Federal Court of Australia

Lusty (Examiner) v ITT24 [2025] FCA 141

ORDERS

THE COURT DECLARES THAT:

1.    The respondent is guilty of contempt of the Australian Criminal Intelligence Commission in that on [redacted], when appearing as a witness at an examination before the applicant, the respondent refused to take an oath or affirmation 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.

2.    The respondent is guilty of contempt of the Australian Criminal Intelligence Commission in that on [redacted], when appearing as a witness at an examination before the applicant, the respondent refused or failed to answer a question that he was required to answer by the applicant, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth).

THE COURT ORDERS THAT:

3.    On the first charge of contempt, the respondent is sentenced to a term of imprisonment of 12 months, which sentence is to commence on [redacted].

4.    On the second charge of contempt, the respondent is sentenced to a term of imprisonment of 12 months, which sentence is to commence on [redacted].

5.    A warrant for the respondent's committal to prison be issued and with a copy of these Orders, be provided to the Darwin Correctional Centre, Northern Territory.

6.    There be liberty to apply if the respondent purges his contempt before 12 December 2025.

7.    The respondent is to pay the applicant's costs of the application, in the amount of $25,976.39.

8.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c):

(a)    the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court; and

(b)    within seven days the parties provide to the Associate to Vandongen J a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The respondent is charged with two charges of contempt of the Australian Criminal Intelligence Commission (ACIC). By the first of those charges, it is alleged that the respondent, when appearing as a witness at an examination before the applicant, refused to take an oath or affirmation when required to do so under s 28 of the Australian Crime Commission Act 2002 (Cth) (ACC Act), contrary to s 34A(a)(i) of that Act. By the second charge it is alleged that at the same examination, the respondent refused or failed to answer a question that the applicant required him to answer, contrary to s 34A(a)(ii) of the ACC Act.

2    On [redacted] the respondent formally admitted that he was guilty of both of those charges, having previously informed the applicant on 25 November 2024 that he would enter pleas of guilty.

The statutory framework

3    The ACIC is established by s 7 of the ACC Act. The ACIC is also known as the Australian Crime Commission, or the ACC: s 7(1A) of the ACC Act and reg 8 of the Australian Crime Commission Regulations 2018 (Cth). One of the ACIC's functions is to undertake 'special ACC operations': s 7A(b) of the ACC Act. A 'special ACC operation' is an operation that is authorised under s 7C(2) of the ACC Act, and which is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to, relevantly, certain 'serious and organised crime', but which may also involve undertaking investigations relating to such activity: see the definitions of 'special ACC operation' and 'intelligence operation' in s 4(1) of the ACC Act.

4    The phrase 'serious and organised crime' is defined in s 4(1) of the ACC Act to mean, relevantly, offences that involve two or more offenders and substantial planning and organisation, that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques, and that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind.

5    The ACIC consists of, amongst other people, examiners: s 7(2)(b). An examiner may conduct an examination under s 24A(1) of the ACC Act for the purposes of a special ACC operation. An examiner may conduct an examination for the purposes of a special ACC operation even if the witness may imminently be charged with, or has already been charged with, a criminal offence: s 24A(2), s 25A(6A)(a) and s 28(1)(d).

6    A witness may be summoned to appear at an examination to either or both give evidence and produce any documents or things: s 28(1). An examiner may, at an examination, take evidence on oath or affirmation, and for that purpose the examiner may require a person to either take an oath or make an affirmation in a form approved by the examiner: s 28(5).

7    An examination must be held in private, and an examiner may give directions as to the people who may be present during the examination: s 25A(3). Further, an examiner may give directions prohibiting or limiting the use or disclosure of 'examination material', and, relevantly, must do so if the failure to give such a direction might prejudice a person's safety: s 25A(9) and s 25A(9A)(a).

8    Pursuant to s 29A, an examiner issuing a summons to a witness to attend at an examination may be required to include a notation in the summons that disclosure of information about the summons, or any official matter connected with it, is prohibited. A person who is served with a summons that contains such a notation is prohibited from disclosing the existence of the summons or any information about it, except in certain circumstances, and a contravention of a notation carries with it a maximum penalty of imprisonment for 2 years or 120 penalty points: s 29B.

9    Pursuant to s 34A a person is in contempt of the ACIC if he or she, when appearing as a witness at an examination before an examiner, refuses or fails to take an oath or affirmation when required to do so under s 28, or refuses or fails to answer a question that he or she is required to answer by the examiner: s 34A.

10    In accordance with s 34B(1), if an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to the Federal Court for the person to be dealt with in relation to the contempt. Before making such an application, the examiner must inform the person that he or she proposes to make an application under s 34B(1): s 34B(2). Further, pursuant to s 34B(3) and s 34B(4):

(1)    the application must be accompanied by a certificate that states the grounds for making the application and the evidence in support of the application; and

(2)    a copy of that certificate must be given to the person before, or at the same time, the application is made.

11    A certificate under s 34B is prima facie evidence of the matters specified in it: s 34C(3).

12    If, after considering the matters specified in the certificate, after hearing or receiving any evidence or statements by or in support of the ACIC, and after hearing or receiving any evidence or statements by or in support of the person, the court finds that the person was in contempt of the ACIC, the person may be dealt with as if the acts or omissions involved constituted a contempt of the Federal Court: s 34B(5).

13    Proceedings in relation to applications made under s 34B are, subject to the ACC Act, to be instituted, carried on, heard and determined in accordance with the laws, including the Federal Court Rules 2011 (Cth) (FCR), that apply in relation to the punishment of a contempt in the Federal Court: s 34C(2) of the ACC Act.

14    The rules that apply to applications for contempt are set out in Part 42 of the FCR. Relevantly, an application alleging that a contempt has been committed must be accompanied by a statement of charge that specifies the contempt with sufficient particularity to allow the person charged to answer the charge, and by the affidavits on which the person making the charge intends to rely to prove the charge: r 42.12.

15    Rule 42.15 of the FCR also provides as follows:

42.15    Procedure on the hearing

(1)    The person charged may apply to the Court for an order:

(a)    that the hearing of the charge proceed by way of oral evidence; or

(b)    for the cross-examination of the deponents to the affidavits to be relied on by the person making the charge.

(2)    The person charged may file affidavits in answer to the charge.

(3)    The person charged may:

(a)    give oral evidence; and

(b)    call witnesses to give oral evidence without first filing any affidavit sworn by the person charged or by those witnesses.

The evidence

16    At the hearing of this matter, the respondent did not apply pursuant to r 42.15(1)(a) of the FCR for an order that the hearing proceed by way of oral evidence. Accordingly, the applicant relied on the following evidence:

(a)    Affidavit of a senior lawyer at the ACIC, sworn 10 October 2024.

(b)    Affidavit of a lawyer at the Australian Government Solicitor, affirmed 21 October 2024.

(c)    Affidavit of the National Manager Examinations at the ACIC, sworn 10 December 2024.

(d)    Affidavit of a further senior lawyer at the Australian Government Solicitor, affirmed 12 December 2024.

17    The respondent did not apply for an order pursuant to r 42.15(1)(b) for the cross-examination of the deponents of those affidavits. This meant that the evidence relied on by the applicant was unchallenged.

18    The applicant also relied on a copy of the respondent's criminal history prepared by the Northern Territory Police as at 16 January 2025.

19    The respondent did not give any evidence or call any witnesses to give oral evidence. In fact, the respondent did not adduce any evidence at all.

Objections to the evidence

20    The respondent did not object to the evidence relied on by the applicant.

21    Counsel for the respondent informed the court at the hearing of this matter that he was proceeding on the basis that the Evidence Act 1995 (Cth) did not apply as these proceedings relate to sentencing: s 4(2) of the Evidence Act. Counsel indicated that he intended making submissions about the weight that should be given to certain evidence relied on by the applicant. In the absence of any suggestion that the court should make a direction under s 4(2) or s 4(3) of the Evidence Act, I will proceed on the basis that the rules of evidence do not apply to these proceedings.

The facts

22    I find the following facts based on the unchallenged evidence relied on by the applicant.

23    The applicant is an examiner of the ACIC who was re-appointed under s 46B of the ACC Act on 9 December 2021.

24    On 17 May 2024, and pursuant to s 28 of the ACC Act, the applicant issued a summons to the respondent to appear before him to give evidence at an examination on [redacted]. The summons contained a notation made in accordance with s 29A of the ACC Act, which prohibited disclosure of the existence of the summons, except in defined circumstances.

25    The summons was issued for the purposes of a special ACC operation, namely the Drugs 2022 Special Operation, which had been authorised by the Special Australian Criminal Intelligence Operation Determination (Drugs) 2022, dated 12 December 2022 (Determination). The purposes of the Drugs 2022 Special Operation include collecting, correlating and analysing criminal information and intelligence about a wide range of drug offences that may have been, may be being, or may in the future be committed. The Drugs 2022 Special Operation is ongoing and will continue until the Determination ceases to remain in force on 12 December 2025 pursuant to s 7C(4G)(b)(i) of the ACC Act.

26    The examiner intended to require the respondent to answer questions in connection with the Drugs 2022 Special Operation, including questions the general nature of which were referred to on the face of the summons. It was specifically intended that the respondent would be asked questions about, but not limited to, his knowledge and involvement with the importation, manufacture, possession and trafficking of border-controlled drugs, as well as the identities, roles and locations of other persons involved in such conduct.

27    The respondent attended before the applicant in answer to the summons. Also in attendance was the respondent's legal representative. Before the examination commenced, the respondent met in private with his legal representative and also with the ACIC lawyer assigned to appear as counsel assisting at the examination.

28    At the start of the examination, counsel assisting advised the examiner, in the presence of the respondent, that she had explained to the respondent a draft confidentiality direction, the protections against self-incrimination that would be afforded to him, the requirement to be sworn and the potential for prosecution for contempt. Counsel also advised the examiner that the respondent nevertheless did 'not intend to comply with the process and the obligations under the [s]ummons'.

29    The examiner then asked the respondent's counsel whether she had explained the respondent's rights and obligations to her client, to which she responded, 'I have'.

30    The examiner then explained the examination process to the respondent in some detail, including his rights and obligations. Relevantly, the examiner told the respondent that if he refused to take an oath or an affirmation, or if he refused to answer questions, he would be committing a serious offence or a contempt. The examiner explained that the examination would be conducted in private and that his evidence would be treated as confidential. The examiner also explained that members of the ACIC staff were subject to strict secrecy obligations and that he intended to make a confidentiality direction to further restrict disclosure of his evidence. Importantly, the examiner told the respondent:

Another thing is that the ACC fully understands that many people who come to these Examinations do not want to be here and do not want to answer our questions, and this might be due to concerns about safety. So I want to assure you that nothing is more important to the ACC than protecting the safety of witnesses who appear at these Examinations. That is one of the reasons why the Examination is private and why your evidence will be treated as confidential. The ACC takes this issue seriously. The ACC will not disclose your evidence or even the mere fact that you've been here to any of your associates or anyone else who might wish to cause harm to you.

I'm not aware of any specific safety risks to you. If you do have any specific safety concerns please let us know so we can consider if we need to take any special precautions, but I want you to know that it's something we will be focussing on in any event. You have no reason at all to fear that the ACC will do anything to jeopardise your safety.

31    The examiner again told the respondent that he was obliged to answer all questions he was asked to answer, and that failure to do so would amount to a contempt, which was punishable by a potentially indefinite term of imprisonment. The examiner also took time to explain a confidentiality direction, which he then made pursuant to s 25A(9) of the ACC Act. By that direction, any evidence given at the examination, and the fact that the respondent gave evidence, was not to be publicly disclosed. Relevantly, the direction provided that any evidence given by the respondent was not to be disclosed to any person who was not part of the ACIC, except in a format that would not identify the respondent.

32    The following exchange then took place between the examiner and the respondent:

EXAMINER LUSTY: [ITT24], what I am proposing to do is require you to take an oath or affirmation to tell the truth and then answer relevant questions. Are you willing to do so?

ITT24: I'm in fear of my life.

EXAMINER LUSTY: Can you explain to us, do you want to say anything more about that?

ITT24: Just I don't feel comfortable answering questions.

EXAMINER LUSTY: Is there anything else you'd like to say to elaborate on those fears?

ITT24: With all due respect, I respect everyone here and everything like that, I just - yeah, just in fear of my life. I don't want to, yeah, answer any questions.

EXAMINER LUSTY: I take it from that it's your intention to refuse to answer any questions we ask you?

ITT24: Yep.

EXAMINER LUSTY: Look, what I'd like to do is ... I'd like to just take another ... Is there anything, firstly, is there anything we could say or do that may make you change your mind? You've heard what I've said about us. We will look after your safety. It is a private and confidential process. Is there anything else I can say or do to change your mind?

ITT24: No.

EXAMINER LUSTY: What I'd like to do is take just a short adjournment. I'd like to give you an opportunity to reconsider your position and to seek further advice from your lawyer and we'll see if you change your mind. If not, we'll have to come back here and I'll have to go through a process to still ask you questions but I'm hoping that you will change your mind?

ITT24: Yeah.

EXAMINER LUSTY: And if you or your lawyer wish to speak to Counsel Assisting about anything you may do so, and we're willing to do what we can to try and alleviate any fears you might have.

33    Upon resumption of the examination, counsel assisting advised the examiner that despite efforts to explore the safety concerns raised by the respondent, those safety concerns appeared to be very general in nature. Counsel also advised the examiner, in the respondent's presence, that the respondent had said to her that although he had not told anyone specifically about the fact he had been summoned to the ACIC, he had heard from people in the prison in which he was being held that there was interest being shown by the ACIC. Counsel further explained that this was the basis for the respondent's concern, although there had been no specific threat and there was nothing that the respondent could specifically point to as the source of his concerns.

34    After giving the respondent another chance to reconsider his position outside the examination, the following exchange took place:

EXAMINER LUSTY: Yes. [ITT24], you have made it clear that you will refuse to cooperate at this Examination but there is a formal process I have to go through in relation to this. It won't take too long. I'll start by requiring you to take an oath or affirmation to tell the truth. I have here a written copy of both an oath and an affirmation in terms approved by me in this written document. Could you please provide the witness with a copy of both. So there's an oath and an affirmation, and I will hereby require you to take either the oath or the affirmation by formally reading it out aloud. If you refuse or fail to do so you can just tell me that and then we can move on, but what I'm requiring you to do is read out one of those.

ITT24: (No response.)

EXAMINER LUSTY: Do you refuse to take an oath or affirmation?

ITT24: Yep

EXAMINER LUSTY: Yes?

ITT24: (Examinee nods.)

EXAMINER LUSTY: Is there anything further you'd like to say about that?

ITT24: No.

EXAMINER LUSTY: You're aware that doing [this] is an offence or a contempt?

ITT24: Yep.

EXAMINER LUSTY: Is there anything else you'd like to say just about your refusal to take an oath or affirmation?

ITT24: No.

…

EXAMINER LUSTY: What I'll have to do now is ask you some specific questions and for each one you will either have to answer the question or refuse or fail to do so. This is a necessary process we have to go through. It won't take too long.

So my first question I'm asking you is: Do you know anyone who has been involved in illegal drug trafficking and, if so, who are they?

ITT24: (No response).

EXAMINER LUSTY: Will you answer that question or do you refuse to answer the question?

ITT24: I refuse.

EXAMINER LUSTY: Yes. Look, I consider that question to be highly relevant to the ACC's special operation so I would like to formally require you to answer it again. Do you still refuse to answer?

ITT24: (Examinee nods.)

EXAMINER LUSTY: Can you just say yes or no?

ITT24: Yes.

EXAMINER LUSTY: Do you wish to say anything further to explain why you are refusing to answer it?

ITT24: No.

(emphasis added)

35    The respondent's refusal to be sworn, and his subsequent refusal to answer the examiner's question despite being required to do so, constitute the two charges of contempt the respondent has now formally admitted.

36    After the above exchange, the examiner then proceeded to ask the respondent further questions, because for a moment it appeared he may cooperate. However, it became clear during a further adjournment of the examination that the respondent's full cooperation would not be forthcoming.

37    After this adjournment, counsel assisting told the examiner what had occurred during the adjournment. Both the respondent and his legal representative told the examiner that counsel's summary of what had occurred during the adjournment accurately summed up the respondent's position. Based on counsel assisting's summary, the ACIC was clearly of the view that the respondent would have been able to provide information in relation to a number of areas of inquiry.

38    Although it appears the respondent may have been prepared to provide some general information, including confirming what he did not know, the sticking point from the respondent's perspective was that he was not prepared to provide information about the people he knew were involved in drug trafficking or the people he had been in communication with, in connection with that type of activity. As the respondent's position was that he was prepared to confirm what he did not know, but was not prepared to provide information about people involved in drug trafficking, I am satisfied beyond reasonable doubt that had he chosen to be sworn and to truthfully answer questions at the examination, he would have been able to provide the ACIC with potentially valuable information.

39    The examiner then gave the respondent one last chance to cooperate, informing him of the purpose of the relevant special operation, and of the ACIC's belief that he had valuable information. However, the respondent confirmed that he did not intend to change his mind.

40    The examiner then told the respondent that he had formed the opinion that he was in contempt of the ACIC, and that he proposed making an application to the Federal Court under s 34B of the ACC Act for the respondent to be dealt with accordingly.

41    As the examiner foreshadowed, such an application was subsequently filed in this court.

Applicable sentencing principles

42    There are no mandatory types of sentences prescribed for a contempt of the ACIC. There are also no minimum or maximum penalties. The various penalties that are available to this Court to punish for contempt were identified by Nicholson J in Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138] as follows: (a) to commit a contemnor to prison for an indefinite period of time; (b) to impose a fine for a wilful breach of an order or undertaking; (c) to impose a daily fine; (d) to order the sequestration of the assets of a contemnor; and (e) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt. This range of penalties was referred to with approval in Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277 at [55] (French, Emmett and Dowsett JJ).

43    The statutory context indicates that the power to conduct an examination under the ACC Act is an important tool that is available to the ACIC for it to obtain information necessary for the proper discharge of its functions: Sage v AYI23 [2023] FCA 1336 at [9] (Abraham J). One of the evident purposes of examinations under the ACC Act is to provide the ACIC with an efficient means by which to compel people, including people who would otherwise be unlikely to cooperate with law enforcement agencies, to provide information that is in their possession and relevant to the ACIC's functions. The effectiveness of the ACIC would be frustrated if witnesses properly summoned to give evidence at examinations simply refuse to cooperate. Accordingly, a contempt of the ACIC constituted by a refusal to be sworn or a refusal to answer questions will usually be regarded as a serious contempt: see Anderson v XLVII [2015] FCA 19 at [49] (White J).

44    It is established that the purposes of punishment for a contempt constituted by a refusal to answer questions in a court or commission of enquiry are retribution for the contempt, coercion of the person into answering the question(s), and the deterrence of others: Wood v Galea (1995) 79 A Crim R 567 at 571 (Hunt CJ); Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118 (King CJ, Zelling and Wells JJ agreeing); Hannaford (an Examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214; (2010) 205 A Crim R 366 at [39] (Dodd-Streeton J). Those same purposes apply in relation to a contempt constituted by a refusal to answer questions in an examination conducted by the ACIC.

45    In dealing with an appeal against sentences that were imposed for offences of knowingly giving false or misleading evidence in an examination conducted by the ACIC (then known only as the ACC), contrary to s 33(1) of the ACC Act, the Court of Appeal of the Supreme Court of Western Australia noted that in sentencing for such an offence, general deterrence is important:

Private examinations under the Act are an important tool to the intelligence gathering exercise necessary for the proper fulfilment of the ACC's role. It is important that those who refuse to answer questions or who falsely answer questions during an examination are adequately punished to reinforce the importance of compliance with the requirement to truthfully answer questions during such examinations. Not to do so would undermine the power of the Commission and would result in the relevant powers becoming 'a toothless paper tiger'. (Forsyth v The Queen [2015] WASCA 36 at [52] (Newnes and Mazza JJA)) (citations omitted)

46    Further, as Dodds-Streeton J observed in Hannaford at [59], 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 ACIC's purposes'. However, where a person has purged their contempt, or where it is no longer necessary for the ACIC to conduct any further examination of the contemnor, coercion will be inappropriate: see Sage and the authorities referred to by Abraham J at [22].

47    In sentencing for contempt of the ACIC, it is common to do so by reference to the various factors identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183. Those factors include: (a) the seriousness of the contempt; (b) whether the contemnor was aware of the consequence to themselves of being found to be in contempt; (c) the actual consequences of the contempt on the relevant trial or inquiry; (d) whether the contempt was committed in the context of serious crime; (e) the reason for the contempt; (f) whether the contemnor has received any benefit by indicating an intention to give evidence; (g) whether there has been any apology or public expression of contrition; (h) the character and antecedents of the contemnor; (i) the need for general and personal deterrence; and (j) the need for denunciation of the contempt: see Sage and the authorities referred to at [24]. While those matters are generally considered to be a useful guide to the factors and circumstances that are usually relevant to the exercise of the sentencing discretion to punish for contempt, they are not exhaustive, nor are they a set of considerations that have statutory force. In that regard, each case must be decided having regard to its own facts and circumstances.

Sentence

48    I find the respondent in contempt of the ACIC by refusing to take an oath or affirmation, and separately by refusing or failing to answer a question put to him by the applicant, when he was required to do so.

49    The respondent has committed two serious contempts of the ACIC. The immediate consequences of the respondent's attitude of refusing to cooperate is that the ACIC has been deprived of the opportunity of exploring with the respondent whether he had any information in his possession about people involved in drug trafficking. However, the applicant submits that the respondent's contempt has had significant adverse consequences for the ACIC in seeking to progress the Drugs 2022 Special Operation. In support of that submission, reliance is placed on certain paragraphs in the affidavit of the ACIC's National Manager Examinations, and on things said by the examiner at the examination.

50    On the other hand, the respondent submits that I should not find that his contempts have had significant adverse effects on the ACIC in seeking to progress the Drugs 2022 Special Operation. The respondent submits that this is because there is an insufficient evidentiary basis from which to draw that conclusion. In that regard, the respondent submits that the evidence in support of the applicant's submission raises no higher than conclusionary opinions expressed in the affidavit sworn by the National Manager Examinations.

51    There may be good operational reasons why the applicant has not relied on any detailed evidence to support his submission concerning the effects the respondent's contempts have had on the Drugs 2022 Special Operation. For example, as counsel for the applicant said in her oral submissions, providing such detailed evidence may only serve to give the respondent notice of the ACIC's inquiries and thereby undermine the effectiveness of any examination were the respondent to purge his contempts.

52    However, the only evidence in support of the applicant's submissions about the consequences of the respondent's contempt on the ACIC are the opinions expressed by the National Manager Examinations in his affidavit. In the absence of evidence that would permit me to understand the basis for those opinions, I am not able to make a finding that the respondent's contempts have had significant adverse effects on the ACIC in seeking to progress the Drugs 2022 Special Operation.

53    I do find, however, that the respondent's failure to be sworn, and his refusal or failure to answer questions, hindered the examination. The respondent's uncooperative behaviour thwarted the ACIC's ability to obtain through the use of its examination powers, whatever information the respondent had in his possession about certain people involved in drug trafficking, which information had at least the potential to have contributed to the objectives of the Drugs 2022 Special Operation.

54    I am of the view that the only reasonable inference is that the respondent was in possession of information that would lead to the identification of people involved in drug trafficking. As I have already observed, counsel assisting told the examiner that she understood that while the respondent would be prepared to provide 'some general details, including confirming when he did not know something and confirming some broad activities', he was not willing to 'provide details of people involved [in certain incidents of drug trafficking] and people he was communicating with'. The only rational inference to be drawn from the respondent's stance at the examination is that he did know the identities of people involved in drug trafficking.

55    The respondent's contempts were deliberate and pre-planned. The respondent had decided sometime before the examination commenced that he was going to refuse to take an oath, and that he was also going to refuse to answer any questions. In short, the respondent deliberately refused to cooperate with the examination despite his legal obligations to be sworn and to answer questions, notwithstanding the protections that would be afforded to him and despite the consequences of him refusing to cooperate.

56    The respondent accepts that he was, in a general sense, aware of the consequences of his refusal to be sworn and his refusal to answer the question put to him by the examiner. However, he submits that it is not clear whether he appreciated that by refusing to be sworn, and then refusing to answer the question, he became liable to face two separate charges of contempt. It is submitted that had the respondent been made aware that he made be charged twice 'he may well have taken an oath or affirmation'.

57    There is no direct evidence that the respondent did not appreciate that he was liable to be charged with two charges of contempt, or any evidence that he would have agreed to be sworn had he known that fact. Instead, the evidence establishes that the respondent was represented by a lawyer when he appeared at the examination. That lawyer told the examiner that she had explained to the respondent his rights and obligations. Counsel assisting also told the examiner that she had 'explained to [the respondent] at some length the availability for prosecution or contempt for his failure to comply'. The examiner also told the respondent that if he 'refuse[d] to take an oath or affirmation, or if [he refused] to answer [the] questions, [he] will be committing a serious criminal offence or a contempt'. In all the circumstances, I do not accept that the respondent did not appreciate that he was liable to be charged with two separate charges of contempt. In any event, the submission that he may not have refused to be sworn had he had that appreciation is speculative.

58    The respondent submits that he refused to participate in the examination because he held fears for his safety, and not because he wished to frustrate the ACIC or to protect someone from criminal liability.

59    The only evidence that the respondent feared for his life are his unsworn and untested statements of what he and his counsel said at the examination, and also what the respondent said to counsel assisting outside the examination, which counsel assisting then reported back to the examiner. The high point of that evidence is what counsel assisting told the examiner, with the respondent's apparent approval, which was that the basis for the respondent's concern was that he had heard some discussion at the prison where he was being held 'in relation to the ACC interest'. However, counsel assisting also told the examiner, again with the respondent's apparent approval, that the respondent had not received any specific threats and that he had been unable to identify any specific person or persons causing him to be concerned for his safety.

60    The respondent submits that the absence of any evidence of a specific threat is not a reason to doubt that his expressed fear was genuine. The respondent argues that it may be inferred that his fear was based on a broader knowledge of the consequences of being seen to cooperate with law enforcement agencies and the risk that the safeguards offered by the ACIC might prove to be ineffective.

61    I accept that the respondent was genuinely fearful that other prisoners in the same custodial setting where he is being held may have inferred that he was assisting law enforcement agencies, particularly if they learnt that he had appeared at an ACIC examination. There is nothing to indicate that anyone at the examination took issue with the genuineness of the respondent's statements in that regard.

62    It was submitted that it also should be inferred that the respondent was fearful of retribution from the people he was being asked to provide information to the ACIC about. Although the respondent did not make specific mention of those fears when he appeared at the examination, that he held such generalised fears may be accepted given the nature of the information he was being asked to provide.

63    However, any fears the respondent genuinely held cannot fully explain why he refused to be sworn. Having already attended at the examination, it is difficult to see why the respondent would then have genuinely believed that his life would be further endangered if he took the additional step of taking an oath or an affirmation. There is also no evidence that there was a realistic risk, or that the respondent genuinely believed there was a realistic risk, that the various safeguards offered by the ACIC, including the notification on the summons that was served on the respondent, the secrecy obligations imposed on ACIC staff and the confidentiality direction that was given by the examiner, might prove to be ineffective.

64    In any event, it is well-established that fear of retribution for providing information to the ACIC at an examination will rarely be given mitigatory weight: Sage at [33]. That is unsurprising. The legislative scheme is concerned with facilitating the gathering of intelligence in relation to 'serious and organised crime' (as defined in s 4 of the ACC Act). In those circumstances, the effectiveness of the ACC Act, and the special operations authorised under that Act, would be severely undermined if significant mitigatory weight were to be given to bare assertions of fear of retribution as a reason for refusing to be sworn or to answer questions at an examination.

65    I accept that during the examination the respondent did express a willingness to answer some questions. As counsel assisting the ACIC put it, the respondent was 'willing to provide some general details, including confirming when he did not know something and confirming some broad activities but not the detail necessarily in respect of those [activities]'. However, I do not ascribe any significant mitigatory weight to this factor. The respondent's conditional willingness to cooperate with the ACIC in this way does not decrease his culpability for refusing to be sworn. Further, the respondent was obliged to tell the whole truth in answer to questions put to him on behalf of the examiner, not to just give part answers to particular questions he felt comfortable answering.

66    The respondent did not formally admit his contempts until the hearing of this matter on [redacted]. However, approximately one month after the originating application was served on his legal representative, the respondent advised the applicant that he intended pleading guilty. In those circumstances, I accept that the respondent's pleas have utilitarian value. I also accept that the respondent has, by those pleas, demonstrated a willingness to facilitate the course of justice, that he has accepted responsibility for his actions and that the respondent's pleas are therefore mitigating. I am not, however, prepared to infer that the respondent's early indication of an intention to plead guilty, or his acceptance at the hearing of this matter that he had been in contempt of the ACIC as alleged, establishes that he is remorseful.

67    As the Court of Appeal of the Supreme Court of Western Australia recently observed in The State of Western Australia v Rayapen [2023] WASCA 55 at [141], remorse is 'the genuine regret for the wrong itself, penitence and contrition for that wrong and a desire to atone' (original emphasis). There is no evidence that the respondent feels any genuine regret. His failure to purge his contempts stands in the way of a conclusion that he has any desire to atone. In the circumstances of this case, and where pleas of guilty were inevitable, I do not find that the respondent is remorseful.

68    When the respondent refused to be sworn, he told the examiner that he respected everyone who was at the examination. It is submitted on behalf of the respondent that this is evidence of contrition. However, I do not think it goes that far. While the evidence shows that the respondent politely and respectfully refused to cooperate in the examination, it does not evince remorse or contrition.

69    The applicant submits that there is still a realistic possibility that the respondent may choose to purge his contempts, and accordingly, the imposition of a sentence that provides an incentive for the contemnor to purge the contempt is a relevant sentencing factor. However, after steadfastly refusing to cooperate with the ACIC at the examination and then failing to purge his contempts over the last nine months, despite being provided with opportunities to do so, the respondent has provided no indication he might purge his contempts. In those circumstances there is a significantly reduced, although not entirely eliminated, need to impose a sentence that has a coercive effect on the respondent.

70    The respondent has chosen not to put any evidence before the Court about his personal circumstances or his prior character. The applicant has, however, adduced evidence of the respondent's criminal history. The applicant accepts that to the extent that the respondent has prior convictions as a child, those convictions should not be taken into account for any purposes. I do not take them into account in any way. However, the applicant submits that the respondent's adult criminal history evidences a pattern of 'contemptuous behaviour', which is said to demonstrate that there is a heightened need for personal deterrence.

71    The respondent submits that it is well-established that only previous convictions for contempt, or offences of a similar nature, may be taken into account when sentencing for contempt. In that regard, the respondent cites Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586 at [101]-[110] (McKerracher J); Ferguson v Dallow (No 5) [2021] FCA 698 at [20] (O'Callaghan J); and Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 at [9] (Rees J).

72    It is not clear to me why a person's criminal history should be regarded as being mandatorily irrelevant to the determination of an appropriate sentence for contempt. It would be surprising if, for example, a contemnor would not be able to rely on the absence of a criminal record as evidence of good character, something that would ordinarily be expected to amount to a mitigating factor.

73    However, it is unnecessary for me to say anything further about that issue. This is because I am satisfied that the respondent does have a history of committing offences that are of a broadly similar nature to a contempt of the ACIC committed by refusing to be sworn and by refusing to answer questions. In that regard, the respondent's criminal history demonstrates that between 2013 and 2021 he repeatedly engaged in conduct that contravened domestic violence orders. During the same period, he also breached bail and suspended sentence orders. The two admitted contempts of the ACIC that were committed by the respondent on [redacted] constitute a further occasion on which the respondent has disobeyed lawful orders. Accordingly, I am of the view there is a need to impose a sentence on the respondent that deters him from engaging in the same or similar conduct.

74    I do not take into account the fact that the respondent has been charged with two very serious criminal offences. The respondent is yet to be tried and he is therefore presumed innocent of those offences. I do note, however, that the respondent is currently in custody on remand awaiting trial. Based on the information that is before the court, if the respondent were to be convicted of either or both of those offences it is inevitable that he will be sentenced to a lengthy term of imprisonment.

75    Section 63(5) of the Sentencing Act 1995 (NT) provides that:

Subject to section 45(5), if an offender has been in custody on account of the offender's arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment must be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence.

76    Accordingly, if the respondent is eventually found guilty and sentenced for the serious offences that he has been charged with, it will be open to the sentencing court to fix the commencement date of any sentence by reference to the time the respondent has spent in custody on remand. As the power to backdate the commencement date is discretionary, it will be a matter for the sentencing court to decide whether to exclude from its calculations any time the respondent is required to serve for his contempt of the ACIC.

77    Both parties submitted that as the Drugs 2022 Special Operation will come to an end on 12 December 2025, it is appropriate to impose a fixed term of imprisonment. I agree.

78    In circumstances in which the respondent has admitted two distinct contempts of the ACIC, and in the absence of any statutory or other basis for imposing a global penalty, I am required to impose separate and distinct penalties for each of the admitted contempts. However, I am also required to arrive at a total effective sentence that bears a proper relationship to the overall conduct involved in both of the contempts: see, for example, Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134; (2014) 241 IR 288 (Cavanough J); and Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 (Tracey J).

79    The parties have referred me to previous cases in which sentences have been imposed for contempts of the ACIC. I have taken those cases into account as consistency of sentencing for such offences is an important consideration: Anderson v BYF19 [2019] FCA 1959 at [80] (Abraham J). However, sentences imposed in other cases do not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a reference point. It must also be borne in mind that there is no single correct sentence: JFB v The State of Western Australia [2024] WASCA 41 at [55]-[58] (Quinlan CJ, Mazza and Vandongen JJA); and Lusty (Examiner) v DEZ22 (No 2) [2023] FCA 858 at [29] (Wigney J).

80    Taking into account all of the relevant circumstances, I am of the view that the only appropriate sentence to be imposed on the respondent is a term of imprisonment that is to be immediately served. Counsel for the respondent properly accepted in his written submissions that a custodial sentence is an appropriate sentence.

81    The contempts committed by the respondent were serious. There is a need to impose sentences that punish the respondent, that provide a measure of personal deterrence, and that send the message to others who may be minded to also refuse to cooperate with examinations conducted by the ACIC by refusing to be sworn and to answer questions, that such conduct will not be tolerated.

82    In relation to the first charge of contempt, I sentence the respondent to a term of imprisonment of 12 months. In relation to the second charge of contempt, I sentence the respondent to a term of imprisonment of 12 months.

83    Both contempts reflect the fact that the respondent essentially refused to cooperate with the examination process and can therefore properly be regarded as part of the same transaction. In my view, a total effective sentence of 12 months bears a proper relationship to the overall conduct involved in both of the contempts. Accordingly, I will order that both sentences are to commence today, [redacted].

84    I have found that there is a reduced need to impose a sentence on the respondent that has a coercive effect. Nevertheless, I consider that it should be left open to the respondent to decide to purge his contempts. Accordingly, I will grant liberty to apply in the event that the respondent decides to purge his contempts before 12 December 2025.

Associate:

Dated:    [redacted]