FEDERAL COURT OF AUSTRALIA

Hannaford (an examiner under section 46B of the Australian Crime Commission Act 2002) v HH (No 2) [2012] FCA 560

THE COURT ORDERS THAT:

1.    [HH] is sentenced to imprisonment for a term of two months for contempt of the Australian Crime Commission pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth), such sentence to commence on 23 January 2013.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    By interlocutory application dated 24 February 2012, the applicant, John Planta Hannaford, an examiner appointed under the Australian Crime Commission Act 2002 (“the Act”), sought that the respondent, HH (who was already serving an indefinite sentence imposed on [CONFIDENTIAL]), be finally dealt with for his contempt of the Australian Crime Commission (“ACC”) by terminating the indefinite sentence and imposing a further term of between six and nine months imprisonment, such term to commence on 23 January 2013 (when HH becomes eligible for parole under another sentence of imprisonment imposed in the County Court of Victoria).

2    The application was supported by:

(a)    the affidavit of [CONFIDENTIAL], principal lawyer at the Australian Crime Commission (“ACC”), sworn on 24 February 2012;

(b)    written submissions dated 2 March 2012;

(c)    the affidavit of [CONFIDENTIAL] sworn 15 March 2012;

(d)    written submissions dated 15 March 2012;

(e)    further written submissions dated 3 April 2012; and

(f)    written submissions in response to respondent’s further submissions dated 4 April 2012.

3    The application for the imposition of a further term of imprisonment was opposed. The following material was filed in opposition:

(a)    written submissions dated 15 March 2012; and

(b)    further written submissions dated 1 April 2012.

4    The application was heard on 15 March 2012 and on 4 April 2012, when a further adjournment was granted in order to permit the respondent to file further material.

background

5    On 5 November 2010, the respondent pleaded guilty in this court to contempt of the ACC pursuant to s 34A(a)(ii) of the Act, in that, having been summonsed to attend as a witness and to give evidence before the applicant examiner on [CONFIDENTIAL], he refused to answer the questions set out in a certificate dated [CONFIDENTIAL] relating to criminal activities the subject of an ACC special investigation, which the examiner directed him to answer. The respondent was represented by counsel at the hearing on 5 November 2010, but no matters in mitigation of sentence were adduced. There was no evidence that the respondent would not reconsider his position and answer the questions, which related to information at that stage keenly sought by the ACC. Accordingly, on 5 November 2010, I committed the respondent to imprisonment for contempt of the ACC until further order.

6    The detailed background to and reasons for the respondent’s imprisonment for an indefinite term are set out in my reasons for judgment dated 17 November 2010: Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214.

7    When sentenced by this court on 5 November 2010, the respondent was already in custody, as he had been on remand since [CONFIDENTIAL] awaiting trial in the County Court of Victoria in relation to a number of charges of conspiracy to defraud at common law (with a maximum penalty of 15 years imprisonment) and to four charges of obtaining property by deception (with a maximum penalty of 10 years imprisonment for each offence).

8    On [CONFIDENTIAL] in the County Court of Victoria, the respondent pleaded guilty to the charges.

9    On [CONFIDENTIAL], the sentencing judge in the County Court sentenced the respondent to imprisonment as follows:

Charge 1, conspiracy to defraud. 36 months.

Charge 2, obtain property by deception. Four months.

Charge 3, obtain property by deception. Four months.

Charge 4, obtain property by deception. Four months.

Charge 5, obtain property by deception. Four months.

10    The sentencing judge stated:

I direct that one month of the sentence upon Charge 2 be served cumulatively with the sentence upon Charge 1. I determine not to make cumulation orders on all charges, having regard to principles of totality.

That makes a total effective sentence of 37 months. I direct that you serve 25 months before becoming eligible for parole. I direct that 213 days be reckoned as served. I direct it be noted in the records of the court were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 50 months, with a non parole period of 36. I make the disposal and forfeiture orders in the terms of the draft orders which I have signed this day, noting your consents in relation to both matters…

11    At the date of his sentence in the County Court, the respondent had been in continuous custody since April 2010.

12    The sentencing judge noted that the respondent was aged [CONFIDENTIAL], having been born on [CONFIDENTIAL]. He had been placed in a boys’ home, and thereafter lived on his wits. Although unmarried, he had [CONFIDENTIAL] children aged from [CONFIDENTIAL] with whom he maintained contact.

13    The sentencing judge observed that the respondent had no history of substance abuse, an IQ within the normal range and showed no evidence of cognitive impairment, but had offered no explanation of the cause of his offending.

14    Her Honour noted that the respondent had a prior criminal record in England with convictions between [CONFIDENTIAL] for assaults, theft, handling stolen goods and interfering with a vehicle. As a consequence of some of those offences, the respondent was sentenced to community service and gaol in [CONFIDENTIAL]. The sentencing judge noted that the respondent’s prior convictions occurred [CONFIDENTIAL] ago or earlier, and did not involve the same criminality as the present charges, albeit they indicated that gaol had not deterred him from offending.

15    In the County Court, the respondent relied on, and the sentencing judge took into account, the following matters in mitigation:

(a)    Prospects of rehabilitation. Her Honour stated:

I think your prospects of rehabilitation are difficult to assess, given your lack of explanation as regards your offending, but they are probably objectively good, given the age of your prior history and the lack of mental or other issues underpinning your offending which might see recidivism in the future. In the end, the test will obviously come upon your release, and I note that in all likelihood you will immediately be deported, and you will be unlikely be granted an Australian visa in the foreseeable future.

(b)    The respondent’s guilty plea, which her Honour accepted, inherently involved contrition and evidence of remorse.

(c)    The fact that the respondent was isolated in Australia and without support, which made his imprisonment more onerous.

16    The sentencing judge also took into account globally the total length of the respondent’s incarceration in Australia and the principles of totality.

17    In summary, on [CONFIDENTIAL] in the [CONFIDENTIAL], the respondent was sentenced to a term of imprisonment of [CONFIDENTIAL] months with a minimum term of [CONFIDENTIAL] months and a direction that 213 days be reckoned as served. The respondent will become eligible for release on parole on 23 January 2013. If parole is not granted, the respondent’s release date will be 23 January 2014.

18    At the hearing on 15 March 2012, as the applicant submitted that the order of 5 November 2010 was no longer likely to achieve its purpose, I vacated the order of 5 November 2010. The indefinite sentence was thus terminated, although the respondent remained in custody pursuant to the sentence of the County Court.

The parties’ submissions

19    The applicant submitted that the respondent should be sentenced to a finite term of imprisonment, which, in order adequately to denounce his contempt and effectively deter others, should (on the basis of analogous cases, including most importantly, Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26 (“Allbeury”)) take his total sentence to between 18 months and two years. The applicant acknowledged that when dealing finally with the contempt, time served pursuant to an earlier indefinite sentence imposed in order to coerce the contemnor to purge his or her contempt should be taken into account, but submitted that in this case, only the time solely attributable to the indefinite sentence, was “real” imprisonment for the contempt. As the respondent had served only about eight and a half months imprisonment solely attributable to the indefinite sentence for contempt, the applicant submitted that:

(a)    the part of the indefinite sentence which had been served at the same time as the sentence imposed by the County Court should be disregarded; and

(b)    a sentence of between six and nine months, (to commence on 23 January 2013 when the respondent became eligible for parole under the County Court sentence) should be imposed.

20    Counsel for the respondent submitted that no further term of imprisonment should be imposed, as the appropriate range for a contempt of the kind at issue was only six to nine months. Counsel relied in that context, principally on the decisions of the Supreme Court of Queensland (discussed below).

21    Counsel for the respondent submitted that he had not only already served eight and a half months exclusively referable to the contempt, but a much longer period if the entire indefinite sentence (which weighed heavily on the respondent and had resulted in a prison classification entailing more onerous imprisonment) were fully taken into account. Further, there were factors in mitigation, including the respondent’s guilty plea and the fact that his failure to answer questions was actuated by a fear of retribution.

22    By her affidavit sworn on 24 February 2012 in support of the application, [CONFIDENTIAL] deposed as follows:

9    Since [CONFIDENTIAL], there has been no contact between the ACC and the Respondent, or any person acting on behalf of the Respondent. The Respondent has not given any indication that he wishes to purge his contempt by providing responses to the questions posed by the Examiner on [CONFIDENTIAL], either directly or via his legal representatives.

11.    Although the ACC is still desirous of obtaining answers to the questions, the ACC is no longer actively investigating the particular [confidential] activities in which the Respondent and his associates were engaged in both in Australia and internationally, due to the fact that the Respondent and his associates have now been dealt with for these activities by way of criminal prosecution.

12.    Intelligence about [confidential] activities remains of interest to the ACC generally, and also in respect of the ACC Special Investigation in relation to the Respondent's conduct referred to above… This Special Investigation is ongoing under the New Determination, referred to at paragraphs 6.2 and 7 of my Affidavit sworn 5 July 2011.

13.    The total number of days served in custody by the Respondent pursuant to the Orders of this Honourable Court dated 5 November 2010, was two hundred and sixty-three (263) days.

Adjournment of hearing

23    On 15 March 2012, having terminated the respondent’s indefinite sentence, I adjourned the matter in order to permit both parties to make further submissions and in order to permit the respondent’s legal representative, who had only recently been retained, to obtain access to transcript of copies of the relevant Queensland authorities and instructions in relation to matters in mitigation.

24    Further material was subsequently filed and on 4 April 2012 there was a further hearing of the application. The matter was again adjourned to permit the respondent to obtain, file and serve further material, substantiating his submissions on more onerous imprisonment under the indefinite sentence, but no material was filed.

Relevant Case Law

25    In Allbeury, on which the applicant principally relied, Martin CJ imposed sentences of two years imprisonment without parole on the defendants for their contempts pursuant to the Corruption and Crime Commission Act 2003 (WA) (“CCC Act”). One defendant was sentenced to an additional three months imprisonment for a second contempt of insulting the Corruption and Crime Commission. (“the CCC”). His Honour observed at [34] that the court’s discretion was broad and the circumstances giving rise to the offence of contempt varied widely. There was therefore, “no established sentencing tariff or range within which sentences customarily fall”.

26    His Honour referred to Malcolm CJ’s observation in Kennedy v Lovell [2002] WASCA 226 that a common sentence for contempt, where only imprisonment was imposed, was in the range of 12 to 18 months. His Honour also had regard to a table produced by the CCC, which suggested that the range of imprisonment for such contempts was between one and two years. His Honour nevertheless reiterated that there is no established range of tariff for such cases and sentences for contempt of a Royal Commission and for contempt of court generally had (as in Wood v Galea (1997) 92 A Crim R 287) exceeded 2 years in some instances.

27    At [22] Martin CJ adopted as a useful guide, which had been generally accepted, the ten considerations relevant to sentencing for contempt identified by Dunford J in Wood v Staunton [No 5] (1996) 86 A Crim R 183 at 185, namely:

(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; and

(10)    denunciation of the contempt.

28    Martin CJ observed that an indeterminate sentence was inappropriate in the case before him, as such a sentence was directed at endeavouring to coerce the contemnor to purge his contempt by complying with his legal obligations (at [12]). His Honour, nevertheless recognised that “[w]hen an order is made committing the contemnor until further order, the court retains the power to determine whether the contemnor should be further punished, even if he or she purges the contempt” (at [12]).

29    In relation to the objectives of contempt law and the purposes of punishment for contempt, Martin CJ at [18] and [20] referred to Kirby P’s statement in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 313–314, that:

Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said:

… These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.

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 [sic appropriately] emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.

30    Martin CJ considered at [28] that it was of profound significance that the contempts in Allbeury were in the exercise of the CCC’s exceptional powers conferred to facilitate the investigation of organised crime. His Honour stated at [29] that such contempt:

… involves the wilful and concerted defiance of the authority of the State to administer law and order for the safety and security of the community. In that context, wilful defiance of the authority of the State to investigate organised crime and bring its perpetrators to justice by committing contempt of the Commission has special significance. And because the contempts committed by each contemnor involve a deliberate, persistent and calculated defiance of the authority of the State to investigate organised crime, deterrence has great significance in the sentencing process.

31    His Honour emphasised the importance of effectively deterring prospective witnesses from refusing to give evidence. He stated at [31]:

In such a context, the penalty imposed must be significant enough to discourage prospective witnesses from making a calculated choice to suffer a penalty rather than give evidence, and thereby frustrate the achievement of the important policy objectives which underpin those parts of the CCC Act relating to the investigation of organised crime. It is important that those who are summoned to provide evidence to the Commission in the context of such an investigation clearly understand that failure to fulfil the obligations imposed upon them by the Commission, exercising the powers conferred upon it by the Parliament, will be regarded with the utmost seriousness, and will result in significant punishment.

32    His Honour noted that the contemnors before him had persisted in wilful defiance despite a continuing opportunity to purge the contempt by giving evidence. He stated at [32]:

In the context of such contumacious contempt, deterrence will play such a significant part in the sentencing exercise, that personal circumstances and mitigating factors specific to each offender will necessarily have reduced significance. Indeed, the seriousness of the offence committed by each contemnor is such that it would only be a rare and exceptional case in which personal circumstances would have any impact upon sentence.

33    His Honour also considered that as it was inherently probable that those summoned to give evidence would claim to fear retribution if they co-operated “it would seriously inhibit the efficacy of the powers conferred by Pt 4 of the CCC Act, and the achievement of the important public policy objective underpinning the conferral of those powers, if an asserted fear of retribution were to be given significant mitigating weight when sentence is passed…” (at [33]).

34    His Honour concluded that, given the importance of deterrence and denunciation in sanctioning a contempt of the CCC, “the general starting point must be at the upper end of the sentencing range broadly indicated by the cases to which I have referred. Because these are the first penalties imposed for contempt of the CCC, if they fail to have the desired deterrent effect, and others flout the authority of the CCC in future, it may be necessary to increase the sentences generally imposed, in order to support the CCC in its performance of its important investigative functions” (at [35]).

35    His Honour considered the factors identified by Dunford J, listed at [27] of this judgment, which were generally applicable to all contemnors. He found that the offences were extremely serious, as although the contemnors were not, apparently, perpetrators of the violence that had erupted between members of two motorcycle gangs, they had persistently defied the CCC’s authority “to perform its important function in facilitating the investigation” (at [37] of Allbeury) in a matter which, if not regarded as extremely serious, would likely encourage others with information relating to organised crime to adopt similar stance.

36    On 4 April 2012, the date of the final hearing of this matter, the Court of Appeal of Western Australia in Allbeury v Corruption and Crime Commission [2012] WASCA 84 dismissed an appeal from the sentences imposed by Martin CJ.

37    On appeal, Buss JA (with whom McLure P and Mazza JA relevantly agreed) reiterated that “the circumstances giving rise to the offence of criminal contempt are many and varied. There is a wide breadth of sentencing discretion because it is necessary to deal with the wide breadth of facts and circumstances which might give rise to a conviction for the offence [34].” Buss JA conveniently summarised the sentences imposed in a number of relevant contempt cases as follows (at 230 to 235):

[230]    In R v Herring (Unreported, Supreme Court of New South Wales, Slattery AJ, 3 October 1991), the defendant was convicted of contempt in the face of the Supreme Court, committed in the course of a criminal trial in which he was the accused. He escaped from the dock, climbed onto the bench and threatened the presiding Judge. The defendant’s intention was to attack the judge. However, his progress was impeded and, before he could commence the attack, the judge was able to avoid the defendant. The defendant was forcibly restrained and taken back into custody. Counsel were present and the jury was about to enter the courtroom when the contempt occurred. The defendant was sentenced to 2 years’ imprisonment.

[231]    In Wood v Staunton (No 5) (1996) 86 A Crim R 183, the defendant was convicted on two counts of contempt of the Royal Commission. The contempts were committed on different dates. On each count, the defendant was initially committed to prison until further order, with liberty to apply. Eventually, the defendant purged his contempt and answered questions before the Royal Commission. The matter then came before Dunford J for the purpose of fixing a determinant sentence for each contempt. His Honour imposed a sentenced [sic] of 11 months’ imprisonment for the first contempt and 8 months’ imprisonment for the second. Each sentence was back-dated to the date on which the defendant was taken into custody for the relevant contempt.

[232]    In Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846, the defendant was convicted of contempt of court for refusing to answer a number of questions directed to her as a witness in a murder trial. Adams J found that the defendant intended to interfere with the administration of justice. She undoubtedly knew facts about the murder and the implication of the accused (her husband) which were of great importance in the trial. However, disclosure of this material was not vital to the prosecution case because the accused was convicted on other, largely circumstantial, evidence. The defendant evinced no contrition. She was “very much under the influence of her husband who … was ‘a brutal and vicious man’”. To some extent, she was motivated by a sense of misplaced loyalty to her husband together with a foolish bravado. There was some prospect of future rehabilitation. The defendant had a history of illicit drug and alcohol abuse and had made two previous attempts at suicide. The judge sentenced the defendant to 6 years’ imprisonment.

[233]    In Kennedy v Lovell [2002] WASCA 226, the respondent was convicted of three counts of contempt of the Royal Commission. The first was that, without reasonable excuse, he failed to attend the Commission as required by a summons served on him. The second was that, having attended and reported to the Commission on a later date, he refused to be sworn or make an affirmation. The third was that, after attending and reporting to the Commission on that later date, he left the Commission and failed to attend thereafter without having been released from attendance. Each contempt involved a contravention of a provision of the Royal Commissions Act 1968 (WA). The application to punish the respondent for contempt was made returnable before the Full Court. The matter did not come before the Full Court as an appeal.

[234]    The Full Court in Kennedy reviewed the facts and circumstances relevant to the offending and the respondent by reference to all of the factors identified in Wood [No 5]. Malcolm CJ said:

After taking into account all of the matters to which I have referred and [the respondent’s] undertaking to the Royal Commissioner and to this Court to comply with the requirements of the Royal Commissioner regarding his attendance, his obligation to answer questions relevant to the inquiry and the lawful direction of the Royal Commissioner in the future, I have concluded, after some anxious consideration, that [the respondent] should be fined rather than imprisoned [40].

The court imposed a fine of $10,000 for each contempt, being a total of $30,000.

[235]    In R v Abell [2007] QCA 448, the appellant was convicted, after a trial, of one count of refusing to answer a question at an Australian Crime Commission examination, contrary to s 30(2)(b) of the Australian Crime Commission Act 2002 (Cth). By s 30(6) of that Act, the maximum available penalty was a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. The appellant was sentenced to 12 months’ imprisonment with an order directing his release after serving 4 months upon him giving security by recognisance in the sum of $2,000 on condition that he be of good behaviour for a period of 3 years. The Court of Appeal of Queensland dismissed his appeal against sentence. McMurdo P (Holmes & Muir JJA agreeing) said:

In passing sentence the judge observed that [the appellant] had shown no remorse and that he was not entitled to any credit for cooperation with the authorities. In the circumstances, a sentence of imprisonment was the only appropriate sentence. [The appellant’s] refusal to answer questions obstructed proper enquiry into the drug trade. A deterrent penalty had to be imposed.

The judge rightly noted that [the appellant] was not cooperative with the administration of justice and had shown no remorse. He was, both at sentence and when he offended, a mature man. He had a significant criminal history. There was no evidence placed before the court to suggest that he had promising rehabilitative prospects [32]–[33].

38    In the present case, counsel for the respondent submitted that two unreported decisions of the Supreme Court of Queensland involving contempt of the ACC pursuant to s 34A(a)(ii) of the Act constituted more compelling guidance than Allbeury. In the Queensland cases, considerably shorter sentences were imposed than in Allbeury, and the sentencing judges referred to a sentencing range of six to nine months.

39    In Boulton v R (Unreported, Supreme Court of Queensland, Boddice J, 23 June 2011), Boddice J initially sentenced the respondent to an indefinite period of imprisonment as a coercive measure to induce him to purge his contempt of the ACC pursuant to s 34A(a)(ii) of the Act. Following a month’s imprisonment, when it became clear that the respondent would not purge his contempt, the court imposed a final sentence.

40    Boddice J noted that the authorities before him (which were not specified) indicated, and the respondent’s counsel accepted, that the sentencing range was six to nine months imprisonment. However, his Honour considered that a total sentence of only four months was appropriate as the police and the Director of Public Prosecutions had been informed that the respondent was giving evidence, in breach of the confidentiality of which he was assured. Thus, the respondent could have no confidence that any evidence he gave would remain confidential.

41    In Sage v K (Unreported, Supreme Court of Queensland, Mullins J, 28 September 2011), the respondent, a mother with young children, had refused to answer questions of the ACC concerning her involvement in the production of, or profits from, illegal drugs in contravention of s 34A(a)(ii).

42    As the respondent indicated that she would not purge her contempt, Mullins J considered that an indeterminate sentence was pointless. Her Honour observed that, based on comparable authorities (which again were not specified), the sentencing range was between six and nine months imprisonment. Accordingly, her Honour sentenced the respondent to six months imprisonment and (having regard to the hardship entailed by separation of the respondent from her young children), fixed a parole release date two and a half months from the date of sentencing.

Discussion

43    Pursuant to s 34B(5) of the Act, this court is empowered to deal with a person found to have been in contempt of the ACC as if he or she had committed a contempt of the Federal Court. The Federal Court has discretion as to the punishment of contempt, to which no maximum sentence applies.

44    In Hughes v ACCC [2004] FCAFC 319 at [52] and [55] and following, the Full Court (French, Emmett and Dowsett JJ) stated:

52    The power of the Court to punish contempts of its powers and authority is conferred by s 31 of the Federal Court Act:

(1)    Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

By s 24 of the Judiciary Act 1903 (Cth), the High Court has ‘ … the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England’. At the commencement of the Judiciary Act the Supreme Court of Judicature in England could impose penalties for civil and criminal contempts. In upholding the power of the Federal Court to impose fines for wilful breaches of its orders, the majority judges in the Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115 said:

Contempt of court is a distinctive offence attracting remedies which are sui generis: ...

Their Honours referred to Morris v Crown Office [1970] 2 QB 114. In that case, Lord Denning MR, at 125 referred to the common law power of the High Court in England to commit a person to prison for criminal contempt saying:

The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence.

…

55    The range of penalties available to the Court to punish for contempt was set out by Nicholson J in Australian Competition & Consumer Commission v INFO 4PC.com Pty Ltd (2002) 121 FCR 24 (at [138]) as follows (omitting authorities):

… to:

(a)    commit a contemnor to prison for an indefinite period of time;

(b)    to impose a fine for a wilful breach of an order or undertaking;

(c)    to impose a daily fine; and

(d)    to order the sequestration of the assets of a contemnor;

(e)    to suspend on condition any sentence of imprisonment that it might impose in respect to contempt.

45    In Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, the Full Court allowed an appeal from a sentence for contempt of the Federal Court on the ground that it was manifestly excessive and failed to take account of relevant mitigating circumstances. The Full Court stated (at [51]):

In any decision relating to sentencing, an important consideration is consistency with the kinds of sentences imposed in comparable cases. Where there have been sufficient examples of sentences for a particular offence, the range will become apparent. The sentencing judge will generally arrive at a sentence within or close to, that range, depending upon the view taken as to the gravity of the instant offence and the operation of any aggravating or mitigating factors.

46    The Full Court considered a table of sentences of imprisonment for contempt of the Federal Court. The table showed that the longest term previously imposed was 12 months, in two cases involving, respectively, a considerable public interest element and public protection against corporate mismanagement and unlicensed solicitation of funds.

Whether sentencing range for contempt of ACC

47    In Boulton v R and Sage v K, which involved contempts of the ACC pursuant to s 34A of the Act, the judges referred to a sentencing range of six to nine months, but did not identify the source of the range. Boulton v R and Sage v K and a further Queensland decision (the reasons for which were not available to the court) were the only identified decisions on contempt of the ACC pursuant to s 34B of the Act. (R v Abell [2007] QCA 448 and R v Drever [2010] SASCFC 27 concerned a failure to answer questions at an ACC examination contrary to s 30(2) of the Act). The circumstances of contemnors in Boulton v R and Sage v K were clearly very different from those of this case, as confidentiality had been breached in one case and in the other, the contemnor was a parent with the care of young children. In contrast to Allbeury, neither Boulton v R and Sage v K included any detailed, comprehensive discussion of the appropriate range of, or policy considerations relevant to, sentences for contempts of the ACC or analogous bodies.

48    While Allbeury involved contempts pursuant to s 163 of the CCC Act, there are strong similarities with the Act. Martin CJ identified a range of 12 to 18 months as a common sentence for contempt and acknowledged that, while there is no established tariff, contempt of bodies analogous to the ACC empowered to investigate and combat organised crime had attracted sentences of up to and sometimes exceeding two years.

49    On the basis of the material before the court, there is as yet an insufficient number of decided cases to disclose an established sentencing range for contempt of the ACC pursuant to s 34B of the Act. While no “tariff” applies and the cases reveal variation and even apparent inconsistency between various jurisdictions, in my opinion, Martin CJ’s analysis in Allbeury is a preferable and more persuasive guide. Accordingly, a sentence of 18 months to two years is a starting point in the present case. The respondent’s contempt of the ACC is closely analogous to the contempts in Allbeury and lacks important individual factors which were clearly influential in the Queensland cases.

50    Martin CJ’s analysis (which was upheld on appeal) persuasively indicated that a sentence of imprisonment for two years (or possibly longer) without parole may be required adequately to denounce contempt constituted by refusal to answer questions put by a body empowered to investigate organised crime and to deter the contemnor and others from refusing to give evidence in future, thereby undermining the body’s capacity effectively to achieve its purposes. As his Honour observed, contemnors should not face sentences which, by their lenience, provide no incentive to co-operate.

Whether Crimes Act 1914 (Cth) applies

51    The question arose whether the contempt is an offence to which the Crimes Act 1914 (Cth) (“Crimes Act”) applied. The application of the Crimes Act had a two fold relevance.

52    First, if the Crimes Act applies, it would be necessary, when sentencing the respondent to consider, in addition to the factors identified by Dunford J and any other relevant circumstances, the matters specified in s 16A of the Crimes Act. Secondly, under the Crimes Act, a range of sentencing options, including parole, which may not all be available in relation to a contempt of the Federal Court, is available. The applicant submitted that a contempt of the ACC under s 34A of the Act was not a federal offence to which the Crimes Act applied, so it was unnecessary to consider the matters in s 16A of the Crimes Act and accordingly, the court was limited to the sentencing options available for contempt of the Federal Court.

53    Section 16A(1) of the Crimes Act provides:

In determining the sentence to be passed, or the order to be made in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

54    Section 16A(2) of the Crimes Act provides:

(2)    In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a)    the nature and circumstances of the offence;

(b)    other offences (if any) that are required or permitted to be taken into account;

(c)    if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

(d)    the personal circumstances of any victim of the offence;

(e)    any injury, loss or damage resulting from the offence;

(f)    the degree to which the person has shown contrition for the offence:

(i)    by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)    in any other manner;

(fa)    the extent to which the person has failed to comply with:

(i)    any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii)    any obligation under a law of the Commonwealth; or

(iii)    any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g)    if the person has pleaded guilty to the charge in respect of the offence—that fact;

(h)    the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j)    the deterrent effect that any sentence or order under consideration may have on the person;

(k)    the need to ensure that the person is adequately punished for the offence;

(m)    the character, antecedents, age, means and physical or mental condition of the person;

(n)    the prospect of rehabilitation of the person;

(p)    the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

55    The provisions in Part IB of the Crimes Act apply to federal offences. Section 16 of the Crimes Act defines “federal offence” as “an offence against the law of the Commonwealth”. It is therefore necessary to determine whether contempt of the ACC pursuant to s 34A of the Act is “an offence against the law of the Commonwealth”.

56    In Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 (“Pattison”) on which the applicant relied, Gray J held that contempt of the Federal Court was not an offence against the law of the Commonwealth as defined in s 16(1) of the Crimes Act and hence not a federal offence. Therefore, s 20AB(1) of the Crimes Act did not apply to empower the Federal Court to pass the range of sentencing alternatives there specified.

57    In holding that contempt of the Federal Court was not a federal offence, Gray J relied on the reasoning of the majority in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386.

58    In Pattison at [46] to [47], Gray J stated:

As to the possibility of other forms of penalty, the position is less clear. Section 20AB(1) of the Crimes Act 1914 (Cth) (‘the Crimes Act’) provides:

Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.

Section 20AB is found in Pt 1B of the Crimes Act. For the purposes of that part, s 16(1) defines ‘federal offence’ to mean ‘an offence against the law of the Commonwealth.’

In Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, the High Court dealt with the question whether a person charged with contempt of the Family Court of Australia by scandalising the court was required to be tried by jury under s 80 of the Constitution. By majority, the High Court held that, for the purposes of s 35 of the Family Law Act 1975 (Cth) (the Family Court’s equivalent provision to s 31 of the Federal Court Act), contempt of court did not fall within the phrase ‘any offence against any law of the Commonwealth’ in s 80 of the Constitution. See Colina at [16]–[25] per Gleeson CJ and Gummow J and [108]–[113] per Hayne J. McHugh J at [35]–[50] and Kirby J at [70]–[81] expressed the contrary view. The judgment of Callinan J, especially at [119]–[136], focused more upon the words ‘trial on indictment’ in s 80 of the Constitution. It therefore appears that the majority view is that contempt of a court created by Parliament under Ch III of the Constitution is not an offence against any law of the Commonwealth, for the purposes of s 80 of the Constitution. If that be the case, then it is likely to follow that contempt of such a court does not fall within the meaning of the phrase ‘an offence against the law of the Commonwealth’, despite the use of the definite article in that phrase, as against the indefinite article in s 80 of the Constitution.

59    In Re Colina, Gleeson CJ & Gummow J at [16] reasoned that s 24 of the Judiciary Act 1903 (Cth) and s 35 of the Family Law Act 1975 (Cth) (which is in similar terms to s 31 of the Federal Court of Australia Act 1976 (Cth)) are not expressed:

…to confer federal jurisdiction in respect of a particular species of “matter”. They set out particular powers of this court and the Family Court and should read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in those courts by s 71 of the Constitution. The acts constituting the alleged contempts by Mr Torney are not offences against any law of the Commonwealth. That which renders such acts (if proved) liable to punishment has its source in Ch III of the Constitution. The power to deal summarily with contempts is, to use Isaacs J's phrase “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.

60    Hayne J stated at [113]:

I do not accept that s 35 of the Family Law Act 1975 (Cth) creates an “offence” of contempt. Section 35 of the Family Law Act (and s 24 of the Judiciary Act 1903 (Cth) upon which s 35 was obviously based) are, as Gleeson CJ and Gummow J say, declaratory of an attribute of the judicial power of the Commonwealth and identify particular powers of the courts with which they are concerned.

61    It is arguable that the reasoning of the majority in Re Colina (applied in Re Pattison) would not apply to a contempt of the ACC, as it is not, in terms, a contempt of the Federal Court, although it may, in the specified circumstances, be dealt with as such. In Allbeury v Corruption and Crime Commission [2012] WASCA 84, Buss JA (with whom McLure P and Mazza JA relevantly agreed) discussed s 163(3) of the CCC Act (which is in similar terms to s 34B(5) of the Act) His Honour stated that “the words ‘as if’ … are a deeming device” (at [56]) and created “a statutory fiction” (at [58]) whereby a contempt was to be taken to be a contempt of the relevant court. While in Re Colina, the Constitution was identified as the source of the power to punish a contempt of the Federal Court and the liability for such punishment, a contempt of the ACC is, even where the application is made to the Federal Court, not a contempt thereof, although it is to be dealt with on the deemed basis. In such circumstances, the source of power to punish and liability for punishment for contempt of the ACC may differ from that for contempt of the Federal Court.

62    There are nevertheless powerful indications that a contempt of the ACC is not a federal offence. The provision in the Act for a contempt of the ACC to be dealt with as if it were a contempt of the court in which a relevant application is made is cast in the “statutory fiction” form not uncommonly used in relation to contempt of Royal Commissions and similar bodies (see discussion of Martin CJ in Allbeury at [25]).

63    Further, other provisions of the Act, in contrast to the contempt provisions, expressly state that contraventions will constitute an indictable offence.

64    In R v Hood [2007] NSWDC 157 (“Hood”), a sentence under s 33 of the Act was imposed for providing false or misleading evidence at an examination before an examiner. Neild DCJ observed (at [28]):

As the offences are contrary to a law of the Commonwealth I am required, in determining appropriate sentences to impose upon the offender for the offences, to take into account the several factors set out in s 16A of the Crimes Act (Commonwealth) and any other relevant factor.

65    In contrast to s 34B, however, s 33(2) of the Act expressly identifies a contravention of s 33(1) as an indictable offence.

66    In Mercanti v The Queen [2011] WASCA 120, the Court of Appeal of Western Australia considered whether or not a sentence imposed for the appellant’s refusal to answer a question, contrary to s 30(2)(b) of the Act, complied with the requirements of the Crimes Act. Although the court assumed that the sentencing provisions in the Crimes Act applied, s 30(6) of the Act provides that contravention of subsections (1), (2) or (3) of s 30 is an indictable offence.

67    The Act contains no statement that a contempt of the ACC is an offence. The statement in s 34B(6)(a) that Chapter 2 of the Criminal Code applies as if contempt of the ACC were an offence (for the purposes of determining whether a person is in contempt of the ACC), suggests that a contempt of the ACC is not an offence (under or within the meaning of the Criminal Code).

68    The Explanatory Memorandum (Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009) assumes that contempt of the ACC is not a statutory offence. It relevantly states, in relation to s 34B(6):

Subsection 34B(6) will state that the rules and principles in Chapter 2 of the Criminal Code Act 1995 apply to proceedings under the contempt provisions. This section is necessary to ensure that the court can apply the general principles of criminal responsibility in Chapter 2 of the Criminal Code to the contempt proceeding as if it was a proceeding for a criminal offence. For example, this will mean that the circumstances in which there is no criminal responsibility, set out in Part 2.3 of Chapter 2 of the Criminal Code, will apply to the contempt proceeding. This is necessary because the contempt provisions are not statutory offences to which Chapter 2 would ordinarily apply.

69    While the above suggests that the legislature did not intend a contempt of the ACC to be a federal offence, a determination of its status is unnecessary to the disposition of this case. First, irrespective of whether such a contempt is a federal offence, s 34B(5) of the Act empowers this court to deal with it as if it were a contempt of the Federal Court, indicating that the available dispositions are, in any event, limited to those for such a contempt. (While parole is not available for a contempt of the Federal Court, that circumstance is not relevant in this case as parole is not, in my opinion, appropriate).

70    Secondly, if the Crimes Act applied, it would be necessary to consider the matters in s 16A of the Crimes Act. It was common ground, however, that the matters in s 16A applicable in this case largely coincided with the relevant matters identified by Dunford J in Wood v Staunton [No 5], and in the exercise of its discretion, the court is, in any event, entitled and obliged to consider any other relevant matters.

Sentence

71    The authorities establish that deterrence and emphatic denunciation are pre-eminent purposes of punishment for contempt.

72    It is a primary consideration that the sentence imposed adequately denounces the contempt and sufficiently reflects its gravity to achieve deterrence. Although the respondent opposed the imposition of an additional term, it was not disputed that the contempt in the present case was serious and warranted a term of imprisonment. The gravity of the respondent’s contempt of the ACC, in my view approached that of the contempts in Allbeury.

73    In the present case, the considerations identified by Dunford J in Wood v Staunton [No 5], while not exhaustive, were also a “convenient guide”.

74    To the extent that they were potentially applicable, I also considered the factors set out in s 16A of the Crimes Act.

75    It was not disputed that the respondent was aware of the serious consequences of his contempt, which deprived the ACC’s inquiry of his assistance. Counsel for the respondent conceded that he had been represented by counsel at each hearing, had received legal advice on the consequences of refusing to answer the questions posed by the ACC and that his contempt had impeded the investigation of organised crime.

76    The respondent at no stage purged his contempt, despite the opportunity to do so, and while his counsel submitted that this was due to fear of retribution, there was no evidence to that effect. The respondent advanced no reason for, or explanation of, his contempt. He expressed no contrition, whether publicly or otherwise, and offered no apology.

77    For the reasons stated above, a term of imprisonment of between 18 months and two years is a useful starting point in this case. There are, however, features which distinguish the present case from Allbeury, as the respondent is serving a term of imprisonment for other offences (apparently connected with the subject matter giving rise to the contempt), has served an indefinite sentence related to the contempt (albeit part thereof was served at the same time as a sentence for the other offences) and has advanced some mitigating circumstances.

78    The respondent has been imprisoned from April 2010 and will remain imprisoned until about 23 January 2014 unless granted parole. That is, he has been sentenced to a total term of almost four years imprisonment.

79    The respondent has already served about 16 months imprisonment in relation to the indefinite sentence for contempt. From July 2011 to March 2012, however, he was also serving another sentence imposed by the County Court. Thus, only about eight and a half months of the 16 months served under the indefinite sentence for contempt were exclusively referable to it.

80    While counsel for the respondent submitted that the indefinite sentence resulted in a prison classification which aggravated the severity of his detention, no evidence was adduced to support that submission. Nevertheless, as counsel for the respondent submitted, the part of the indefinite sentence that was served at the same time as another sentence cannot be treated as merely illusory. I accept that it constituted a material weight and fetter upon the respondent, of which some account should be taken, while recognising, on the other hand, that the respondent would have been serving a term of imprisonment in any event.

81    There were also some matters in mitigation to which, while cognisant of Martin CJ’s reluctance to accord much weight to personal circumstances in such contexts, I had regard.

82    The respondent pleaded guilty. In Allbeury, Martin CJ was satisfied that no weight should be attributed to the guilty plea of a contemnor who had no tenable defence. The contemnor in question initially failed to appear at trial, where the other contemnors did not adduce evidence and, having relied unsuccessfully on submissions, were convicted. In such circumstances, Martin CJ concluded (at [76]) that when the relevant contemnor entered his guilty plea, “It was nothing more than a recognition of the inevitable outcome of his trial” which would otherwise have been “perfunctory, occupying no more than a few minutes”. The Court of Appeal held that Martin CJ was entitled, in the exercise of his discretion and for the reasons he gave, not to reduce the sentence by reason of the guilty plea (see [2012] WASCA 84 at 273). In the present case, however, it cannot be known what arguments or evidence the respondent may have adduced had he pleaded not guilty. Accordingly, while the respondent’s guilty plea does not bespeak remorse, as he has failed to purge the contempt, it averted the need for a trial and should be accorded due weight in mitigation.

83    I also take into account the fact that the respondent is not a citizen or resident of Australia and that his family, including children, are overseas. As recognised in the County Court, his imprisonment is therefore likely to weigh more heavily.

84    I accept, consistently with the observations of the County Court judge, that the respondent is probably not without prospects of rehabilitation. His prior convictions were of some age and involved less grave criminality than the recent convictions.

85    Save for the above, there was no evidence of the respondent’s health, family circumstances, age, character or circumstances which weighed in mitigation.

86    In all the circumstances, in my opinion, the respondent should be sentenced to two months imprisonment without parole, such sentence to commence at the commencement of his eligibility for parole on the County Court sentence.

87    The further sentence will result in a total sentence of about 18 months for the respondent’s contempt of the ACC. While only about ten and a half months will be served exclusively in relation thereto, in my opinion, the sentence is, in the circumstances, sufficient to denounce the contempt and to achieve deterrence, while reflecting the matters in mitigation.

Associate:

Dated:    30 May 2012