violence is troubling indeed. It tends to demonstrate that the contemnor has learnt nothing from his present incarceration, and specific deterrence has a role to play in the sentence imposed upon him today. Denunciation of the contempt 1. Similarly, the sentence imposed upon the contemnor must be capable of conveying the community's unhesitating rejection of offences of this nature. The rule of law relies upon the maintenance of the authority of the court; any act which seeks to subvert that authority or interfere with the administration of justice must be strongly denounced. The Sentence 1. Having considered all of these features, objective and subjective, I have concluded that only a custodial sentence of some significance can serve the manifold purposes of sentence set out at s.3A of the Crimes (Sentencing Procedure) Act 1999. In particular, only a custodial sentence which extends the contemnor's current custody is capable of punishing him for his crimes, deterring both him and others from similar conduct, and conveying the strongest denunciation of these serious offences. Whilst Ms. Avenell submitted that the Court should give consideration to imposing wholly concurrent sentences, I cannot accept that such an approach is appropriate. 2. Considering the principles set out in R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41, the sentences which the contemnor is currently serving cannot comprehend the criminality of the present offences. Neither can the sentence imposed for one count of contempt wholly reflect the criminality of the other count of contempt: a degree of accumulation is required. Only the principle of totality can require some concurrency between the present sentences, and those imposed today, and between the sentences imposed for each offence of contempt. 3. The contemnor is currently serving the NPP of the sentence imposed upon him for two counts of robbery whilst armed with an offensive weapon. The NPP expires on 8 August 2016, and the sentence imposed upon him for murder commences on the same day. The two sentences together give the contemnor an overall NPP which is about 74% of the total sentence. Should the offender be released to parole when the NPP specified in relation to the offence for murder expires, he could expect to serve 6 years on parole. 4. I am mindful of the need for the contemnor to have an adequate period available to him of supervised liberty. He is likely to face significant difficulties in reintegrating into society, and the supervision and assistance of the parole authority will doubtless be advantageous to him, and provide the best hope for him to live a law abiding lifestyle in the future. It is thus necessary to ensure that the sentence imposed today does not so diminish the available parole period as to render it meaningless. However, a wholly concurrent sentence, which would preserve the existing ratio of sentence would fail entirely to impose a distinct and effective sentence for what is serious and unrelated criminality. Necessarily there will be some alteration in the current ratio of sentence. That is a consequence which I have carefully considered, and regard as necessary. It constitutes a special circumstance in considering the overall sentencing ratio. 5. To some extent the present sentencing exercise must be constrained by the lengthy sentences the contemnor is already serving, together with the application of the totality principle. Those features of the matter have the inevitable result of artificially reducing the effective sentence that the contemnor will serve for his crimes. See Smale v R [2009] NSWCCA 220 for a helpful discussion of the relevant principles by R A Hulme J. 6. I consider an aggregate sentence as provided for by s.53A of the Crimes (Sentencing Procedure) Act 1999 to be appropriate in all of the circumstances. The sentences that would have been imposed individually are, for count 1, imprisonment for 2 years after the application of the discount on sentence reflective of the utilitarian value of the plea, and rounded down; and, for count 3, imprisonment for 18 months, again with some reduction to reflect the utilitarian discount and the rounding down that follows as a consequence of its application. 7. Pursuant to s.45 of the Crimes (Sentencing Procedure) Act 1999 I do not intend to specify a non-parole period, having regard to the existing period available for release to supervised parole. The structure of the sentences I intend to impose will preserve an available parole period of about 5 years, and this should be more than adequate to assist the offender's transition to life in the community. Orders 1. Steven Smith is convicted of two counts of contempt of court. 2. Pursuant to s.53A, he is sentenced to imprisonment for 3 years, to date from 7 August 2028 and expiring on 6 August 2031. I decline to specify a non-parole period. ********** 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: 03 September 2015