The Prothonotary of the Supreme Court of NSW v AS [2018] NSWSC 664

Supreme Court New South Wales

Medium Neutral Citation: The Prothonotary of the Supreme Court of NSW v AS [2018] NSWSC 664 Hearing dates: 5 March 2018 Decision date: 07 May 2018 Jurisdiction: Common Law Before: Latham J Decision: The offender, AS, is convicted of the offence of contempt and is sentenced to a fixed term of nine months' imprisonment to date from 1 November 2019, expiring 31 July 2020 Catchwords: CRIMINAL LAW - sentence - contempt in the face of the court - plea of guilty - wilful refusal to answer questions Legislation Cited: Crimes (Sentencing Procedure) Act 1999 District Court Act 1973 s 203 Supreme Court Rules 1970 part 55 rule 13 Cases Cited: Registrar of Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Registrar of the Court of Appeal v Raad (NSWCA) 9 June 1992 (unreported) Wood v Staunton (No. 5) (1996) 86 A Crim R 183 Category: Sentence Parties: Prothonotary of the Supreme Court of NSW (Crown) AS (Defence) Representation: Counsel: D Kell SC and M Pulsford (Crown) G James QC (Defence)

Solicitors: Crown Solicitor for NSW (Crown) De Pasquale Lawyers (Defence) File Number(s): 2018/20054 Publication restriction: Publication of any information tending to identify the offender is prohibited.

sentence 1. The offender, AS, pleaded guilty on 5 March 2018 to one count of contempt, committed in the face of the District Court on 30 August 2017. The penalty for this offence is at large. 2. The circumstances giving rise to the offence are as follows. 3. On XXX the offender was sentenced by Huggett DCJ to an aggregate sentence of 8 years' imprisonment with a non-parole period of four years and six months following his pleas of guilty to an agreement to supply not less than a commercial quantity of cocaine and a supply of not less than a large commercial quantity of MDMA. The former offence arose out of communications in 2015 between the offender and T, wherein code words for cocaine and MDMA were used. In an interview with the offender after his arrest, the offender explained the significance of those code words. 4. The offender was allowed a discount of 5% on his sentence on the basis that the explanations of the code words would be available to the Crown towards proof of offences against T at his trial in July 2017. The offender was subpoenaed by the Crown to give evidence at that trial. He had not provided an undertaking to give evidence for the Crown. 5. On 30 August 2017, the offender was called on the voir dire to ascertain the evidence he would be able to give before the jury. Apart from giving his name and confirming that he was in custody, the offender refused to answer any further questions on the basis that he feared for his own and his family's safety. The offender was directed by the trial judge to answer questions by the Crown Prosecutor on more than one occasion but continued to refuse to do so. The offender was warned that his continued refusal would expose him to liability for contempt. 6. A legal representative appeared for the offender and made submissions on the issue of the referral of the offender to this Court to be dealt with for contempt. On 14 September 2017 the offender was referred pursuant to s 203 of the District Court Act 1973. 7. On 26 September 2017, the jury in T's trial was discharged for a reason unrelated to the offender's conduct. The trial was re-listed for 22 October 2018 but the charges against T were no-billed on 20 April 2018. 8. The offender stands to be sentenced according to Part 55, rule 13 of the Supreme Court Rules 1970 and the Crimes (Sentencing Procedure) Act 1999. The Court may impose such punishment as it deems necessary and appropriate in order to safeguard the administration of justice and uphold the rule of law: Registrar of Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309, 314. 9. The most complete statement of the factors governing sentencing for the offence of contempt appears in Wood v Staunton (No. 5) (1996) 86 A Crim R 183 per Dunford J. The objective factors relevant for the purposes of this offence are the seriousness of the contempt, whether the offender was aware of the consequences to himself of his conduct, the actual consequences of the contempt on the relevant trial, whether the contempt was committed in the context of serious crime, the reason for the contempt, and whether the offender has expressed contrition. 10. The refusal to answer questions on the voir dire was sustained and emphatic. It was a serious contempt in circumstances where the offender was directed by a District Court judge to answer questions on more than one occasion. In that regard, it was an affront to the administration of justice and damaging to the rule of law: Registrar of the Court of Appeal v Raad (NSWCA) 9 June 1992 (unreported). 11. The offender was plainly aware of the consequences of his conduct, having been informed by the judge of the course that would be followed if he continued to refuse to answer questions. 12. The actual consequences on the trial of T are difficult to assess, given that the trial aborted for reasons unrelated to the offender's conduct. It was noted by the judge that the Crown case against T depended to a significant extent on the contents of the offender's record of interview, although T acknowledged that he was speaking to the offender and made some concessions regarding the content of the coded conversations. At the very least, the offender's conduct deprived the Crown of the use of his evidence in T's trial. There is no evidentiary basis upon which I could conclude that the decision to terminate proceedings against T was related to the offender's conduct at the aborted trial. 13. There is no doubt that the contempt was committed in the context of serious drug supply offences. 14. The stated reason for the contempt is not, nor could it be, disputed by the Crown. It is not beyond the realm of judicial knowledge that those who are part of criminal organisations which engage in large scale drug supply are at risk of personal harm if they are perceived as disloyal. There is also the risk of harm which arises out of the fact that persons in custody who give evidence for the Crown are regarded with hostility by the prison population. The offender's reason for the contempt is plausible on its face. 15. The offender did apologise a number of times in the course of the voir dire for his refusal to answer. 16. I turn to a consideration of the offender's character and antecedents. 17. The offender is 32 years of age. Prior to his sentencing by Huggett DCJ, the offender had no criminal convictions. A considerable volume of expert evidence was tendered on the offender's behalf. It sets out the offender's medical, psychological and custodial history. In referring to the salient aspects of that history in what follows, I confirm that I have taken into account the contents of the various reports contained within the folder. 18. The offender's family background was unstable. His parents separated when he was 5 years of age. The offender initially went to Queensland with his mother and her new partner, but was returned to live with his father when he was 7. When the offender was 13 years of age, his mother returned to NSW and re-established a relationship with the offender. The offender's half-brother and two half-sisters are the products of his mother's and his father's subsequent relationships. Another half-brother died in early 2016. 19. The offender was educated to Year 12 and was employed thereafter as a painter, roofing labourer and carpenter. For two years before his arrest in XXX, the offender was unable to work because of a debilitating syndrome, characterised by severe headaches and facial pain. The condition was ultimately diagnosed. Before its diagnosis, the offender had undergone extensive dental treatment in the expectation that such treatment would alleviate his symptoms. When the condition was finally diagnosed, the cost of the stem cell treatment recommended to the offender was considerable. 20. The offender began selling drugs to fund the treatment, although the offender had begun using drugs at the age of 18. His abuse of alcohol, drugs and prescribed medication escalated with the onset of his illness. In addition, the offender has been diagnosed with severe depression and anxiety. He has been prescribed a variety of anti-depressant medications over a number of years. 21. The offender's pain management in custody has been less than ideal, largely owing to a number of moves between various prisons. He continues to suffer severe pain, and his anxiety and depression have been aggravated by the attempt to compel him to give evidence in T's trial. 22. Personal deterrence does not assume a great deal of significance, given that the offender is unlikely to be placed in the position of being compelled to give evidence in the future. General deterrence remains an important consideration, as is denunciation of the contempt, and should be reflected in the penalty to be imposed. 23. The offender's plea of guilty at the earliest opportunity warrants a 25% discount on the sentence to be imposed. 24. The Crown Advocate submitted that accumulation of the whole sentence upon the offender's existing sentence was justified on the basis that the criminality for the contempt is a separate and unrelated matter. That submission ignores the accepted sentencing practice of taking into account the totality of the offender's criminality when imposing a further sentence on an existing one, even if the offending is unrelated. In my view, a degree of concurrency is called for in the circumstances of this case. 25. Taking into account the gravity of the offender's conduct, the nature of the fears which motivated that conduct, the offender's expressed contrition in the course of the voir dire, his limited criminal history and the subjective factors that underpinned his introduction to the supply of drugs, I have determined that a sentence of 12 months imprisonment should be imposed. Applying a discount of 25% to that sentence, I sentence the offender as follows: 26. AS, you are convicted of the offence of contempt. I sentence you to a fixed term of nine months' imprisonment to date from 1 November 2019, expiring 31 July 2020.