Federal Court of Australia

Lusty v EZJ25 [2025] FCA 1068

ORDERS

THE COURT DECLARES THAT:

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

THE COURT ORDERS THAT:

1.    The respondent is sentenced to a term of imprisonment of 6 months to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

2.    The custodial period of 4 months’ imprisonment is to date from [REDACTED] 2025 to [REDACTED] 2026, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on [REDACTED] 2026 and expiring on [REDACTED] 2028.

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

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

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The respondent is charged with the offence of contempt of the Australian Criminal Intelligence Commission (ACIC) committed on [REDACTED] by his refusal to answer seven questions that he was required to answer during compulsory examinations conducted pursuant to the Australian Crime Commission Act 2002 (Cth) (ACC Act).

2    The applicant, an examiner appointed under s 46B of the ACC Act, seeks, inter alia, declarations that the respondent is guilty of contempt of the ACIC contrary to s 34A(a)(ii) of the ACC Act, and orders for punishment of that contempt.

3    At the first case management hearing on 13 May 2025, the respondent’s legal representative informed the Court that the respondent intended to plead guilty to the charge. That plea was formally entered on the day of the hearing. Accordingly, it falls to me to sentence him.

4    For the reasons set out below, I impose a term of imprisonment of 6 months to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

Evidence relied on

5    In support of the application, the applicant read the following affidavits:

(1)    Cameron Hutchins, affirmed 24 April 2025;

(2)    Cameron Hutchins, affirmed 26 May 2025; and

(3)    Jason Leigh Halls, sworn 27 May 2025.

6    Mr Halls was required for cross-examination.

7    The respondent read affidavits of the following persons:

(1)    the respondent, sworn 27 June 2025;

(2)    the respondent’s father, sworn 23 June 2025; and

(3)    the interpreter, Bassam Ashqar, sworn 27 June 2025.

8    In addition, the respondent tendered Exhibit-R1 (a series of photographs) and Exhibit-R2 (a psychological report prepared by Mr Albassit).

9    The respondent and Mr Albassit were required for cross-examination.

Statutory and regulatory background

10    In previous judgments I have outlined the relevant statutory background. The following is taken from those descriptions.

11    The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special ACC operations” and “special ACC investigations” relating to “federally relevant crime”: s 7A(a)-(c). The Board of the ACIC (the Board) makes determinations pursuant to ss 7C(2) and (3) to authorise special ACIC operations and special ACIC investigations to occur.

12    In carrying out the ACIC’s functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 19A, 21A, 20-22 of the ACC Act. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28 of the ACC Act. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30 of the ACC Act.

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

14    Persons appearing as witnesses at an examination before an ACIC examiner are in contempt of the ACIC if they refuse or fail to answer a question which they are required to answer by the examiner: s 34A(a)(ii) of the ACC Act. 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).

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

The summons

16    The relevant summons was issued to the respondent on [REDACTED], which required him to attend an examination before the applicant on [REDACTED] (the Summons).

17    The evidence establishes that on 12 December 2022, the ACIC commenced a special ACIC operation under the Special Australian Criminal Intelligence Commission Operation Determination (Drugs) 2022 (the Drugs 2022 SO and the Drugs 2022 Determination, respectively). The purposes of Drugs 2022 SO include identifying those persons and entities involved in the commission of Specified Drug Offences (including organised crime groups, associates, and facilitators (such as government officials and private sector professionals)); identifying the relationships between different persons and entities involved in the commission of Specified Drug Offences; understanding the methods and techniques used in the commission of Specified Drug Offences; understanding the dynamic and changing environment in which Specified Drug Offences are committed; and identifying emerging techniques, equipment and materials in the manufacture of substances relevant to Specified Drug Offences, and methods of transport and importation of substances relevant to Specified Drug Offences.

18    I note that the relevant Determination expires on 12 December 2025.

19    On the evidence before me, the ACIC still believes that the respondent is a significant witness who can provide invaluable information about the activities of relevant criminal groups and transnational organised crime networks, and about past, present and future-planned Specified Drug Offences, and would assist in progressing the Drugs 2022 SO and achieving its purposes.

Factual background

20    The respondent appeared before the applicant at the examination on [REDACTED]. He was represented by a lawyer.

21    The examiner explained various matters to the respondent, including that the examination would be conducted in private, that the respondent could take a break to speak to his lawyer, that the respondent’s evidence would be treated as confidential, his legal rights and obligations, including his obligation to answer questions and that a failure to do so is a contempt which is punishable by a potentially indefinite term of imprisonment, and that the respondent had protection from self-incrimination.

22    The respondent was then asked seven questions. He declined to answer any questions, stating “No comment” or remaining silent. The questions are summarised in [2] of the applicant’s submissions:

[2.1]    Do you have any bank accounts in Australia?

[2.2]    Do you hold any cryptocurrency?

[2.3]    Do you hold any stocks or shares?

[2.4]    Have you, yourself, been involved in dealing, supplying or delivering cocaine in the past twelve (12) months?

[2.5]    Do you know anyone else who has been involved in dealing, supplying or delivering cocaine in the past twelve (12) months)?

[2.6]    Have you, yourself, been involved in dealing or possessing money that is proceeds of the sale of cocaine within the past twelve (12) months?

[2.7]    Do you know anyone else who has been involved in dealing with money that is the proceeds of sales of cocaine within the past twelve (12) months?

Legal principles

23    In Anderson v BYF19 [2019] FCA 1959 (BYF19) at [42]-[49], Lusty v CRA20 [2020] FCA 1737 (CRA20) at [31]-[39] and Sage v AYI23 [2023] FCA 1336 (AYI23) at [20]-[25], I summarised the principles applicable to sentencing for contempt offences in this context. The following summary of principles is taken in large part from those reasons. See also DTO21 v ACC [2022] FCAFC 190.

24    In Anderson v DKH18 [2018] FCA 1571, White J summarised some of the authorities which reflect on the significance and importance of the offence of contempt (both in the context of the ACC Act and more broadly) as follows:

[24]    A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, at 117-8:

The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation.

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

…

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

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

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

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

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

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

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

25    The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: XLVII at [49] per White J; Wood, Honourable Justice v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567 (Wood v Galea) at 571 per Hunt CJ; Von Doussa v Owens (No 3) [1982] SASC 6369; (1982) 31 SASR 116 at 118 per 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 (Hannaford) at [39] per Dodds-Streeton J citing Wood v Galea at 571. A contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry is usually to be regarded as a serious contempt: XLVII at [49]; Wood v Galea at 571; Von Doussa v Owens (No 3) at 117-8 per King CJ (Zelling and Wells JJ agreeing).

26    It has been recognised that because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: XLVII at [49] per White J citing Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford at [60]-[63]. Although, coercion is inappropriate if the person has purged his or her contempt or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: XLVII at [49] per White J; Wood v Galea at 573.

27    In Anderson v GPY18 [2019] FCA 954 (GPY18), Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as having been regarded by subsequent cases as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: see e.g. DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 (‘Allbeury’) at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 (Hannaford (No 2)) at [27]. Although, it must be acknowledged that the list of considerations is not exhaustive: Hannaford (No 2) at [73]. Dunford J identified ten considerations in assessing the proper punishment for contempt in the following terms: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself of what he did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt: see Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25] per Merkel J; Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (Kazal) at [101]-[103] per Besanko, Wigney and Bromwich JJ.

28    There is no prescribed or maximum penalty for a contempt of this nature. There are a range of penalties available: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], set out the range as follows, being to: (1) 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.

Consideration

29    The respondent submitted that his case is unusual because despite a significant investigation from 2022, the respondent was not charged alongside [REDACTED] other individuals [REDACTED], and he was not brought before ACIC until six months after the arrest of the last individuals. He submitted that this impacted on his sentence in three ways: first, it validates the concerns of the respondent regarding any potential prejudice to impending criminal proceedings (given the assertions made about him as to his role/participation in alleged criminal offending); second, it supports the basis of his fears for his wellbeing and his family’s wellbeing from violence; and third, it undermines the applicant’s contention that the actual consequences of the contempt to the ACIC inquiry were of any significance. He submitted that the objective seriousness of the contempt falls toward the lower end of the spectrum for like offending and his powerful subjective features do not make him an appropriate vehicle for general deterrence. The respondent urged that a community-based order would do justice to the matter, or alternatively a short, fixed term of imprisonment may be imposed.

30    As a starting point, it is plain the respondent’s contempt was deliberate. The respondent was informed of the consequences of his refusal to answer the questions and took that approach in a context where he received legal advice in relation to the examination. He was represented by a lawyer. He was aware of the obligations imposed on him by the Summons and the consequences of his actions. He refused to answer any questions from the outset, the first four of which related solely to him (and five of the seven questions).

31    A refusal to answer questions undercuts the effectiveness of the statutory scheme which authorises those compulsory examinations: CRA20 at [41].

32    I accept the applicant’s submission that the failure to answer the questions impacted on the ACIC’s investigation. These reasons are necessarily written at a level of generality given the non-publication orders in place. The basis of the ongoing desire to question the respondent, and the context in which that occurs, is set out in the affidavit of Mr Halls. This was not undermined in cross-examination. For the same reasons, I do not propose to detail that evidence. In so far as the respondent suggests that the information sought by the questions could have been obtained by other means, Mr Halls did not accept the proposition. Relevantly, the evidence was that the questions asked were introductory and would have been followed by others. That can be readily accepted. The respondent’s submission, referred to above, about others having been arrested and the timing of the Summons relative to that, and the investigation has no foundation. It fails to grapple with the evidence of Mr Halls, and the nature of how an ongoing investigation may develop.

33    The respondent’s evidence was that he did not answer any questions out of fear. There is no evidence of any threats, with the basis of fear difficult to articulate. This generalised fear, was in a context where, when the respondent refused to answer questions, neither he nor his lawyer gave any reason for doing so. It was not said to the examiner, that it was based on fear, although he was repeatedly invited to explain his position, and was expressly asked whether he had any “specific safety concerns”. In his affidavit, the respondent simply states that he has a “genuine fear for [his] safety and [his] family’s safety” if he was to give evidence. No basis is provided. At best, from his affidavit he said he cannot give evidence because he saw on the news “shootings and violence in Sydney”. Thereafter, the respondent’s position was changing or developing during his oral evidence. Ultimately, the basis appears to be that he has heard of evidence of investigations by the ACIC being leaked to the public, that he has seen news reports of violence committed against people suspected of speaking with the ACIC, and he has heard rumours, or talked about this with other people (or heard people talk about it). He said this was in a context where he lived in [REDACTED], and the “groups” there “have no remorse”. The evidence was very vague. He could not identify when, where, or to whom he may have talked, claiming he had no memory of specifics. His oral evidence included matters not referred to in his affidavit.

34    This is also in a context where he gave evidence in cross-examination that he knows nothing, and therefore would not, if he answers the questions, implicate anyone. As evident from the description above, there is no evidence of any direct threat. I note that the respondent submitted that when asked that question in cross-examination he paused before saying there were no threats, and that I should draw an inference from that pause that there has been a direct threat. I cannot do so. The respondent was given an opportunity to answer the question (it having been asked on more than one occasion). The answer did not require any identification of a source. It is likely that by this stage in his cross-examination he was aware of the significance of the absence of a direct threat, and hence a pause before again saying there was none. This is also in a context where, as described above, his evidence of his knowledge of the ACIC, and the consequences of speaking to them expanded during cross-examination. He said that he feared retribution. He said his concern was of the transcript of the examination by the ACIC leaking, but on his evidence, there would be nothing incriminating to others in it. Further, as referred to above, five of the questions he refused to answer referred solely to him.

35    There is also a disconnect between the respondent’s evidence, and the written submissions on his behalf. His submission as to his reasons for the contempt was threefold. First, were his fears concerning reprisals by others, referring expressly to the other [REDACTED] individuals charged. However, as explained above, his evidence was such that nothing he said could incriminate persons (which, on his evidence those persons would know). They have nothing to fear from him. Five of the questions relate to his conduct. That basis does not accord with his evidence. Second, it was said that it could be inferred that he feared self-incrimination. That submission was made in writing before it was withdrawn during the hearing (when questioned about it by the Court) and accordingly I do not rely on it. That said, as referred to above, the respondent refused to answer any questions from the outset, the first four related solely to him. An inference is open that he did not want to incriminate himself. That would not mitigate the contempt. I note that often in these cases before this Court, some questions are answered, and others are declined. This is to be contrasted to this case, where the respondent did not answer any question directed to himself. The third basis was his mental health. The respondent tendered a report from a psychologist, Mr Albassit, which was produced for cross-examination. The applicant recited [24]-[26] of his report, as follows:

[24]    Furthermore, his generalised anxiety and diminished self-worth likely reinforced a belief that disclosing information could result in negative consequences, regardless of his intent or innocence. Individuals with chronic anxiety often exhibit catastrophic thinking and an exaggerated sense of potential negative outcomes. In this case, EZJ25 feared the ramifications of his actions and that speaking to authorities might expose him to further harm, judgment, or legal jeopardy. His behaviour can therefore be understood as an attempt to protect himself from danger rather than an intent to withhold information or deceive.

[25]    EZJ25 expressed a preference for incarceration over providing information that could jeopardise his personal safety. This position, while seemingly irrational to an external observer, is consistent with a trauma-based view, embedded in past victimisation and chronic anxiety. For individuals with PTSD and severe anxiety, safety becomes the overriding priority, even at his own cost and impending consequences.

[26]    The psychological threat posed by disclosure (e.g., fear of retaliation, exposure, or further trauma) outweighed the tangible consequences of imprisonment. This suggests a deep-rooted perception that jail may offer more predictability and physical security than an uncertain environment in which he would be vulnerable to harm. Such a stance reflects not only his impaired risk appraisal but also the extent to which trauma has altered his capacity for adaptive decision-making. EZJ25 actions were defensive and fear-driven.

36    It is concerning that only in cross-examination did Mr Albassit opine that the respondent’s anxiety is not moderate but in fact severe. Mr Albassit took at face value the respondent’s statement that he is afraid for his life and family. He also suggested a person with severe anxiety has a tendency to catastrophise and may make decisions perceived to be irrational by the general public (e.g. preferencing incarceration over providing information). This opinion also reflects a disconnect with the respondent’s evidence. On the respondent’s evidence, he has made a deliberate decision because of his fears, and those fears are real. I note that the respondent had not engaged with any psychological assistance prior to this matter.

37    It is well established that fear of retribution will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24]; Allbeury at [42]-[43]; Hannaford (No. 2) at [33]; and BYF19 at [58]-[61]. This is because the exercise of such powers as possessed by the ACIC to facilitate the investigation of matters of this nature 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.

38    The respondent submitted that the manner the Court may take this into account is dependent on the nature of the expressed fear. He referred to Sage v CFS22 [2022] FCA 1023, submitting that fear was raised by the respondent with the court finding that the expressed fear “while not specific in referring to any direct threat having been made, were not generalised either” at [4], concluding that the “fears were genuine and rational” at [45], and thereby acted to mitigate the seriousness of the non-compliance. The respondent was sentenced to a fixed term of imprisonment of eight months to be released after four months on condition of good behaviour. The respondent’s submission takes the recited passages out of their context. For example, after the passage at [4] recited by the respondents, the Court continued:

It was made clear enough during the examination that the unnamed persons involved in the previous criminal offending were the direct or indirect source of the fears he held. The fears expressed were not inherently implausible, especially given some aspects of what took place between the two examination days, which is not necessary or desirable to spell out. This goes some way to mitigate the seriousness of the non-compliance.

39    Factually that case is distinguishable from this case. Each case must turn on its facts.

40    This fear expressed by the respondent was no more than a generalised fear. There is no evidence of any specific threat that has been made to either the respondent or his family either at the time of questioning or since.

41    Although the psychological evidence is unsatisfactory in some respects, I accept that the respondent does suffer from anxiety. However, that does not elevate or strengthen the significance of his evidence of fears in this sentencing process. Nonetheless, although the psychological evidence does not properly address the issue, I appreciate that he may serve any period of imprisonment harder than otherwise and take that into consideration.

42    The respondent did acknowledge his guilt at an early stage and is entitled to the utilitarian benefit for that. That said, given the nature of the conduct, the conclusion was inevitable. Although the applicant apologises and says he is remorseful, without purging the contempt, it is rather meaningless.

43    I also have considered the personal circumstances of the respondent. He lives at home, and on the evidence assists his parents. However, the evidence is somewhat unclear on the extent of that. That is particularly so where his submission is that he is the “sole significant financial contributor to the household” in circumstances where the cross-examination reflected his income, at best, is very minimal. I take into consideration his evidence of his background, character and upbringing, and the evidence of the respondent’s father and Mr Albassit (I do not detail it as it may tend to identify him). I note he has no prior convictions.

44    The respondent could not point to any occasion where a community-based penalty had been imposed in a case of this nature. That is not surprising, given the nature of these contempt proceedings. It would perhaps be more likely if the information is no longer required, or the contempt is purged, but that is not the case here.

45    As explained earlier, the purposes of punishment for a contempt constituted by a refusal to answer questions in these circumstances, is retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: see the discussion in DTO21 at [37]-[54]. These factors are an important feature of the sentence given the deliberate decision by the respondent to refuse to answer questions. It necessarily follows that personal circumstances and mitigating factors specific to the respondent carry less weight: Hannaford (No 2) at [32] citing Allbeury (No 2); CRA20 at [50]; AYI23 at [35]; and BYF19 at [77].

46    The respondent’s submission fails to recognise the coercive element of the penalty. The ACIC still wants to examine him, and on the evidence, considers his evidence important. Although the respondent has said he will not purge his contempt, that is only his current state of mind. The submission that he was emphatic in the refusal does not alter that. Indeed, the effect of the respondent’s submission is that if a person refuses to answer questions out of fear for their safety even if the consequence was imprisonment, the Court should accept that as conclusive. The respondent is yet to experience custody, and as has been recognised, that experience may nonetheless have a coercive effect: see e.g. Anderson v DKH18 (No 2) [2019] FCA 1352. It is a relevant factor: see e.g. DTO21 at [52].

47    A community-based penalty contains no coercive element. Nor does it provide any deterrence to others who are considering refusing to answer questions when summonsed, contrary to their obligation imposed by law.

Sentence

48    I have considered the principles relevant to assessing the punishment for contempt, the relevant sentencing principles, the evidence, and submissions. As noted above, the determination expires on 12 December 2025, and coercion has no part to play thereafter. That necessarily impacts on the assessment of the sentence.

49    In all the circumstances, I impose a sentence of imprisonment for 6 months, to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

50    There is liberty to apply if the respondent chooses to purge his contempt before the expiry of the Determination.

51    I also make the declarations in the terms sought.

Associate:

Dated:    5 September 2025