Citation: Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846
Court: Supreme Court of New South Wales, Common Law Division
Date: 26 August 1999
Judge(s): Adams J
Background
The defendant was called as a witness in the Supreme Court murder trial of her husband, who was charged with the contract killing of a man named Theissel. The defendant had previously pleaded guilty to the same murder and had been sentenced by Sully J in November 1997 to twelve years penal servitude with a nine-year minimum term. Despite being given multiple opportunities by the presiding judge to reconsider her position, the defendant refused to answer questions at her husband's trial, including a direct question about the identity of the person she knew to have killed the deceased.
Adams J subsequently convicted the defendant of contempt of court. The present judgment dealt with the appropriate sentence for those contempts.
Legal Issues
- What sentence was appropriate for the contempt convictions, having regard to the seriousness of the conduct and the defendant's personal circumstances?
- How should the totality principle apply when imposing a contempt sentence on a person already serving a sentence for the underlying offence?
- Whether special circumstances existed to justify adjusting the ratio between the minimum and additional terms.
Decision
Adams J characterised the contempts as serious and deliberate. The defendant knew material facts about the murder and her husband's involvement, and her refusal to answer was a conscious effort to frustrate the administration of justice and protect her husband from conviction. The court accepted that the suggestion she remained silent out of fear was not pressed and was not credible.
The court acknowledged several mitigating features in the defendant's background, including a difficult personal history, a history of drug dependency, the presence of a young daughter, past suicide attempts, and the possibility of some rehabilitation. Adams J also accepted that, to a degree, misplaced loyalty to her husband and a degree of bravado had motivated her conduct, particularly given the husband's documented influence over her.
Applying the totality principle, Adams J structured the contempt sentence to run cumulatively after the existing murder sentence. The court identified special circumstances warranting an extended additional term, reflecting the defendant's rehabilitation and supervision needs upon eventual release. Notably, disclosure of the withheld evidence had not proved fatal to the Crown case, as the husband was ultimately convicted on other, largely circumstantial evidence.
Orders Made
- The defendant was sentenced for contempt of court committed on 15 April 1998 (refusal to answer a question identifying the killer of John Theissel) to six years imprisonment.
- The sentence comprised a minimum term of two years commencing 30 September 2006 and expiring 29 September 2008.
- An additional term of four years commencing 30 September 2009 and expiring 29 September 2012 was also imposed.
- The sentence was structured to run cumulatively after the existing murder sentence.
Key Takeaways
- Deliberate refusal by a witness to answer questions at a serious criminal trial constitutes contempt warranting direct, immediate, and exemplary punishment, consistent with the principle stated by Mahoney JA in Smith v The Queen (1991) 25 NSWLR 1.
- Where a contempt offender is already serving a custodial sentence for an offence arising from the same circumstances, the totality principle applies to ensure the overall sentencing outcome is proportionate.
- Special circumstances can justify an extended additional term in a contempt sentence where the offender's rehabilitation and supervision needs are demonstrated, even if the primary minimum term tracks the existing sentence structure.
- Mitigating factors such as personal history, drug dependency, and the influence of a co-offender may reduce the weight attached to general deterrence, but do not displace the need for meaningful punishment where the conduct was conscious and deliberate.
- The fact that the withheld evidence ultimately proved unnecessary to the Crown's case was noted but did not eliminate the seriousness of the contempt; the defendant's intent to obstruct justice remained the central consideration.
Legislation and Cases Referenced
Legislation:
- Sentencing Act (NSW)
Cases:
- Smith v The Queen (1991) 25 NSWLR 1
- R v Bloomfield (1988) 44 NSWLR 734
- Pearce v R (1988) 72 ALJR 1416