FEDERAL COURT OF AUSTRALIA

Anderson v BYF19 [2019] FCA 1959

ORDERS

THE COURT DECLARES THAT:

1.    The respondent is guilty of the charge of contempt of the Australian Crime Intelligence Commission (formerly the Australian Crime Commission) in that, being a witness appearing at an examination before an examiner on 14 December 2018, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

1.    The respondent is imprisoned for a period of 8 months, to be released after serving 4 months, the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

2.    The custodial period of 4 months imprisonment to date from 22 November 2019 to 21 March 2020, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on 22 March 2020 and expiring on 21 March 2022.

3.    A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.

4.    The parties be at liberty to apply in the event that the respondent purges his contempt before the expiration of the period of 4 months imprisonment.

5.    The applicant have liberty to apply in relation to the execution of the remainder of the sentence, if after being released on that condition, the respondent does not comply with it.

6.    The orders previously made prohibiting the publication of the respondent’s name, and suppressing access to the court file are to continue.

7.    The respondent is to pay the applicant’s costs of the application to be assessed if not agreed.

8.    There be liberty to apply.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The respondent was charged with, and pleaded guilty to, the offence of contempt of the Australian Criminal Intelligence Commission (ACIC) committed on 14 December 2018 by his refusal during a compulsory examination conducted pursuant to the Australian Crime Commission Act 2002 (Cth) (ACC Act) to answer six questions which he was required to answer.

2    The applicant seeks, inter alia, a declaration that the respondent is guilty of contempt of the ACIC contrary to s 34A(a)(ii) of the ACC Act, and orders for punishment of that contempt.

3    On 19 June 2019, the particulars of the contempt charges were read to the respondent in this Court and the respondent pleaded guilty to each of the six contempts particularised in the charge. Accordingly, it falls to me to sentence him.

4    For the reasons set out below, I am satisfied that a fixed sentence of imprisonment is appropriate in the present case and I impose a term of 8 months imprisonment to be released after serving 4 months, the remainder of the sentence to be suspended on the condition the respondent be of good behaviour for a period of 2 years.

Evidence

5    In support of the application the applicant relied on the following material:

(1)    originating application dated 9 May 2019;

(2)    statement of charge dated 9 May 2019;

(3)    affidavit of [REDACTED] sworn 6 May 2019;

(4)    affidavit of Shane Douglas Neilson sworn 12 July 2019;

(5)    supplementary affidavit of Shane Douglas Neilson sworn 8 October 2019;

(6)    affidavit of Cameron Hutchins sworn 8 October 2019;

(7)    outline of submissions dated 22 July 2019; and

(8)    outline of submissions in reply dated 8 October 2019.

6    The respondent relied on the following:

(1)    expert report of [REDACTED];

(2)    expert report of Megan Godbee (Forensic Psychologist) dated 25 September 2019;

(3)    witness statement of the respondent dated 26 September 2019;

(4)    an affidavit of [REDACTED] affirmed 27 September 2019;

(5)    an affidavit of [REDACTED] affirmed 27 September 2019; and

(6)    outline of submissions dated 26 September 2019.

7    The above material was admitted without objection. In addition, the parties provided a joint statement of facts. The applicant also provided what, in effect, was a court book with the relevant material, including comparable authorities for the purpose of sentencing and a table summarising the same decisions entitled “Aide [Memoire] re Comparative sentences”.

Statutory and regulatory background

8    The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c).

9    The Board of ACIC has issued a number of determinations about high risk and emerging drugs and has determined they are special operations. Relevantly, on 21 June 2017, the Board issued a determination pursuant to s 7C of the ACC Act entitled, “Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 3) 2017” (HRED3 Determination). The HRED3 Determination authorised an intelligence operation to determine whether certain persons, in concert with one another or with other persons, may have engaged in federally relevant criminal activity, including serious drug offences contrary to Part 9.1 of The Criminal Code (Cth)(Criminal Code). A project named Project Baystone is being conducted under the HRED3 Determination. The federally relevant criminal activity that is being investigated relates to the illicit drug markets for methylamphetamine, cocaine, MDMA and heroin, and the aim of Project Baystone, is to monitor those drug markets and resolve intelligence gaps in relation to those markets. Project Baystone is ongoing.

10    In carrying out these functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 20-22. 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.

11    It is evident that the examination of persons by examiners, such as the respondent in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: Anderson v DKH18 [2018] FCA 1571 (DKH18) at [6]; Anderson v XLVII [2015] FCA 19 (XLVII) at [15].

12    Persons appearing as witnesses at an examination before an ACIC examiner are in contempt of the ACIC if they refuse or fail to answer a question which they are required to answer by the examiner: s 34A(a)(ii). If an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to this Court for the person to be dealt with in relation to the contempt: s 34B(1)(a).

13    If the Court finds the person was in contempt of the ACIC, the Court may deal with the person as if the acts or omissions involved constituted contempt of this Court: s 34B(5). Contempt of this Court is addressed by s 31 of the Federal Court of Australia Act 1976 (Cth), and the procedure for punishment is contained in Pt 42 of the Federal Court Rules 2011(Cth).

Background

14    [REDACTED]

15    [REDACTED]

16    [REDACTED]

17    [REDACTED]

18    [REDACTED]

19    [REDACTED]

20    [REDACTED]

21    [REDACTED]

22    [REDACTED]

23    On [REDACTED], the respondent participated in an interview with Police, at the conclusion of which the respondent was charged with a money laundering offence, namely, dealing with money or property reasonably suspected of being proceeds of crime, greater than $1,000,000 in value contrary to s 400.3(2) of the Criminal Code. That same day at about 7.20pm, the Police executed a search warrant at the respondent's premises, during which they seized various items including a Samsung mobile phone and Australian Tax office documents in relation to a Trust Account in the respondent’s name. The Police found no ledgers, scales, drugs, large sums of cash, indicia of drug manufacture or drug supply.

24    As noted above, on 21 June 2017, the board of ACIC by resolution, commenced the relevant investigation under the HRED3 Determination.

25    On [REDACTED], the respondent was committed for sentence to the Sydney District Court in relation to the offence of dealing with money reasonably suspected of being the proceeds of crime greater than $100,000, contrary to s 400.9 of the Criminal Code. This is a lesser offence than that which the respondent was originally charged.

26    [REDACTED]

27    On 8 October 2018, a summons was issued to the respondent to appear as a witness before the ACIC on 25 October 2018. The summons stated that he was to be questioned about matters, inter alia, relevant to money laundering offences and serious drug offences in relation to HRED3 and Project Baystone.

28    The purpose of the examination of the respondent was described in the evidence as follows:

[REDACTED]

29    On 25 October 2018, in accordance with the summons, the respondent attended the examination, represented by counsel and a solicitor. The respondent was advised that the examination was conducted in private, and took an oath in terms approved by the applicant. The applicant also offered the respondent the opportunity to claim the protection against self-incrimination under s 30(5) of the ACC Act. The respondent accepted the offer of the protection against self-incrimination and the applicant made an order under that provision.

30    After some preliminary questions, the applicant asked the respondent if there were any issues he wanted to raise in relation to the proceedings before they started the investigative questioning, and the following exchange occurred:

Respondent:     I just want to make clear that I'm fearful for my family, family safety and I'd like to not answer any questions today.

Applicant:    So what's the, what fear to do you have for your family's safety?

Respondent:    I have a fear that my wife and [REDACTED] child might be harmed if any evidence I give is, can incriminate anything else.

Applicant:        Well the evidence that you give here stays here.

Respondent:     Yeah, I, but if it's going to incriminate somebody else, I'm fearful of [my] family's safety.

Applicant:     No answer would be used by the Commission in such a way as another person would be able to say, the only person who gave that evidence must have been [BYF19].

Respondent:        I still, I'm still fearful of my safety of my family.

Applicant:        That won't be a good enough,

Respondent:        I understand the,

Applicant:        Excuse. I'm going to ask you questions,

Respondent:        Yes.

Applicant:        And you will be required to answer.

Respondent:        Yeah, I understand the ramifications.

31    The respondent confirmed during the examination that other than his lawyers, he had not told anyone that he was attending the ACIC examination.

32    The respondent did participate in some questioning regarding his family circumstances, his address, the names of his wife and child, his occupation, his employment, his business interests, work associates, details about his work associates, and whether these associates were involved in drugs, including questions being asked about [REDACTED], who was identified during the interview as a friend of the respondent, and an individual called [REDACTED]. However, during the examination on 25 October 2018 the respondent refused to answer a number of questions, many of which, the applicant indicated at the time were “material to the work that the Commission [was] doing.”

33    The applicant informed the respondent that it was his view that the respondent was in contempt of the ACIC. The applicant adjourned the examination to give the respondent the opportunity to obtain legal advice. Shortly after resumption of the examination, it was adjourned until 4 December 2018 on the request of counsel assisting the applicant. Due to personal reasons, the applicant was unable to proceed with the hearing on 4 December 2018, and the examination date was varied on two occasions, being finally set to proceed on 14 December 2018.

34    On 14 December 2018, the respondent attended the examination, represented by counsel and a solicitor, and was advised that his obligations pursuant to the oath and the protections from the order made by the applicant on 25 October 2018 (in relation to the privilege against self-incrimination) continued.

35    During the examination on 14 December 2018, the respondent refused to answer six questions, which are the subject of the application to this Court. The relevant questions and responses in the examination are as follows (emphasis added):

Question 1: To whom did the [REDACTED] belong?

Counsel assisting:     On [REDACTED] were you arrested at Sydney Airport in possession of [REDACTED]?

Respondent:    Yes.

Counsel assisting:    And who did that [REDACTED] [belong] to?

Respondent:         I refuse to answer.

Counsel assisting:     Is there a reason why you refuse to answer?

Respondent:         On the basis that I fear for the safety of myself and my family.

Counsel assisting:     Can you articulate the nature of that fear for your safety?

Respondent:     I don’t know what would happen if I was to say something, it’s in my family, I’ve got a [REDACTED]baby, I can’t put him in any sort of risk, same as my wife.

Counsel assisting:     Why do you fear that your baby or yourself or your wife are at risk?

Respondent:         I just feel like as if they would be at risk if I was to say anything.

Counsel assisting:     Can you articulate any specific threats that have been made against yourself or members of your family?

Respondent:         Not at this stage, no.

Examiner:         I told you on the last occasion when you said that [BYF19], that these and I in fact said my opening remarks to you on that occasion that these proceedings are conducted in private and that the evidence taken is not made available publicly in any way and that there is no likelihood of any person to whom you may refer in the giving of your evidence being asked a question that would lead that person to infer that the only possible way that the information about which, around which the question was framed came from you. Do you remember I said that to you?

Respondent:         I do remember, yes.

Examiner:         I say the same thing to you again. So that a general expressed view in the form that you have just expressed in the absence of anything particularised is simply insufficient having regard to the safeguards that are in place within the Commission to secure evidence that's given to it.

Respondent:         I understand.

Question 2: Who were you delivering the [REDACTED] to?

Counsel assisting:     Had you not been arrested, [BYF19], who were you delivering the [REDACTED] to?

Respondent:         I refuse to answer that.

Examiner:     That’s a question I require you to answer [BYF19] because it’s a question that’s material to the work that the Commission is presently doing.

Respondent:        I understand but I still refuse.

Question 3: Who did that Blackberry belong to?

Counsel assisting:    You [were] also arrested in possession of a Blackberry, is that correct?

Respondent:         Yes.

Counsel assisting:    Who did that Blackberry belong to?

Respondent:        It was, I refuse to answer.

Question 4: From whom or from where did you acquire that phone?

Examiner:     That was a Blackberry that you had with you travelling from [REDACTED]?

Respondent:        Yes.

Examiner:     Did you have it with you when you went from Sydney to [REDACTED]?

Respondent:        Yes.

Examiner:     And from whom or from where did you acquire that phone?

Respondent:        I refuse to answer.

Examiner:        Again, that is a question that’s material to the work the Commission is doing.

Respondent:         I understand.

Examiner:         And I require you to say from whom you acquired the phone.

Respondent:        I still, I understand but I refuse for the safety of my family.

Question 5: From where [REDACTED] did you pick up the money?

Counsel assisting:    Whereabouts [REDACTED] did you pick up the money from?

Respondent:        I refuse to answer that question also.

Examiner:    Well again that, of course is obviously material to the work the Commission is doing.

Respondent:        I understand.

Examiner:     And I require you to answer where it was that, where was, what was the location from which you obtained the funds that were subsequently found in Sydney.

Respondent:     I refuse to answer on the safety fact, of myself, safety for my family

Question 6: Where did you go in the hire car?

Examiner:     Are you, when you went [REDACTED] you hired a car, is that correct?

Respondent:        Yes.

Examiner:    And that car did [REDACTED] before you returned to the airport. Where did you go from the airport in that car?

Respondent:        I refuse again.

Examiner:     Again, that’s a question that is material to the work that the Commission is doing and I require you to answer.

Respondent:        I understand but I refuse.

36    As is apparent from the transcript excerpts above, in relation to these questions the only reason given by the respondent for refusing to answer was that he was in fear for the safety of himself and his family, and when asked whether he could articulate any specific threats of harm that had been made to him or his family, his response was – “[n]ot at this stage, no”.

37    Further, the respondent gave evidence that he had not communicated with anyone as a result of his failure to “complete the task” of delivering the [REDACTED], and that since his arrest nobody involved with the [REDACTED] had approached him or his family in relation to it.

38    The applicant explained to the respondent that the questions that the respondent was required to answer were material to the work that the ACIC was doing. The applicant also reminded the respondent that the proceedings were being conducted in private and there was no likelihood of any person to whom the respondent might refer in giving evidence being asked a question that would lead to his identification.

39    The applicant informed the respondent again that his refusal to answer questions may well constitute contempt of the ACIC. The applicant adjourned the examination to give the respondent the opportunity to obtain legal advice. Having taken legal advice the respondent confirmed that he continued to refuse to answer the questions which the applicant required him to answer. As a result, the respondent was informed that it was the applicant’s opinion that he was in contempt of the ACIC, and that the applicant proposed to make an application to the Federal Court that he be dealt with in relation to the contempt.

40    The applicant made a confidentiality direction under s 25A(9)(b) and the ACC Act.

41    The hearing was adjourned pending these proceedings.

Relevant legal principles

42    In DKH18, White J summarised some of the authorities which reflect on the significance and importance of the offence of contempt (both in the context of the ACC Act and more broadly), at [24]-[27] as follows:

[24] A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, 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. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation.

This investigation is still in progress in that the inspector has not, we are told, lodged his report, and the applicant still has the opportunity to purge his contempt by giving the answers required. His continuing non-compliance with the Court's order to do so amounts to a deliberate and considered persistent defiance of the authority of the law. It cannot be condoned or tolerated.

…

It is to be emphasised that [the] answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation.

[25] King CJ referred with approval to a statement of Mitchell J that, if witnesses were able to gain the impression that information sought by an inspector could be withheld "by the mere payment of a tariff", investigations may well prove completely ineffective, at 118.

[26] A statement of Moffitt P in Thelander v Woodward [1981] 1 NSWLR 644 at 646 is to like effect:

Where appropriate, the sanctions of contempt and a charge under s 21 should be pursued with vigour and expedition. Indeed unless this is done an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime.

[27] In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds-Streeton J noted:

[57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach.

Dodds-Streeton J also noted, at [59], that a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was "the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the ACC's purposes".

43    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: XLVII at [49] per White J; Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567 (Wood v Galea) at 571 per Hunt CJ; Von Doussa v Owens (No 3) (1982) 31 SASR 116 (Von Doussa v Owens (No 3)) at 118 per King CJ (Zelling and Wells JJ agreeing); Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 (Hannaford) at [39] per Dodds-Streeton J citing Wood v Galea at 571. 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: XLVII at [49]; Wood v Galea at 571; Von Doussa v Owens (No 3) at 117-8 per King CJ (Zelling and Wells JJ agreeing).

44    It has been recognised, that because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: XLVII at [49] per White J citing Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford at [60]-[63], although 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: XLVII at [49] per White J; Wood v Galea at 573.

45    Recently, in Anderson v GPY18 [2019] FCA 954, Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: and see for example: DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 (Allbeury) at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 (Hannaford (No 2)) at [27]. Although it must be acknowledged that the list of considerations is not exhaustive: Hannaford (No 2) at [73].

46    Dunford J identified ten considerations in assessing the proper punishment for contempt in the following terms:

(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.

47    And see: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25] per Merkel J; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (Kazal) at [101]-[103] per Besanko, Wigney and Bromwich JJ.

48    There are a range of penalties available to the Court in punishing for contempt: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24 at [138], set out the range of penalties as follows:

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

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

(3)    to impose a daily fine;

(4)    to order the sequestration of the assets of a contemnor; and

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

49    In GPY18 at [29] Banks-Smith J provided an analysis of some of the sentences imposed for the offence of contempt, including for the refusal or failure to answer questions, which reflects the breadth of the sentencing options.

50    Before I proceed to consider the appropriate sentence in this matter, I turn to the submission initially made by the respondent that as this offence of contempt is a Commonwealth offence, Pt 1B of the Crimes Act 1914 (Cth), which sets out principles in relation to sentencing for such offences, applies.

51    This matter was addressed by Dodds-Stretton J in Hannaford (No 2) who, after considering relevant authorities, concluded at [69]-[70]:

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).

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.

52    The applicant submitted that for the reasons advanced in Hannaford (No 2) at [51] – [70], I do not need to resolve the issue. At the hearing, the respondent agreed with that approach.

53    In any event, I note that the considerations to be taken into account on sentence for contempt, as illustrated by the non-exhaustive list referred to above, are not relevantly different from those applied in the sentencing of Commonwealth offences. Moreover, the range of sentences available, are necessarily limited by s 34B(5) of the ACC Act.

Consideration

54    There is no doubt that in the context of the statutory scheme, this offence of contempt is properly characterised as serious. The respondent’s approach in refusing to answer questions undercuts the effectiveness of the scheme which authorises these compulsory examinations. Indeed, as remarked upon in previous cases, the examination processes would be hamstrung if all witnesses adopted the approach that the respondent has taken. The investigations of which the examination was a part, are of significant importance to the protection of the broader community. The serious impact on the community of illicit drug use and supply, and associated crime is uncontentious. General deterrence must necessarily play a prominent role in any such sentence.

55    These contempts were deliberate. The respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to take legal advice and to consider that advice, with the hearing being adjourned specifically for that reason on more than one occasion. The respondent was represented by counsel and a solicitor.

56    The respondent’s explanation for refusing to answer these questions is a fear for his family for potential retribution. This fear was a generalised fear, as the respondent did not identify any specific threat. To the contrary, the respondent said there had been no threat made to his family. The respondent confirmed during the examination that no-one but his lawyers were aware of his attendance before the ACIC.

57    The respondent’s submission on sentence was that the same fears that motivated him to decline to answer questions that would implicate the owners of the money, would also motivate him to not specify the source of those fears. However, that was not the respondent’s explanation during the examination and is inconsistent with the answer actually given, that there had been no threat to his family.

58    Fear of retribution is a matter that will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43].

59    Relevantly, in Hannaford (No. 2) at [33], Dodds-Streeton J referred to the comments of Martin CJ in Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26 (Allbeury (No 2)) at [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…”

60    And in GPY18 at [31] Banks-Smith J observed:

…it can fairly be said that the exercise of powers to facilitate the investigation of matters such as those the subject of the HRED 3 determination would also be impeded if significant mitigating weight were given to an assertion of fear of retribution as a reason for refusing to provide information. Whilst I acknowledge the somewhat limited explanation for the contempt given by the respondent, it is not a matter to which I give any real weight by way of mitigation.

61    Those comments are equally apt to the circumstances of this case.

62    While the respondent accepted that the motive for his refusal to answer the questions may not mitigate the penalty, he submitted that it nonetheless reduced his moral culpability. The distinction appears to be a fine one. That is particularly so given the purpose of the examination in the context of the legislative scheme. The same reasons that negate this motive being a mitigating factor apply equally to this submission. That said, I recognise that an examinee who refuses to answer questions might be motived for other reasons (e.g. to protect others on the basis of friendship), which might be considered to be more culpable. Some examinees may simply refuse to answer any questions or participate in the examination process in any way, see for example: XLVII at [19]–[26]. Meanwhile, others may deliberately obstruct an investigation by giving false evidence: see for example, Sage v ZZ (No 2) [2015] FCA 450; (2015) 234 FCR 251 (Sage v ZZ (No 2)). I do note also that as outlined above at [32], the respondent did answer some questions, and there was no suggestion that the answers he provided were false or misleading.

63    Part of the issue for the respondent is that the explanation offered for his conduct is a general one. The fear is based on what is really seen to be inherent in being involved with criminal activity of the type being investigated. While the respondent submitted that his position was somewhat different because he had been charged and his criminal matter was being dealt with in open court, in my view that is no relevant point of distinction. Regardless of whether his criminal matter was being dealt with in open court or not, those involved with the money that was seized from him would be well aware of the fact that the respondent had been arrested. In that context there is no evidence of the respondent being approached by any person associated with the money, and no threats have been made to him or his family in relation to the same. That was so at the time of the questioning and continues to be the case. As was the case in GPY18 and Hannaford (No 2), the respondent offers no more than a generalised fear of potential retribution which in the assessment of mitigation, cannot be given any real weight.

64    The information sought by the answers the respondent refused to give, is still sought by the ACIC, and the operation is an ongoing one.

65    The applicant submitted that the respondent’s contempt of the ACIC prevented it from questioning him about his knowledge of the matters set out above at [35] and from obtaining valuable criminal intelligence concerning the alleged trafficking of drugs between NSW and [REDACTED]. The applicant submitted that the answers would have permitted the ACIC to identify and disrupt serious and organised crime that was occurring in NSW by unknown persons who were the suspected source/suppliers of drugs. In support of its contention that the questions the respondent refused to answer were material to the work the ACIC was doing, the applicant relied on the affidavit of Shane Douglas Neilson (the Neilson Affidavit).

66    The respondent’s submission that he was at a low level within any criminal hierarchy that the ACIC was investigating and therefore, would have been privy to very little information is of no weight. The submission is entirely speculative, based on general assertions and does not recognise that the information, if provided, could potentially lead to further inquiries. There is no basis for the respondent’s assertion that his evidence at most would confirm information the ACIC already had. Having said that, I note that the money laundering offence to which the respondent pleaded guilty was the lowest level money laundering in the hierarchy of money laundering offences in the Criminal Code. It is an offence based on reasonable suspicion, as opposed to intention, knowledge or recklessness.

67    The applicant’s evidence as to the utility of the information sought (particularly in the Neilson Affidavit) is also speculative. During the sentencing hearing the applicant made clear that one cannot hypothesize as to the level of assistance that may have been gained had the respondent co-operated. The applicant also explained that the purpose of this evidence is to indicate that notwithstanding the examination took place in December 2018, the answers to the six questions are still important to the ACIC. While the respondent initially submitted that the Neilson Affidavit could not satisfy the Court that the respondent’s contempt had a substantial impact on the ACIC investigation, it was ultimately accepted by the respondent that the answers sought to the questions, because of their nature, are considered by ACIC to be relevant to their investigations. I accept the relevance and the potential significance of the answers sought to the six questions.

68    However, there has been some delay in this matter. Despite being arrested in possession of the money and being charged with a substantive offence at that time, it was [REDACTED] months before the respondent was summonsed to give evidence. It took a further [REDACTED] months to institute these proceedings after the contempt had been committed. It appears that there has been no particular urgency in obtaining the information. The respondent submitted that this can be contrasted to cases like DKH18 in which an indeterminate sentence was imposed, and the timeline of events leading to the application at the Federal Court was significantly shorter. The contention being, that “there must be something to be said” for the fact that the intelligence sought by the ACIC in this instance, would now be at least a year and a half old. While the applicant submitted the answers are still relevant, the length of time may well have lessened their significance, particularly in a context where those with whom the respondent dealt are well aware of the money being seized. I note that delay alone will not necessarily render the information sought by the ACIC irrelevant. For example, in Sage (No 2), the relevant examinations took place a year prior to the respondent being sentenced to an indefinite period for contempt in this Court: see Sage v ZZ [2015] FCA 417.

69    The respondent has not purged his contempt. There is evidence, which I accept, that he has had opportunities to do so. This is also relevant to the assessment of his expressed remorse. The respondent provided a written statement to the Court. The statement is not sworn, which, as was accepted by the respondent, significantly affects the weight to be attached to it. While the respondent in this statement expresses remorse for the conduct underlying his arrest on the substantive offence, in relation to this offence, he repeats that he made the decision based on fear for the safety of his family. That is not remorse, but an explanation which he puts forward for his conduct. He undertook this conduct knowing the potential consequences. He continues to refuse to purge his contempt despite knowing the significance of that factor in relation to the sentencing process.

70    I take into account that the respondent pleaded guilty to contempt, and informed the Court at an early stage of his intention to do so. That is a matter to which I give some weight as it indicates some acceptance of responsibility for his conduct, and also reflects a saving to the examiner and the Court in terms of resources. It may be said that a conviction was inevitable, but an early indication of a guilty plea still has some value: see GPY18 at [34]; Hannaford (No 2) at [82].

71    I take into account the personal circumstances of the respondent. He is currently [REDACTED] years of age and has been in a stable relationship with his wife for over five years, having married in [REDACTED]. They have a young child, born in [REDACTED]. His wife suffers generalised anxiety disorder, although I note that there is no medical evidence to support that assertion. The respondent submitted that he plays an active role in managing her symptoms. In particular, the respondent is relied upon in relation to care for their child in circumstances where other family members or others cannot provide support.

72    The respondent submitted that his wife and child are dependent on his income. The evidence reflects that the respondent’s wife works a nine day fortnight, although there is no evidence as to her earnings. The respondent is a [REDACTED], having completed his qualifications since his arrest. He is in full time employment with his employer being aware of his current situation.

73    The respondent has a past substance use history, involving alcohol, MDMA and cocaine. In [REDACTED]. Psychologist Megan Godbee opined that it now appears that this diagnosis is in partial remission although notes that the respondent would continue to benefit from counselling sessions to ensure prevention plans are in place and to provide ongoing guidance. The respondent has identified his problem regarding these substances and stated that he has decreased his use significantly particularly since his arrest regarding the substantive money offence.

74    While Megan Godbee reports that the respondent is struggling with feelings of stress being related to the ongoing Court process, the potential for a lengthy custodial sentence and his fear of revenge from people impacted by his offending, in particular how his concern as to how to protect his family, she opines that he does not have a mental health disorder. The stress the respondent refers to in his letter and to the doctors, in so far as it relates to the fear associated with going to gaol and the impact that would have on him and his family, is neither unusual nor surprising.

75    However, I note that it is well established that little, if any, weight should be given to statements made to third parties based on self-serving, and untested statements of an offender, particularly in circumstances where there is no direct evidence given by the respondent: Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323 at [817] per Bathurst CJ, Hoeben CJ at CL and Simpson J; Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] - [59] per Smart AJ and [79] per Spigelman CJ; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40] per Howie J (Levine and Hidden JJ agreeing); R v Hinchliffe [2013] NSWCCA 327 at [122] - [126] and [237] - [248] per Johnson J. This applies equally to an unsworn statement provided by an offender: DAB v R [2010] NSWCCA 275 at [21] per Simpson J. That said, the applicant did not challenge the contents of this material.

76    I note also that the respondent has a criminal history. His record includes convictions in Australia for robbery in company, drug possession and affray. In addition there is the substantive money laundering offence to which he has pleaded guilty and was recently sentenced. The respondent was sentenced for the offence contrary to s 400.9 of the Criminal Code to [REDACTED] imprisonment to be served by way of an Intensive Corrections Order (ICO) with [REDACTED] hours of community service.

77    Given the deliberate refusal to answer the questions in light of the opportunity to purge his contempt, which would mitigate his offence, coercion and deterrence must play an important feature in the sentence imposed. It necessarily follows that personal circumstances and mitigating factors specific to the respondent carry less weight: Hannaford (No 2) at [32] citing Allbeury (No 2).

78    The respondent’s submission is that he should be given an alternative sentence to full time custody, for to impose imprisonment would be to “circumvent the current sentence and undermine the rehabilitation achieved” by the respondent. The submission is premised on the basis that the contempt offence is connected to the substantive offence. Ultimately the respondent recognised, in the absence of the contempt being purged, and in light of the relevant previous sentencing decisions, it is likely that some period of imprisonment would be imposed. Counsel for the respondent submitted that I ought not impose an indeterminate term of imprisonment as it is clear that the respondent will not purge his contempt. He submitted that if I was minded to sentence the respondent to imprisonment it should be for a fixed term of imprisonment (as opposed to an indeterminate term), fixed at such a length so as not to undo his ICO. The respondent submitted that given the ICO requirements imposed on the respondent a sentence allowing him to complete the community service was more appropriate. It was submitted while he had been given [REDACTED]to complete his community service, he would need [REDACTED]to do so at one day a week (which apparently is the usual rate). On that basis, the respondent submitted a term of imprisonment of less than that, for example six months, would do justice to this particular matter and still enable him to complete his ICO.

79    The applicant submitted that relevant comparable decisions were Hannaford, Sage v ZZ (No 2) and DKH18, which suggest the appropriate order would be imprisonment until further order. As noted above, the applicant provided a summary of the cases it submitted were relevant as comparable cases.

80    In any decision relating to sentencing, an important consideration is consistency with the kinds of sentences imposed in comparable cases. Like cases should be treated in like manner: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [6] per Gleeson CJ; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ. The consistency sought is consistency in the application of relevant legal principles: The Queen v Pham at [28] per French CJ, Keane and Nettle JJ citing Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [49]. For the application of this principle to the offence of contempt see: Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 (Vaysman) at [51] per Gray J; Kazal at [113] – [118] per Besanko, Wigney and Bromwich JJ.

81    A sentence of imprisonment is appropriate in this case. A consideration of the relevant sentencing principles and like cases, reflects that is so. Nothing in relation to the respondent’s conduct, or his circumstances, takes this case out of the ordinary parameters for sentencing offences of this nature.

82    I have considered whether the sentence should be entirely suspended, and decided there is no proper basis to do so. As noted above, this was a deliberate choice made by the respondent. It is in a context where his fear is not based on any specific threats but is of a generalised nature, which carries little weight. There is no evidence that any relevant person knows of the examination. Importantly, given the nature of this offending, coercion and deterrence are dominant sentencing considerations which necessarily means that less weight is given to personal factors. The respondent’s plea that his rehabilitation ought not to be interrupted and that this offending related to that which he has been sentenced ignores the different nature of this offence, and the fact that the contempt charges are a stand-alone offence under the ACC Act. There is one matter which appears to be significant in cases where a lesser sentence than full time custody has been imposed, and that is that the contempt has been purged or, there is no evidence provided that the respondent has any opportunity to do so: see for example, XLVII at [50] and GYP18 at [33], neither of which apply here. The respondent is no doubt aware of the significance of this consideration but has chosen not to do so. In those circumstances, there is no proper basis to suspend the sentence of imprisonment I am about to impose.

83    That said, on the evidence the respondent had made his decision not to purge, regardless of the consequences, which might make it less likely that an indeterminate sentence would coerce him to answer the questions. As noted above, there was a delay in summonsing the respondent to give evidence, which for the reasons I have given, reflects on the urgency of obtaining the information and its potential significance. Given the nature of the events and specific information sought in this case, it is a factor that must be considered when determining the appropriateness of an indefinite sentence.

84    I have taken into account all the submissions put by the applicant and respondent.

85    Having taken into account all relevant matters I sentence you to a term of imprisonment for 8 months to be released after serving 4 months on the basis that the remainder of the sentence is suspended on the basis you are of good behaviour for a period of two years.

86    I order that there be liberty to apply if the respondent choses to purge his contempt before the expiry of 4 months. If that were to occur I would reconsider the period to be served, and subject to any further submissions, would be minded to suspend the remainder of the sentence.

Associate:

Dated:    22 November 2019