Federal Court of Australia

Purcell (Examiner) v LAZ24 [2025] FCA 413

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 answer six questions 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:

1.    The Respondent is sentenced to a term of imprisonment of 9 months, to commence on [REDACTED] and end on [REDACTED].

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

3.    There be liberty to apply, in the event that the Respondent purges his contempt before 12 December 2025.

4.    The Respondent is to pay the Applicant’s costs of the application to be agreed or assessed.

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

(a)    These unredacted reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of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

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

6.    Order 5 of the orders of Justice Thawley made on 18 December 2024 be varied to allow the respondent’s family who are present in the courtroom to attend the hearing on [REDACTED].

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

Note: On [REDACTED], Order 4 was amended to substitute “costs” with “costs of the application” and Order 6 was amended to substitute “to attend the hearing” with [REDACTED] pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Respondent (LAZ24) has pleaded guilty to the offence of contempt of the Australian Criminal Intelligence Commission (ACIC) committed on [REDACTED] by his refusal during a compulsory examination conducted under the Australian Crime Commission Act 2002 (Cth) (ACC Act) to answer six questions that he was required to answer.

2    The Applicant, an examiner appointed under s 46B of the ACC Act, seeks a declaration that LAZ24 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    At the hearing on [REDACTED], LAZ24 pleaded guilty to the contempt constituted by his failure to answer the six questions particularised in the statement of charge. The issue in these proceedings is what orders should be made to punish the contempt.

4    For the reasons given below, the Court makes a declaration that LAZ24 is guilty of contempt of the ACIC, and sentences him to a term of imprisonment of 9 months, to begin immediately.

5    Evidence: The Applicant relies on the following evidence:

    Affidavit of [REDACTED] affirmed on 28 November 2024;

    Affidavit of Katy Eliza Milne affirmed on 4 March 2025;

    Confidential affidavit of Jason Leigh Halls sworn on 5 March 2025;

6    LAZ24 relies on a psychiatric report of Dr Olav Nielssen dated 9 April 2025, together with other documents tendered at the hearing.

statutory scheme

7    Special ACC operation: The ACIC’s functions include undertaking special ACC operations (ACC Act s 7A(b)). A “special ACC operation” is defined in s 4(1) to mean an intelligence operation that the ACC Board has authorised to occur under s 7C(2).

8    Serious Financial Crime Determination: The examination in this matter was for the purposes of a special ACC operation being undertaken by the ACIC, under the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (2022 Determination).

    The 2022 Determination authorises an intelligence operation to occur relating to the specified financial offences that may have been, may be being, or may in future be, committed. The primary purpose of the operation is to collect, correlate and analyse criminal information and intelligence about these offences. The “specified financial offences” include offences against the Criminal Code (as defined in the Criminal Code Act 1995 (Cth)) relating to fraudulent conduct, money laundering, and financial information offences, and these offences must (subject to two exceptions) be punishable by imprisonment for three years or more.

    The 2022 Determination expires at the end of 3 years after it is made (ACC Act s 7C(4G)(b)); that is, on 12 December 2025.

9    Examiner’s powers: An examiner appointed under Div 3 of Pt 2 of the ACC Act may conduct an examination for the purposes of a special ACC operation (ACC Act s 24A(1)). An examiner may summon a person to appear before the examiner to give evidence and produce such documents or other things referred to in the summons (s 28). It is an offence for persons summonsed to appear as witnesses at an examination (among other things) to refuse or fail to answer a question that they are required by the examiner to answer (s 30(2)(b)).

10    Contempt of the ACIC: Persons appearing as witnesses 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 an examiner (ACC Act 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)).

11    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 (ACC Act s 34B(5)). This Court’s power to punish for contempt is conferred by s 31 of the Federal Court of Australia Act 1976 (Cth), by reference to the powers and authority of the High Court to deal with contempts of that Court. The procedure for punishment of contempts of this Court is set out in Pt 42 of the Federal Court Rules 2011 (Cth).

factual background

12    Summons ([REDACTED] 2023): On [REDACTED] 2023, the Applicant issued a summons to LAZ24 under s 28 to appear before an examiner to give evidence for the purposes of the special ACC operation authorised by the 2022 Determination. The summons stated that LAZ24 would be questioned about: dealing with money and other property that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs; the use of encrypted communication devices and messaging applications to facilitate such activities; and the identities of other persons and entities (in Australia and overseas) involved in such activities and the nature and extent of their involvement.

13    First examination ([REDACTED] 2024): On [REDACTED] 2024, LAZ24 attended an examination at the ACIC, beginning at 11.19 am. He was represented by a lawyer. The examiner stated that the examination would be conducted in private, and that the evidence given by LAZ24 would be treated as confidential. The examiner stated that he had summonsed LAZ24 because the examiner believed that LAZ24 could provide information that was relevant to a special operation being undertaken by the ACIC, especially about the activities of other people.

14    LAZ24 raised concerns about answering questions, stating that he feared for his and his family’s safety. The examiner briefly adjourned the examination to enable LAZ24 to take legal advice. The examination resumed for a period, but it became apparent that the examination could not be concluded on that day, in part because LAZ24’s lawyer needed to be excused. The examiner stated that he would bring LAZ24 back at a later time, and stated that it was important that he talk to his lawyer in the meantime. The examiner made a confidentiality direction under s 25A(9) of the ACC Act restricting the persons to whom examination material could be disclosed and the purposes for which it could be used. The examination was adjourned at 1.19 pm, part heard.

15    Second examination ([REDACTED] 2024): On [REDACTED] 2024, LAZ24 attended a second examination at the ACIC. He was represented by the same lawyer. At the beginning of the examination, his lawyer applied for the proceedings to be adjourned, because LAZ24 stated that he was not “feeling mentally right”. The examiner refused that application, noting that there was no evidence before the examiner of any upcoming appointments LAZ24 had with treating doctors, and that the application had been made without notice to the counsel assisting the examiner.

16    LAZ24 again raised concerns about answering questions. The examiner adjourned briefly, to allow LAZ24’s lawyer to advise him of his obligations to answer questions under the ACC Act. After the resumption, LAZ24 answered some questions, but then refused to answer the first of the questions that are the subject of the charge.

17    First question: The first question related to whether LAZ24 was aware of anyone who had an encrypted device. The following exchange occurred:

COUNSEL ASSISTING: … I am interested in instances where you think someone might have had an encrypted device?

LAZ24: No, I can't answer that question.

COUNSEL ASSISTING: Why?

LAZ24: I refuse to answer for my safety and – for my safety. And as I said, I can't answer it because I don’t – why should I – I can't tell you something that I’m going to lie about, and I can't tell you something I don’t know about.

COUNSEL ASSISTING: I appreciate that. And if you don’t know then that’s something different. But not wanting to answer for fear of your safety, that’s a separate issue though.

LAZ24: Well, that’s how I – well, as I said at the start, I do fear for my safety in a bad way, and I will not answer that question for fear of my safety and my family’s safety.

COUNSEL ASSISTING: And just to be clear, the question was whether there is anyone that you think may have had an encrypted device before?

LAZ24: Yes, I know that you asked me that question, and that is my answer to you, what I've just told you.

COUNSEL ASSISTING: And that is?

LAZ24: That I fear for my life and my safety, and the safety of my family.

(emphasis added) (pseudonym inserted)

18    The examiner then warned LAZ24 that failing or refusing to answer questions at the examination was a criminal offence which was punishable by imprisonment for up to five years or a contempt which was punishable for a potentially indefinite period. The examiner informed LAZ24 of the ACIC’s belief that LAZ24 could provide information that was highly relevant to the special operation it was conducting, and that his refusal to answer questions would prejudice the special operation.

19    After some discussion of the examiner’s role, the following exchange occurred:

EXAMINER PURCELL: You said you refused to answer that question [about encrypted devices] on the grounds that you fear for your life and your safety?

LAZ24: Yes, that’s right.

EXAMINER PURCELL: Now, I consider that question to be highly relevant to the Australian Crime Commission special operation, so I require you to answer it.

LAZ24: Okay.

EXAMINER PURCELL: If you don’t answer that question you will be in contempt of the Commission. So I’m telling you now that I require you to answer that question, please?

LAZ24: Well, I will not answer any questions, as I said. I know I’m here for a purpose, for your purposes.

…

LAZ24: And there's no disrespect to you and you, Your Honour, or you, Madam, I just understand my point of view and where I’m coming from. And I hope we just --

EXAMINER PURCELL: So are you formally telling me that you refuse to answer that question?

LAZ24: Yes.

(emphasis added) (pseudonym inserted)

20    The bolded passages in the passages quoted above are the statements relied on in the statement of charge in relation to the first question.

21    Other questions: The examination continued for some time, until LAZ24 was asked about whether he had had an encrypted device. He then refused to answer a series of questions, which are the second to sixth questions set out in the statement of charge. Those questions concerned: whether LAZ24 had an encrypted device when he was on parole (the second question); LAZ24’s knowledge of [REDACTED] [REDACTED] (the third question), his family’s connections with [REDACTED] [REDACTED] [REDACTED] [REDACTED] (the fourth question); whether anyone had pressured LAZ24 to use an encrypted device (the fifth question); and what involvement LAZ24’s family had with money laundering activity (the sixth question).

22    The examiner then informed LAZ24 that the examiner was of the opinion that LAZ24 was in contempt of the ACIC, and that the examiner proposed to make an application to this Court under s 34B of the ACC Act for LAZ24 to be dealt with in relation to that contempt. The examiner stated that, if LAZ24 changed his mind and decided that he was willing to truthfully answer questions, he should contact the examiner as soon as possible. The examiner varied the confidentiality direction, to enable information to be disclosed to the parties to be involved in any contempt proceedings, and to allow disclosure to any psychologist that LAZ24 may wish to engage.

Principles for sentencing

23    The following is principally taken from the decision of Abraham J in Sage v AYI23 [2023] FCA 1336 at [20]-[25], supplemented by the decisions of Thawley J in Australian Crime Commission v DTO21 [2022] FCA 288 at [29]-[37] (appeal dismissed in DTO21 v Australian Crime Commission [2022] FCAFC 190; (2022) 295 FCR 194 (DTO21 FC)), and Vandongen J in Lusty (Examiner) v ITT24 [2025] FCA 141 at [42]-[47].

24    Importance of ACIC examinations: The examination of persons by examiners, such as the Applicant in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: AYI23 at [9]; ITT24 at [43]. The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions: 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. The 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: AYI23 at [21]; DTO21 at [29]-[31]; ITT24 at [43].

25    A contempt constituted by a refusal to answer questions in a commission of inquiry is usually to be regarded as a serious contempt: AYI23 at [22]; ITT24 at [43]; Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 at [57] (Dodds-Streeton J). A contempt of an administrative inquiry is not treated any less seriously than a contempt of a court: see Wood v Galea (1997) 92 A Crim R 287 at 290 (Hunt CJ at CL).

26    Purposes of punishment: The purposes of punishment for a contempt constituted by a refusal to answer questions in a commission of inquiry such as an ACIC compulsory examination are retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: AYI23 at [22]; DTO21 FC at [42]; ITT24 at [44]. LAZ24 relied on the reasoning of Wigney J in DTO21 FC at [16]-[18] where his Honour doubted whether coercion is relevant to a determinate sentence. However, that was a minority view. Bromwich and Abraham JJ held in DTO21 FC at [52] that the coercive effect of the continued detention of the person (under what was by then a fixed sentence) was a “relevant and indeed weighty consideration”. Further, contrary to LAZ24’s submission, I consider that the coercive effect of a determinate sentence derives not simply from the liberty to apply for the order to be revisited in the event that a prisoner chooses to purge his or her contempt, but also from the length of the sentence imposed. The sentence must be sufficiently lengthy to have the coercive effect.

27    Form of punishment: There is no prescribed or maximum penalty for a contempt of this nature. There are a range of penalties available, being (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: AYI23 at [25]; DTO21 at [36]; ITT24 at [42].

28    Because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate. However, indeterminate detention 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: DTO21 at [37]; AYI23 at [23]. In this case, the Applicant does not seek an order for indeterminate imprisonment.

29    LAZ24 contended that s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Sentencing Act) applied, and therefore the Court could not impose a sentence of imprisonment unless satisfied, as a threshold matter, that no penalty other than imprisonment is appropriate, after considering all possible alternatives. The NSW Sentencing Act does not apply to a federal proceeding of its own force, and would only apply if picked up by s 68 of the Judiciary Act 1903 (Cth) or similar provision. There is a serious question whether s 5(1) is picked up, but it is not necessary to resolve that question now. Section 17A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) is to very similar effect (albeit in relation to a “federal offence”), and there is a general principle of sentencing that imprisonment is a punishment of last resort: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [14] (Gleeson CJ and Hayne J), [54] (Kirby J).

30    LAZ24 also submitted that, if a term of imprisonment were to be imposed, it was necessary for the Court to consider: first, whether a sentence of imprisonment is required, including the appropriate term or length of imprisonment; and second, whether that term of imprisonment should be suspended, either wholly or in part. LAZ24 relied on Dinsdale at [84]-[87], where Kirby J held that the decision whether to suspend a sentence must have regard to all the circumstances, not just the prospect of rehabilitation. In this case, a key matter tending against suspending any sentence of imprisonment is that one function of any sentence imposed is to encourage LAZ24 to purge his contempt. I return to that matter below.

31    Relevant factors: The (non-exhaustive) considerations identified by Dunford J in Wood v Staunton (No 5) [1995] NSWSC 61; (1996) 86 A Crim R 183 at 185 are treated as a convenient guide when sentencing for criminal contempt under s 34B of the ACC Act: AYI23 at [24]; DTO21 at [33]; ITT24 at [47]. Those factors are: (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.

CONSIDERATION

32    It is convenient to consider the applicable factors from Staunton (set out above) in turn.

33    Seriousness of contempt: A contempt of the ACIC, as with any commission of inquiry, is usually regarded as serious: see [25] above. A refusal to answer questions undercuts the effectiveness of the statutory scheme which authorises those compulsory examinations: Lusty (Examiner) v CRA20 [2020] FCA 1737 at [41] (Abraham J).

34    Here, the contempt is both deliberate, and pre-planned. LAZ24 indicated at the first examination that he would not be answering questions, and he then refused to answer questions at the second examination some weeks later, after being given an opportunity at both examinations to receive advice from his lawyer as to his obligations to answer questions: see [14]-[16] above. Further, this contempt was committed in the context of an investigation into serious criminal offences, as is apparent from the face of the 2022 Determination, including the definition of “Specified Financial Offence”.

35    The seriousness of the contempt is not reduced by the fact that LAZ24 answered some questions at the second examination. That shows only that LAZ24 acted in accordance with his legal obligation to answer questions in that respect: DTO21 at [39]; see also ITT24 at [65]. For the same reason, the fact that LAZ24 took an oath (unlike the position in some other cases) does not reduce the seriousness of the contempt to any significant extent.

36    Nor do I accept a submission by LAZ24 that the seriousness of his contempt is tempered by the fact that (it is said) the questions asked of him were very broad, and could not have been expected to be only within his knowledge (such as whether there was anyone that he thought may have had an encrypted device). Those matters could potentially provide reason to object to the form of a question. And LAZ24 (who was legally represented at each examination) did at one point state that he didn’t know what was being put to him, and the question was then made more explicit. But in the case of the six questions the subject of the charge, LAZ24 refused to engage with the question at all, and his reasons for refusing to answer (discussed below) did not suggest that he was unable to understand what was being asked, or that the question raised matters outside his knowledge, or anything of that sort: see [17] above. Indeed, towards the beginning of the second examination, LAZ24 stated “I understand [the questions that were being put to him], but I wish not to answer them”.

37    I therefore reject the submission of LAZ24 that he was denied procedural fairness in the way that the questions were put, and that this reduces the seriousness of the contempt. As the Applicant submits, the questions that are the subject of the charge were “gateway” questions, and LAZ24’s refusal to respond to those questions meant that there was no point going on to put more specific questions on the same topics. It is therefore immaterial that, in other cases, the questions that an examinee has refused to answer have been more specific. I would also reject suggestions by LAZ24 that, at other points in the examination, he had actually provided an answer to some of the questions that were the subject of the charge (by stating he did not know). For example, a general statement at a much earlier point in the second examination that LAZ24 did not know anyone involved in money laundering cannot, in context, be taken as response to a later question (which LAZ24 refused to answer) about his family’s involvement in money laundering. As set out below, LAZ24 was given several opportunities, at the first and second examinations, to take legal advice on the consequences of not answering questions, and he was warned on several occasions of the risk that a refusal to answer would lead to him being charged with contempt.

38    LAZ24’s awareness of consequences: LAZ24 must have been aware of the consequences of his contempt. Focusing on the second examination, the examiner warned LAZ24 towards the beginning of this examination that he must answer all questions that were put to him, and ordered a short adjournment of the examination to enable LAZ24 to confer with his lawyer. After LAZ24 indicated that he would not answer the first question that is the subject of the charge, he was informed by the examiner that failure to answer questions was a criminal offence, and could be punished as a contempt. Those consequences were reiterated when LAZ24 refused to answer the second question which is the subject of the charge. Towards the end of the examination, the examiner told LAZ24 that, in light of LAZ24’s refusal to answer questions, the examiner was of the opinion that LAZ24 was in contempt of the ACIC, and the examiner proposed to apply to this Court for LAZ24 to be dealt with in relation to the contempt under s 34B of the ACC Act. The examiner also stated that, if LAZ24 were to change his mind at any time and decide that he was willing to answer questions, he should contact the examiner as soon as possible.

39    Consequences of contempt for inquiry: The Applicant’s evidence is that LAZ24’s refusal to answer questions has prejudiced the relevant special ACC operation. The confidential affidavit of Mr Halls states (among other things):

    The ACIC remains of the view that LAZ24 is a highly significant witness who can provide invaluable information, even if the operational value of any truthful evidence given by him may not be as great as if he had provided it at the examinations.

    LAZ24’s refusal to answer questions has adversely affected the ability of the ACIC to collect relevant and important information on persons LAZ24 is known to be connected with, who are suspected of being engaged in specified financial offences and drug-related activity.

    The relevant special ACC operation is ongoing with some proposed intelligence insights unanswered, which the ACIC believes that LAZ24 would be capable of answering. The ACIC has not identified another person who could provide the information sought from LAZ24.

40    Mr Halls was cross-examined, but these opinions were not substantively challenged (although LAZ24 did emphasise the qualifications that the operational value of information sought from him is now reduced, and that there is no allegation made that LAZ24 gave untruthful evidence). It is not surprising that the Applicant’s evidence in this respect does not “spell out the significance of the information sought, or the specific use to which it might be put”: Sage v CFS22 [2022] FCA 1023 at [37] (Bromwich J); Lusty v CVA22 [2023] FCA 130 at [48] (Thawley J); cf ITT24 at [50]-[52]. Mr Halls’ unchallenged evidence establishes that LAZ24’s refusal to answer has had a detrimental effect on the ACC special operation.

41    LAZ24 submitted that it was necessary to consider the evidence as at the time of the sentencing hearing, citing Wany v Director of Public Prosecutions (NSW) [2020] NSWCA 318; (2020) 103 NSWLR 620 at [22]-[28] (McCallum JA). The evidence of Mr Halls, as supplemented by the evidence given in cross-examination, is that the answers sought from LAZ24 have a continuing relevance for the ACC special operation (even if of somewhat reduced value), and that LAZ24 could be examined to give evidence before 12 December 2025 if LAZ24 were to indicate an intention to purge his contempt.

42    Reasons for the contempt: Moving to the reasons given for the contempt, LAZ24 stated at several points that he would not answer questions because he feared for his own life and safety, and that of his wife and children, as illustrated in the passage set out in [17] and [19] above.

43    It is well established that the fear of retribution will rarely be given mitigatory weight, because the exercise of compulsory powers such as those possessed by the ACIC to facilitate investigations would be significantly impeded if mitigating weight were to be given to an assertion of fear of retribution as a reason for refusing to provide information: CRA20 at [45]; DTO21 at [62]; AYI23 at [33]; Lusty (Examiner) v DEZ22 (No 2) [2023] FCA 858 at [10] (Wigney J). LAZ24 submits that a fear of retribution is given more mitigatory weight when the fear is of harm to a person’s family, not just to oneself, citing R v Ngoc Anh aka John Nguyen [2004] NSWCCA 332 at [55] (Spigelman CJ). It is doubtful whether Ngoc Anh supports LAZ24’s argument, but the more important issue is whether LAZ24 has raised anything more than a subjective generalised fear (which is given little weight).

44    For example, in Sage v CFS22 [2022] FCA 1023 at [30], Bromwich J found that the respondent’s fears, while not specific in referring to any direct threat having been made, were not generalised either. His Honour found that it was clear during the compulsory examination that the unnamed persons involved in the previous criminal offending by the respondent were the direct or indirect source of the fears held by the respondent: CFS22 at [4]. And in CVA22 at [71], [73], Thawley J found that evidence of the respondent’s experiences recounted in an expert psychiatrist report sufficiently established that the fears of the respondent in that case were real, and based on his experience, knowledge and thought processes.

45    Generalised fear: I accept the Applicant’s submission that, in this case, LAZ24 expressed no more than a generalised fear for his safety and the safety of his family. At the first examination, LAZ24 stated that he had not been threatened by anyone, that his wife and children had not been threatened, and that nobody other than his legal representatives knew that he was being examined. At the second examination, when asked about the basis of his fear, LAZ24 stated:

It’s just – let me just think. Look at all the people around here getting knocked off everywhere and people getting murdered everywhere and stuff like that. What's that – would you – I don’t know. I don’t want to answer your questions, that’s all. I can't answer any questions that may incriminate me or my family and put my family and myself in danger, that’s all.

46    LAZ24 stated shortly afterwards that no one had made a threat on his life, and that no one knew that he was at the examination.

47    LAZ24 contends that his fear of retribution was not general, for two reasons. First, he stated at the first examination that he had family members on his mother’s side [REDACTED], which (it was said) provided a rational basis for him to refuse to answer questions about [REDACTED]. However, as the Applicant submits, that statement only identifies persons who potentially could be the subject of a threat, but does not indicate that any threat has in fact been made. Second, it was submitted that a threat to LAZ24 and his family was apparent from the fact that a [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] was [REDACTED] murdered [REDACTED] [REDACTED]. However, LAZ24’s statements about fearing for his and his family’s safety were perfectly general, and did not refer to [REDACTED]. And at the second examination, LAZ24 rejected a suggestion that [REDACTED] had connections with [REDACTED] organised crime, and stated that he did not know and had heard nothing about whether [REDACTED] death was linked to organised crime. In those circumstances, this is not a case like CFS22 where the source of a fear was perfectly clear.

48    Medical evidence (Dr Nielssen): LAZ24 relies on the report of Dr Nielssen. That report sets out a history from LAZ24 (based on an interview with him), a psychiatric history and a medical history, a history of substance abuse (there is no significant history of abuse) and other history, and a document review. Dr Nielssen then set out his assessment of a mental state examination, his psychiatric diagnosis and opinion. Dr Nielssen diagnosed LAZ24 with adjustment disorder, with anxiety and depression. The doctor’s opinion contains the following:

    Adjustment disorder is a clinically significant response (such as disturbed sleep) to an adverse life event; namely, his being called to answer questions by the ACIC “and his perception that he could not answer the questions put to him because of a genuine fear for his own safety”. LAZ24’s report of panic was part of the syndrome of adjustment disorder.

    LAZ24’s cognitive function and judgment at the time of the ACIC interviews is likely to have been affected by his level of anxiety, and also the tranquilising effect of diazepam. However, LAZ24 maintained that he made a conscious decision not to answer questions because of the genuine belief that he and members of his family would be placed in danger if he did so.

    LAZ24 has some experience of prison from his previous sentence, and the main burden of imprisonment would fall on his wife and [REDACTED] children, his [REDACTED], for whom he is a carer, and his [REDACTED] [REDACTED], who would inevitably move to other [REDACTED], effectively closing his business.

    The natural history of adjustment disorder is to recover over time once the cause of the symptoms has been resolved or faded into the past. Supportive counselling has not been available to LAZ24 because of the secret nature of the ACIC proceedings.

49    As the Applicant points out, psychiatric evidence can be relevant to sentencing, if the person’s mental health: (1) contributed to the commission of the offence, so as to reduce moral culpability; (2) makes the person a less suitable vehicle for general deterrence or reduces the significance of specific deterrence; (3) means that a custodial sentence may weigh more heavily on the person; or (4) conversely, means the person presents more of a danger to the community: Director of Public Prosecutions (Cth) v de la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] (McClelland CJ at CL). I find that Dr Nielssen’s evidence does not establish any of the mitigating circumstances in points (1) to (3) just set out, at least not to any significant extent. For completeness, the report does not suggest that LAZ24 poses any greater danger to the community either (point (4) above).

50    Dr Nielssen does state that LAZ24’s cognitive function and judgment at the ACIC examinations is likely to have been affected by his anxiety (and diazepam), but he does not state the extent of this impairment. Significantly, Dr Nielssen reports that LAZ24 made a conscious decision not to answer questions. Accordingly, I would not find that LAZ24’s mental state reduced his moral culpability to any material extent (point (1) from de la Rosa set out above).

51    LAZ24 submits that, in circumstances where Dr Nielssen was not cross-examined, this Court is bound to accept his opinion that LAZ24’s cognitive function and judgment were affected at the examination by anxiety, and that LAZ24’s response to being summonsed to an ACIC examination was clinically significant. LAZ24 relied for these purposes on the approach taken to medical evidence in Lloyd v The Queen [2022] NSWCCA 18 at [40]-[47] (McCallum JA) and in Isaac v The King [2024] NSWCCA 2; (2024) 384 FLR 431 at [59]-[62] (Davies J) (although it was said that the result in Isaac could be distinguished on its facts). However, those cases do not suggest that a court may not consider carefully both the scope of findings of an expert report, and the findings that are not made. I accept that I should apply Dr Nielssen’s report fairly and according to its terms (given he was not cross-examined), but that does not prevent the Court from assessing the extent to which the diagnosis actually given reduces moral culpability.

52    The position in this case is also very different from DEZ22 (No 2), relied on by LAZ24 in writing. In that case, the respondent (who had initially been sentenced by Wigney J to imprisonment until further order) had applied to be re-sentenced, having at that point spent six months in prison: DEZ22 (No 2) at [8]-[9]. Wigney J found that it was most unlikely that the respondent would purge his contempt in the period remaining during which the relevant ACIC determination was in force, and therefore a fixed period of detention was appropriate: DEZ22 (No 2) at [18]. As to the appropriate period, a psychiatric report established that the respondent satisfied the criteria for post-traumatic stress disorder (which increased the risk to the respondent’s mental health from further imprisonment), while other evidence established that incarceration had perhaps been harsher for the respondent than it would have been for most offenders: DEZ22 (No 2) at [21], [24]. Further, affidavit evidence established that the respondent’s detention had had a deleterious impact on his former partner and their children: DEZ22 (No 2) at [26]. In those circumstances, Wigney J ordered that the respondent be sentenced to 12 months imprisonment, backdated to the date of his initial detention, with the remainder of the sentence to be suspended: DEZ22 (No 2) at [30].

53    The evidence in this case does not rise to the level of the evidence in DEZ22 (No 2). In particular, I am not persuaded that anything in Dr Nielssen’s report allows me to infer that imprisonment will have a greater burden on LAZ24 than other prisoners, at least to any significant extent (cf point (2) from de la Rosa set out above). Dr Nielssen’s report, having stated that LAZ24 “has some experience of prison from his previous sentence”, does not make any other statement about the possible effect of LAZ24’s adjustment disorder on the burden imposed by imprisonment.

54    Whether any apology or public expression of contrition: The next factor is whether there has been any apology or public expression of contrition. Here, LAZ24 stated on several occasions at the second examination that he did not intend any disrespect to the examiner or the counsel assisting, as in the passage set out in [19] above. I accept the Applicant’s characterisation of these statements as merely avoiding being rude to the examiner and counsel assisting personally. LAZ24’s statements that he did not intend any disrespect do not greatly advance the position in either direction.

55    LAZ24’s character and antecedents: I accept that LAZ24 indicated an intention to plea guilty at an early stage, and that this is properly taken into account: AYI23 at [35]; DTO21 at [63].

56    LAZ24 has two previous convictions which he accepts are properly characterised as “[REDACTED] offences”:

    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

57    He has also been convicted of [REDACTED] offences.

58    General and personal deterrence, denunciation of contempt: In CRA20 at [41], Abraham J stated that general deterrence must necessarily play a “prominent role” in any sentence for refusing to answer questions when required to do so. Similarly, Wigney J stated in Lusty (Examiner) v DER22 [2023] FCA 255 at [33] that “[t]he object of deterrence, both specific and general, is a particularly significant consideration in imposing a sentence for a contempt” in these cases. Those statements apply here.

59    I would not attach any great weight to personal deterrence in this case. The real issue arising under this consideration is the importance of general deterrence and the denunciation of contempts, and I give those matters significant weight: see AYI23 at [35], where Abraham J stated that matters personal to a respondent are, relatively speaking, of lesser weight than (general) deterrence and denunciation.

60    Incentive to purge contempt: One relevant matter, not mentioned in Staunton, is whether the contemnor has been given an opportunity to purge the contempt and, if so, whether that has taken place: CFS22 at [25]. As noted, one purpose of punishment in this context is to provide an incentive (or coercion) for the person to purge their contempt by answering the questions: see [26] above.

61    In this case, LAZ24 has been given opportunities to purge his contempt and has not done so. At the end of the second examination, the examiner asked LAZ24 to get in touch if he changed his mind about answering questions. And in February 2025, the examiner’s legal representatives sent a letter to LAZ24’s legal representatives inviting him to purge his contempt. There has been no response.

62    A significant factor in this respect is that the 2022 Determination, under which the relevant special ACC operation is authorised, will expire on 12 December 2025. For that reason, the Applicant, appropriately, does not seek an indeterminate sentence. However, the ACIC also advises that it remains of the view that LAZ24 can provide evidence relevant to the special operation.

63    In these circumstances, the purpose of any sentence imposed on LAZ24 includes the purpose of encouraging him to purge his contempt before 12 December 2025. That is unlike cases such as AYI23, when the determination had already expired at the time of sentencing. To be clear, I accept the Applicant’s submission that the Court may lawfully impose a fixed term that extends beyond the expiry date of the relevant ACIC determination (as in CVA22, where the respondent was sentenced in February 2023 to 7 months imprisonment and the ACIC determination was to expire in July 2023). That is because the purposes of the sentence are not limited to coercing a person into answering questions, but include retribution and deterrence.

64    I accept the Applicant’s submission that the parties should be at liberty to apply, in the event that LAZ24 purges his contempt before 12 December 2025. Orders to similar effect were made in ITT24.

65    Other considerations: LAZ24 also refers to the matters set out in s 16A(2) of the Commonwealth Crimes Act, which sets out matters that must be taken into account when sentencing for a “federal offence”. It is not necessary to determine whether or not contempt of the ACIC under s 34B of the ACC Act (which is punishable as a contempt of this Court) is strictly a “federal offence” for these purposes. That is because the applicable matters in s 16A largely coincide with the (non-exhaustive) list of matters identified in Staunton, and because the Court is entitled in the exercise of its discretion to consider any other relevant matter: Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 at [70] (Dodds-Streeton J); Anderson v BYF19 [2019] FCA 1959 at [51]-[53] (Abraham J).

66    Of the s 16A(2) factors, the most significant in this case is the probable effect that any order would have on LAZ24’s family or dependants (cf Commonwealth Crimes Act s 16A(2)(p)). I accept that the hardship suffered, and likely to be suffered, by LAZ24’s family as a result of his incarceration is a relevant consideration: DEZ22 (No 2) at [26] (Wigney J). Unlike DEZ22 (No 2), I do not have any affidavit evidence of the likely effect of his imprisonment on LAZ24’s family. However, it is plain that the incarceration of a father and husband must inevitably cause distress and hardship to his family, particularly when (as here) he is the principal breadwinner in the family. LAZ24 spoke at his first examination of the damaging effect on his family of his earlier incarceration, and similar consequences are likely to follow from his further incarceration. I also accept that the incarceration of LAZ24 would damage his business. Further, Dr Nielssen states that LAZ24 is the carer for his [REDACTED]. I take these matters into account.

67    LAZ24 also contends that his mental condition is relevant (cf Commonwealth Crimes Act s 16A(2)(m)), and relies on the report of Dr Nielssen. As discussed above, this report does not suggest that LAZ24’s mental health provides any material reason for his refusal to answer questions nor diminishes the moral culpability for his contempt. Neither does it suggest that the effect of imprisonment on LAZ24 will be particularly burdensome by reason of his mental health. And the adverse impact on LAZ24’s mental wellbeing described in that report does not appear to be an especially unusual response to an examination under the ACC Act.

sentence

68    The Applicant urges this Court to impose a significant fixed custodial sentence, and refers in particular to the sentences imposed in DEZ22 (No 2), CVA22, and AYI23. I accept that consistency with the kinds of sentence imposed in comparable cases is an important objective of sentencing, albeit that it is necessary to consider the particular facts and circumstances of each case: AYI23 at [36]; ITT24 at [79]. And of course I must sentence by reference to principle, not simply the outcomes in other cases (although those outcomes may be used as “yardsticks”): see R v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]-[29] (French CJ, Keane and Nettle JJ), [47] (Bell and Gageler JJ), To the extent that I must be satisfied as a threshold matter that no order other than imprisonment is appropriate (see [29] above), I am so satisfied, particularly given the order will have among other things a coercive effect of encouraging LAZ24 to purge his contempt.

69    I agree with the Applicant that sentencing under s 34B of the ACC Act is its own distinct exercise, and there is no analogy with sentencing for Commonwealth summary offences. I reject the submission of LAZ24 that, in light of Dr Nielssen’s report and relying on DEZ22 (No 2), the sentence should be suspended in whole or in part. As explained in [52]-[53] above, the psychological evidence and the procedural history in this matter are very different from DEZ22 (No 2). I do not see any basis for suspending the sentence at this stage, given one function of the sentence is to encourage LAZ24 to purge his contempt. I note that the orders made by Wigney J in DEZ22 (No 2) suspending the remainder of the sentence were made after the respondent had already spent six months in prison, and where his Honour had found that there was no real prospect of the continued detention of the respondent causing him to purge his contempt. By contrast, in this case there is a live possibility of LAZ24 purging his contempt. I also reject the submission by LAZ24 that previous authorities in this area “must be viewed through the prism of the recency of the Lawyer X scandal”. That scandal sheds no light on this case.

70    In this case, the conduct of LAZ24 is serious and deliberate. His refusal to answer questions has had an adverse effect on the operation conducted by the ACIC, and the ACIC still seeks truthful answers from him. A refusal to answer of this sort is generally treated as serious, and the interests of general deterrence and denunciation of contempts require that it be treated seriously in this case. There is still time for him to purge his contempt before 12 December 2025, which means that coercion is an additional relevant consideration in this case.

71    In all the circumstances, I find that the appropriate order is a fixed term of imprisonment of 9 months, to commence immediately. The parties have leave to apply, in the event that LAZ24 wishes to purge his contempt and provide answers to the ACIC before 12 December 2025.

Associate:

Dated:    29 April 2025