Federal Court of Australia

Sage v CFT22 (No 2) [2023] FCA 594

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 made on 6 September 2023 be varied so that it reads:

The respondent be imprisoned on and from 20 May 2023 until 27 July 2023.

2.    The sentence of imprisonment imposed on 6 September 2022 and varied by order 1 above be suspended on 29 June 2023.

3.    These reasons not be published beyond the parties until the respondent is released from prison.

4.    The applicant ascertain when the respondent has been released from prison and communicate that by email to the associate to Justice Bromwich, whereupon these reasons may be published beyond the parties.

5.    The additional materials advanced by the parties for the purpose of re-sentencing be confidential for the purposes of r 32(1)(b) of the Federal Court Rules 2011 (Cth), such that no third person is to have access to them without the leave of the Court.

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

REASONS FOR JUDGMENT

(Delivered ex tempore)

BROMWICH J:

1    On 6 September 2022, I made a declaration that the respondent was guilty of a charge of contempt of the Australian Crime Commission in that, on 4 April 2022, being a witness appearing on examination before an Examiner, he refused or failed to take either an affirmation or oath when required to do so under s 28 of the Australian Crime Commission Act 2002 (Cth), contrary to s 34A(a)(i) of that Act: Sage v CFT22 [2022] FCA 1028. Accompanying that declaration were, inter alia, orders:

(a)    that the respondent be imprisoned on and from 20 May 2023, being the day before he was eligible for parole on sentences for criminal offences previously imposed on 21 May 2021, until further order;

(b)    making provision for a warrant for the respondent’s committal to prison to be issued to give effect to the order for imprisonment;

(c)    making provision for the sentence to be varied if the respondent purged his contempt.

2    I should add that, although the term of imprisonment that commenced on 20 May 2023 was expressed to be until further order, that sentence was always going to end on 27 July 2023, because that is the date upon which the underlying investigation, pursuant to which the summons for examination was issued, expires.

3    I issued a warrant for committal on 3 May 2023, and on 20 May 2023 the respondent was taken into custody to serve his sentence for contempt, having been granted parole from the date he was eligible, being 21 May 2023. On 1 June 2023, the respondent purged his contempt, having foreshadowed a wish to do so via his solicitor on 24 March 2023, just over six months after the declaration was made on 6 September 2022.

4    Upon the purging actually having taken place on Thursday, 1 June 2023, the applicant promptly relisted the matter for today, the following Monday, 5 June 2023. The applicant has furnished an affidavit as to the purging, and supplementary submissions. Those submissions, which I accept, were to the effect that there remains no coercive purpose in the sentence imposed upon the respondent, but that there remained the considerations of punishment to give effect to retribution for the contempt and for deterrence.

5    The authorities relied upon by the applicant in supplementary submissions, with one addition, are as follows:

(a)    Anderson v XLVII [2015] FCA 19; 319 ALR 139 at [49]-[50], [56]-[59] and [62];

(b)    Wood v Staunton (No 5) (1996) 86 A  Crim R 183, especially at pp.185-187;

(c)    Prothonotary of the Supreme Court of New South Wales v A [2017] NSWSC 495 at [48]-[49], [51] and [53]-[54];

(d)    Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118; 94 NSWLR 777 at [48];

(e)    Lusty (Examiner) v DEZ22 [2022] FCA 1581 at [16];

(f)    Lusty (Examiner) v DER22 [2023] FCA 255 at [54]-[60]. 

6    The respondent did not have time to sign the affidavit that was prepared for him. I allowed that affidavit to be tendered and admitted into evidence, without objection, on condition that a sworn or affirmed copy was filed and served within 14 days. Senior counsel for the respondent also made submissions as to what should happen by way of variation to the sentence imposed on 6 September 2022. Senior counsel did not argue that the sentence being imposed to run from 20 May 2023 should not run to the last available date of 27 July 2023. However, he did argue that the suspension should take place immediately. The argument advanced in support of that outcome appeared to be that, since the respondent indicated a willingness to purge his contempt via his solicitor on 24 March 2023, he has had the risk of extending his time in custody past his parole date on 21 May 2023 ever since. Senior counsel submits, in effect, that this has been a form of punishment and specific deterrence, and, at least implicitly, the 17 day period of additional custody from 21 May to 5 June 2023 was sufficient to meet those considerations and also the consideration of general deterrence. No argument was advanced by senior counsel of any particular circumstance warranting such a high degree of leniency. The only issue the respondent faces from continued incarceration for what will be, on any view, a very limited period, are the generalised fears that he has always had. Those fears can largely be addressed by withholding publication of these reasons until after he has been released from prison.

7    The question remains as to what sentence should be imposed to reflect the aspects of punishment in the nature of retribution, and deterrence, coercion having no role to play since 1 June 2023, and probably not much of a role to play since 24 March 2023, before the contempt sentence commenced on 20 May 2023.

8    The authorities listed above, including the authorities referred to in those cases, make it clear that ordinarily there needs to be some sanction for contempt after purging to give effect to the need for punishment by way of retribution, and deterrence both specific and general, absent some particular circumstance warranting a departure from that outcome. No compelling reason has been advanced for any marked departure from that principle. That said, after two years in custody, an extension of time in prison must be taken to weigh heavily on any person in the position of the respondent. As is so common in any sentencing exercise, there are competing and to an extent irreconcilable considerations to be balanced.

9    In my view, balancing the competing considerations of principle, practicality and humanity, the appropriate sentence is that a fixed term of imprisonment be imposed expiring on 27 July 2023, to be suspended on Thursday, 29 June 2023, which should ensure that the respondent is released before the weekend.

10    The practical effect of this is that the overall term of imprisonment will be from 20 May 2023 until 27 July 2023, with a coercive component effectively applying for the 12 days from 20 May 2023 until 1 June 2023, and then the eight week period from 1 June 2023 until 27 July 2023 being reflective of deterrence and punishment by reason of retribution, of which four weeks will be in custody, and four weeks will be suspended. I made orders to that effect when delivering this judgment ex tempore.

Associate:

Dated:    7 June 2023