FEDERAL COURT OF AUSTRALIA

Anderson v XLVII [2015] FCA 19

THE COURT DECLARES THAT:

1.    The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination before an examiner on 5 February 2014, he refused to answer four questions which the examiner required him to answer.

2.    The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination before an examiner on 13 March 2014, he refused to answer four questions which the examiner required him to answer.

THE COURT ORDERS THAT:

3.    The Respondent be imprisoned for a period of four months.

4.    A warrant for the Respondent’s committal to prison for a period of four months issue.

5.    The warrant lie in the Registry with the intention that it not be executed, provided that the Respondent is of good behaviour for a period of fifteen months commencing on 28 January 2015, and that on satisfaction of that condition, the warrant will lapse.

6.    There be liberty to the Applicant to apply in relation to the execution of the warrant in the event that the Respondent does not comply with the above condition.

7.    The Respondent is to pay the Applicant’s costs of and incidental to the proceedings.

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

REASONS FOR JUDGMENT

1    This decision concerns the sanction to be imposed for contempt of the Australian Crime Commission (the ACC).

2    By s 34A of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), persons are in contempt of the ACC if they, when appearing as a witness at an examination before an examiner, refuse or fail to answer a question that they are required to answer by the examiner: (s 34A(a)(ii)). An examiner may apply to this Court for a contemnor to be dealt with in relation to the contempt (s 34B(1)(a)). This Court may deal with the person as if the charged acts or omissions constituted a contempt of this Court (s 34B(5)).

3    The applicant is an examiner appointed under s 46B of the ACC Act. The respondent appeared as a witness before the applicant at examinations on 5 February 2014 and 13 March 2014. On each occasion the respondent refused to answer questions which the applicant required him to answer. That resulted in the respondent being charged in this Court with eight separate counts of contempt.

4    Initially the respondent was represented by Mr ML Abbott QC. He challenged the jurisdiction of this Court to hear and determine the charged contempts. That challenge failed: Anderson v XLVII [2014] FCA 1089.

5    Following the delivery on 10 October 2014 of the Court’s decision on the jurisdictional challenge, the instructions of the respondent’s then solicitors were terminated. The circumstances in which that occurred have not been explained to the Court.

6    On 12 November 2014, the Court granted the respondent an adjournment in which to seek alternative legal advice. Regrettably, the respondent obtained that advice only on 28 November 2014, immediately before the hearing which was to take place that day. Mr D Edwardson QC then appeared and sought a further adjournment in order to confirm his instructions. The Court adjourned the matter to 16 December 2014 for the taking of the respondent’s pleas to the charges and for the hearing of submissions.

7    On 16 December 2014, the respondent pleaded guilty to each of the eight charges of contempt. Part way through his submissions in mitigation, Mr Edwardson informed the Court that the respondent was willing to purge his contempt by answering the applicant’s questions. The Court then adjourned the hearing to 23 December 2014, so as to allow an opportunity for the purging of the contempt to occur.

8    At the resumed hearing on 23 December, counsel for the applicant tendered an audio visual recording and a transcript of the examination which had taken place before the applicant the previous day. These indicated that the respondent had answered the questions which had been the subject of his previous refusal, as well as answering many other questions of counsel assisting the applicant and of the applicant himself. At the end of the examination, the applicant stated his satisfaction that the respondent’s contempt had been purged but said that his delay in doing so had caused “a lack of operational value to the answers”. Counsel appearing for the respondent then requested the applicant to withdraw the application to this Court, but the applicant refused, saying:

I think … it is appropriate that the Court deal with the matter because, as I said to you, an operational imperative has been lost in the view of the Commission by virtue of the almost 10 month delay that has been caused by these proceedings, and so I think it’s important that the Court consider and have regard to the fact that there is or may be a price to pay for taking proceedings that might be stalling.

9    In the submissions on 23 December, counsel for the applicant submitted that, despite the respondent’s purging of his contempt, the Court should impose a sentence of imprisonment for six months. Mr Edwardson contended that any custodial sentence at all would be inappropriate. He did not challenge the right of the applicant to make a submission as to the specific penalty which the Court should impose. In the light of the decision of the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323, it is open to doubt that a submission as to the particular penalty to be imposed for contempt may properly be made by an applicant – see R v QF [2014] VSC 81 at [39]; Grocon v Construction, Forestry, Mining and Energy Union [2014] VSC 134 at [70]. Counsel did not address the application of Barbaro in the present context. In these circumstances, I do not propose to address the issue as it is not necessary to attach any weight to this particular submission of counsel for the applicant.

The Australian Crime Commission

10    In Anderson v XLVII, I summarised certain of the provisions in the ACC Act relating to the functions of the ACC. It is convenient to repeat that summary.

11    By s 7, the ACC Act establishes the ACC. It has the functions specified in s 7A of the ACC Act. Those functions include the collection, correlation, analysis and dissemination of criminal information and intelligence (subpar (a)); the maintenance of a national database of that information and intelligence (subpar (a)); the undertaking, when authorised by the Board of the ACC, of “intelligence operations” (subpar (b)); and the investigation, when authorised by the Board, of matters relating to “federally relevant criminal activity” (subpar (c)). The term “relevant criminal activity” is defined in s 4 to mean any circumstances implying, or any allegations, that a “relevant crime” may have been, or may be committed against a law of the Commonwealth or of a State or Territory. The term “relevant crime” is defined in s 4 to mean “serious and organised crime” or “indigenous violence or child abuse”. Criminal activity has the character of being “federally relevant crime activity” if the relevant crime is an offence against a law of the Commonwealth or of a Territory, or an offence against a law of a State which has a “federal aspect” (s 4). The concept of a federal aspect to a State offence is elaborated in s 4A.

12    By s 7C, the Board of the ACC may determine that certain operations are “special operations” and that certain investigations are “special investigations”. A determination of either kind must describe the general nature of the circumstances or allegation constituting the federally relevant criminal activity, identify that the relevant crime or crimes are or include an offence or offences against a law of the Commonwealth or of a State or Territory, and set out the purpose of the operation or investigation.

13    When the ACC, in carrying out an “ACC operation/investigation”, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory which would be admissible in a prosecution for the offence, its CEO must give that evidence to the Attorney-General of the Commonwealth or the State, or to a relevant law enforcement authority (s 12(1)).

14    The ACC may discharge its functions in a variety of ways. In particular, examiners appointed under Div 3 of Pt 3 of the ACC Act may require the production to them of specified information or documents (ss 20-21), and examiners or police officers on the staff of the ACC may obtain and execute search warrants (s 22).

15    It is evident that the examination of persons by examiners is an important means by which the ACC may obtain information relevant to the discharge of its functions. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30.

16    An examiner may obtain a warrant for the arrest of a person summonsed if there are reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence, or has absconded or is likely to abscond: s 31. It is also an offence for a person at an examination to give evidence that is to his or her knowledge false or misleading in a material particular: s 33.

17    On 4 September 2013, the Board of the ACC made an instrument under s 7C of the ACC Act entitled “Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motor Cycle Gangs) 2013” (the Determination). The Determination authorised an intelligence operation to determine whether groups described as “Outlaw Motor Cycle Gangs” had engaged, were engaging, or may in the future engage, in federally relevant criminal activity, including serious drug offences contrary to Pt 9.1 of the Criminal Code, the unlawful importation, possession or dealing in illegal drugs within the meaning of the Crimes Act 1914 (Cth) or the Customs Act 1901 (Cth), cross-border firearms trafficking in contravention of Pt 9.4 of the Criminal Code, and money laundering within the meaning of s 81 of the Proceeds of Crime Act 1987 (Cth).

The respondent’s contempts

18    On 29 January 2014, the respondent was served with a summons requiring him to attend at the ACC on 5 February 2014 for examination by an examiner. The respondent attended at the required time. He did not have legal representation. Before the commencement of the examination, Ms Jefferson, a Senior Legal Officer employed by the ACC, explained to the respondent some aspects of the process and, in particular, explained the consequences if he refused to answer questions.

19    At the commencement of the examination, the applicant explained to the respondent that he could make an order pursuant to s 30(5) of the ACC Act giving him protection from self-incrimination. The following exchange then occurred:

Mr Anderson:        Would you like me to make that order?

Respondent:    No, because I’m not going to cooperate with you, as far as I’m concerned youse can all get stuffed.

Mr Anderson:    Well I understand that.

Respondent:    And I don’t know any of this shit.

Mr Anderson:    I beg your pardon?

Respondent:    I don’t know what’s going on, I don’t know anything about any of this stuff and I refuse to go any further, so take whatever action you have to take and good riddance.

As can be seen, the respondent indicated that he would not be answering any questions at all.

20    The respondent acknowledged that he had had the opportunity to take legal advice, but had not obtained any legal advice. He then refused to answer further questions, as the following exchange illustrates:

Mr Anderson:        Do you work?

Respondent:    I’m not answering that question … I’m done mate, that, that’s it.

Mr Anderson:    Whereabouts do you live?

Respondent:    I’m done, finished, see ya.

Mr Anderson:    Whereabouts do you live?

Respondent:    I’m not answering.

Mr Anderson:    I require you to answer the question of where you live.

Respondent:    Well I’m not going, I’m not going to do it.

21    After a further exchange in which the respondent refused to answer questions, the applicant asked the respondent whether he understood that his behaviour placed him in contempt of the ACC. The respondent answered in the affirmative and said that he understood that being in contempt could have the consequence of him being imprisoned or fined.

22    After a short adjournment, the examination resumed. It proceeded as follows:

Ms Jefferson:    Mr [Respondent] are you a probationary member of the [named group]?

Respondent:        No comment.

Mr Anderson:    I require you to answer the question whether you’re a probationary –

Respondent:    Well I’m not going to answer it.

Mr Anderson:    Right.

Ms Jefferson:    Mr [Respondent], are you a prospect member of the [named group]?

Respondent:    Not going to answer it.

Mr Anderson:    I require you to answer that question Mr [Respondent].

Respondent:    Well I’m not going to answer it.

Mr Anderson:    Right.

Ms Jefferson:    Mr [Respondent], are you a full patched member of the [named group]?

Respondent:    Once again, I’m not going to answer your question.

Mr Anderson:    I require you to answer that question.

Respondent:    Well I,

Mr Anderson:    It’s materially particular to the matter being …

Respondent:    I don’t care, I’m not answering.

Mr Anderson:    Very well.

Ms Jefferson:    Mr [Respondent], are you a member of an associate club of the [named group] known as the [second named group]?

Respondent:    I’m not going to answer that question either.

Mr Anderson:    I require you to answer that question as well.

Respondent:    Well I’m not going to.

23    Ms Jefferson then asked some further questions which again the respondent refused to answer. The applicant then indicated that the examination would be adjourned in order that the respondent could obtain legal advice.

24    The hearing resumed on 13 March 2014. On this occasion, the respondent attended with both counsel and a solicitor. At the request of counsel, the applicant made an order, purportedly under s 30(5) of the ACC Act, granting the respondent protection against self-incrimination by any of his answers.

25    Ms Jefferson then asked the respondent each of the four questions which he had declined to answer on 5 February 2014. On each occasion the respondent declined to answer, saying “I’m not going to answer your question” or words to the same effect. On each occasion the applicant stated that he required the respondent to answer the question of Ms Jefferson.

26    After the respondent had refused to answer the four questions, the following exchange occurred:

Mr Anderson:    Is it your position that you decline to answer further questions?

Respondent:    Yes.

Mr Anderson:    Does that accord with your instructions Mr [Counsel]?

[Counsel]:    Yes, yes it does.

27    The applicant then informed the respondent that he regarded him as being in contempt of the ACC and would be applying to this Court under s 34B of the ACC Act him to be dealt with for his contempt.

The purging of contempts

28    In the application filed in this Court on 14 March 2014, the applicant sought an order that the respondent was guilty of contempt of the ACC “in that, being a witness appearing at an examination before an examiner on 5 February 2014 and 13 March 2014, he refused or failed to answer questions which the examiner required him to answer”. The accompanying statement of charges particularised eight instances of contempt, being the respondent’s refusal on each of 5 February 2014 and 13 March 2014 to answer the four questions from Ms Jefferson relating to his membership of the named group and the second named group.

29    At the hearing on 16 December 2014, the respondent pleaded guilty to each of the eight charges of contempt. As indicated earlier, when during the course of the submissions in mitigation, it was said that the respondent now wished to purge his contempt by answering the questions, I adjourned the hearing to allow an opportunity for that to occur.

30    At the resumption of the examination before the applicant on 22 December 2014, the respondent answered these questions and, as indicated earlier, additional questions by both Ms Jefferson and the applicant.

31    At the resumed hearing in this Court on 23 December, counsel for the applicant submitted that the applicant’s statement that he was satisfied that the respondent had now purged his contempt should be understood as an indication only that he was satisfied that the respondent had answered the four questions which he had refused to answer on 5 February and 13 March 2014. Counsel contended that the Court should sentence the respondent on the basis that, at the resumed examination before the applicant on 22 December, he had been “not totally cooperative in the examination process” and that “his demeanour and his disposition towards the examiner [had] left a lot to be desired”. Later counsel submitted that “the respondent did not fully cooperate, his attitude was one of evasiveness”.

32    There are a number of difficulties in acting on this submission. It is true that there are some passages in which the respondent used profanities and answered questions in a disrespectful manner. However, immediately after a short adjournment requested by the respondent’s counsel, the respondent apologised for that conduct, and it seems that his apology was accepted by the applicant. As I understand it, counsel did not base her submission on these aspects of the respondent’s conduct.

33    Counsel referred instead to the respondent’s responses to questions from the applicant regarding a lunch which he had attended in August 2014. She submitted that in those responses, the respondent had “feigned a memory failure” by saying that he could not recall who else had attended the lunch. The applicant had pressed the respondent for answers and, after the adjournment to which I referred to earlier, the respondent did answer the applicant’s questions by providing some names and details about the lunch.

34    The applicant did not express any view on 22 December 2014, one way or the other, as to whether the respondent had feigned a lack of memory. Instead, as noted, he expressed his satisfaction that the respondent had purged his contempt.

35    In sentencing for criminal offences, a sentencing judge may not take facts into account in a way which is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. Proceedings relating to the imposition of a penalty for a contempt are sufficiently analogous to the sentencing process for that principle, or a principle having the same effect, to be applicable in the present context. That is especially so having regard to the application of the criminal standard of proof to charges of contempt: Witham v Holloway (1995) 183 CLR 525 at 534. That means that the Court would need to be satisfied beyond reasonable doubt that the respondent had, at times on 22 December 2014, feigned a lack of memory or that in other respects, he had been “not totally cooperative in the examination process”, that “his demeanour and his disposition towards the examiner [had] left a lot to be desired”, and that “his attitude [had been] one of evasiveness”. There are some obvious difficulties for the Court making findings to that effect on the basis of the audio visual record and the written transcript of the proceedings on 22 December 2014, especially having regard to the lack of specificity in the conduct of the respondent alleged by counsel.

36    There is another and perhaps more fundamental difficulty. If it was the case that the respondent had feigned an absence of memory in the examination on 22 December 2014, then he may have committed a separate contempt of the ACC: see s 34A(a)(ii) and (c) of the ACC Act and Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162. There is a principle of sentencing law that conduct which amounts by itself to a criminal offence should not generally be regarded as a circumstance aggravating some other offence. The general principle was stated by Gibbs CJ in R v De Simoni (1981) 147 CLR 383 at 389:

[T]he general principle that a sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

(Emphasis added)

37    King CJ spoke of this principle in R v Austin (1985) 121 LSJS 181 at 183:

It is true that in imposing sentence for a crime, a Judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.

(Emphasis added)

38    Similarly, in R v Teremoana (1990) 54 SASR 30 at 36, Cox J said:

As a general rule, the Judge who is sentencing a person who has been convicted of an offence will have regard to all the circumstances surrounding the offence and this may include its impact upon other people. Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he is not been convicted.

(Emphasis added)

39    In my opinion, the punishment of a person for contempt is sufficiently analogous to the conventional sentencing process for these principles to be applicable in the present context. This by itself makes it inappropriate to have regard, in a way which is adverse to the respondent, to the conduct on 22 December 2014 which was impugned by the applicant’s counsel.

40    Next, it is appropriate to keep firmly in mind the limits of this Court’s jurisdiction. The jurisdiction of the Court under s 34B of the ACC Act is to deal with the contempt of the ACC which was the subject of the examiner’s application and which the Court finds proved: (s 34B(5)). The Court is not vested with jurisdiction to deal with conduct not amounting to a contempt of the ACC. This does not mean that conduct of the kind to which counsel referred may never be relevant to the imposition of a penalty for a contempt of the ACC but care must be exercised in this respect.

41    Finally, I consider it unlikely that the applicant would, on 22 December 2014, have stated his satisfaction that the respondent had purged his contempt if he considered that, by conduct closely associated with that purging, the respondent had committed a further contempt.

42    Having regard to all these matters, I do not propose to take into account, in a way which is adverse to the respondent, his conduct before the applicant on 22 December 2014 which was impugned by the applicant’s counsel.

The respondent’s personal circumstances

43    The respondent was born and educated in Adelaide and is now 33 years old. He has previously had employment in the building and transport industries, including as a truck driver. His counsel submitted that he has no previous convictions, but the respondent did not confirm this in his affidavit. It may be pertinent in this respect that, although previously employed as a driver, the respondent does not presently have a driver’s licence. The circumstances by which that came about have not been disclosed to the Court.

44    The respondent is presently unemployed. It is unclear when he was last in paid employment. He has deposed to an intention to return to live with his grandmother who is elderly and in frail health and is, to an extent, reliant on him for assistance.

45    Counsel for the respondent tendered a report from a psychologist prepared after an examination of the respondent on 17 December 2014. Counsel for the applicant did not indicate any objection to the Court relying on the history obtained by the psychologist from the respondent even though that history has not been independently proved.

46    The psychologist reports that the respondent has “a history of low psychological functioning that has included anxiety associated with an Obsessive-Compulsive Disorder”. The psychologist appears to indicate that that disorder may have been one factor in the respondent’s responses on 5 February and 13 March 2014 but says expressly that he does not consider that that was the only factor involved, referring to the respondent’s own admissions of obstinacy and intransigence.

Relevant principles

47    In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds-Streeton J discussed the legislative purpose of ss 34A-34F of the ACC Act and many of the principles applicable to the punishment of a contempt constituted by a witness’ refusal to answer questions in a Court or Commission of Enquiry. I gratefully adopt Her Honour’s analysis. It is not necessary to repeat the detail presently.

48    I note however, that none of the cases to which Her Honour referred, nor Hannaford v HH itself, involved circumstances in which the respondent had purged the contempt constituted by the refusal to answer questions.

49    The following propositions are pertinent presently:

(1)    A principal purpose of the enactment of ss 34A-34F was to provide the ACC with a means of dealing with uncooperative witnesses which was quicker than the conventional prosecution process. In the explanatory memorandum for the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) the Minister said:

Allowing an examiner to refer a person to a Court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses as contempt proceedings bring with them the threat of immediate detention. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention.

(2)    The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: Wood v Galea (1995) 79 A Crim R 567 at 571; Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118; Hannaford v HH at [39];

(3)    A contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry is usually to be regarded as a serious contempt. As King CJ observed in Von Doussa v Owens (No 3) at 117-8:

The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a Court of law or before some other tribunal or authority which Parliament has empowered to compel answers.

(4)    Because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford v HH at [60]-[63]; Royal Commissioner v Staunton (Unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) at [26]-[27].

(5)    However, coercion is inappropriate if the person has purged his or her contempt, or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: Wood v Galea at 573.

The appropriate penalty

50    In the present case, the respondent has purged his contempt. That being so, the element of coercion has no part to play in the fixation of an appropriate penalty. However, the elements of retribution and deterrence remain important. In addition, the Court’s order should reflect an appropriate denunciation of the respondent’s conduct. Proceedings before the ACC are an important aspect of the community’s endeavours to deal with serious crime, and those summoned for examination should understand that contempts of the ACC will be regarded seriously.

51    In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25], Merkel J identified the following considerations as relevant to the determination of the appropriate penalty for contempts of the Court:

(i)    The contemnor’s personal circumstances;

(ii)    The nature and circumstances of the contempt;

(iii)    The effect of the contempt on the administration of justice;

(iv)    The contemnor’s culpability;

(v)    The need to deter the contemnor and others from repeating contempt;

(vi)    The absence or presence of a prior conviction for contempt;

(vii)    The contemnor’s financial means;

(viii)    Whether the contemnor has demonstrated genuine contrition and made a full and ample apology;

(ix)    Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and

(x)    Whether or not imprisonment is a “last resort” penalty in the circumstances of the case.

Again, I consider those principles to be pertinent in the present case.

52    No explanation for the respondent’s conduct before the ACC has been provided to the Court. In particular there is no suggestion that the respondent refused to answer the questions for a reason which, although misguided, may have had some merit. On the other hand, there is no indication that the refusal was in the nature of a stalling tactic.

53    A little over 10 months and nine months, respectively, elapsed between the respondent’s contempts on 5 February and 13 March 2014 and his purging of those contempts on 22 December 2014. It is understandable in those circumstances that the applicant considered on 22 December 2014 that, despite the purging of the contempts, the delay meant that the answers had lost some of their operational value. Despite the submissions of Mr Edwardson QC to the contrary, I consider it appropriate to proceed on the basis that that was so.

54    Ultimately, the respondent has to take the responsibility for the delay. However, I consider it appropriate to take into account that approximately seven months of the period of delay was occasioned by the challenge to the jurisdiction of this Court to hear and determine the applicant’s application. The respondent did not personally conceive or formulate that challenge. It is apparent that the challenge was conceived and formulated by senior counsel and, although the challenge failed, there has, understandably, been no suggestion that it was made for an ulterior purpose.

55    The respondent is entitled to credit for his pleas of guilty to the charges. However, that credit is diminished by the long period of time which elapsed before the pleas were entered. Further, the respondent has not made any expression of apology or contrition or other acknowledgment of the wrongfulness of his conduct. Further still, in the circumstances, the pleas of guilty were in the nature of a recognition of the inevitable, given the evidence available to establish the contempts.

56    The respondent’s contempts are to be regarded as serious. They appear to involve predetermined defiant conduct. The respondent persisted with his contempts even after having been given the opportunity to consider his position and to obtain legal advice. His stance appears to have been one of calculated defiance of the ACC.

57    It is also appropriate to take into account that some two and a half months elapsed after the Court published its decision on the jurisdictional challenge before the respondent indicated a willingness to purge his contempt.

58    In my opinion, the imposition of a fine would not achieve the punitive and deterrent purpose of a penalty in the present circumstances. In any event, the respondent’s present economic circumstances suggest that he has limited capacity to pay any fine.

59    In my opinion, a sentence of imprisonment is appropriate and I impose a term of four months.

60    There is a question as to whether that sentence should be suspended. The power of this Court to suspend, on conditions, any sentence of imprisonment which it imposes is established: Australian Securities and Investments Commission v Matthews [1999] FCA 803, (1999) 32 ACSR 404 at [29]; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949, (2002) 121 FCR 24 at [138]; Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319 at [55].

61    It is to be remembered that a suspended sentence of imprisonment is a real punishment: Elliot v Harris (No 2) (1976) 13 SASR 516 at 527; R v Harris [2001] SASC 227, (2001) 122 A Crim R 241.

62    I consider that suspension of the sentence of imprisonment in this case is appropriate. The fact that the respondent has purged his contempt is an important consideration in this respect. The suspension of the sentence will reflect in part the respondent’s previous good character, and will enable him to continue to attend to the care of his grandmother. Effect will be given to the suspension by an order that the warrant for the respondent’s imprisonment lie in the Registry with the intention that it not be executed so long as the respondent is of good behaviour for a period of fifteen months commencing on 28 January 2015. In that event, the warrant will lapse. There will be liberty to the applicant to apply for the execution of the warrant in the event that the respondent does not comply with that condition.

63    The respondent is to pay the applicant’s costs of and incidental to the application of 14 March 2014 to this Court.

64    There will be declarations and orders accordingly.

Associate:

Dated:    28 January 2015