Citation: Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490
Court: Supreme Court of New South Wales (Common Law Division)
Date: 6 June 2002
Judge(s): Newman AJ
Background
The defendant, a young offender who had already been sentenced in the Children's Court for a series of robbery offences, had signed an undertaking to give evidence in the District Court trial of a co-accused, Abdul Sameer Khan. His sentence in the Children's Court had included a three-month credit specifically for that undertaking.
When called as a witness on a voir dire (a preliminary hearing to determine the admissibility of evidence) in the Khan trial on 29 May 2001, the defendant refused to answer three material questions put to him by the Crown Prosecutor. During that same voir dire, after being given a cup of water, the defendant threw the water at the presiding judge, Judge Armitage QC, striking him on the face and robes.
The Principal Registrar of the Supreme Court brought contempt proceedings. The defendant pleaded guilty to four charges of contempt: three relating to the refusal to answer questions, and one relating to the throwing of water at the judge.
Legal Issues
- What is the appropriate sentencing framework for contempt of court, including whether the Crimes (Sentencing Procedure) Act 1999 applies?
- How should multiple contempts of different character be sentenced, particularly regarding cumulative versus concurrent terms and the principle of totality?
- Whether a non-parole period should be set under section 45 of the Crimes (Sentencing Procedure) Act 1999?
- How the defendant's personal circumstances, including youth, guilty plea, and comparatively limited prospects for rehabilitation, should affect the sentence?
Decision
The court treated the three refusals to answer questions as a single contempt for sentencing purposes, consistent with the Crown's submission. The court also treated the throwing of water at the judge as a separate and distinct contempt, given that it was different in character from the refusal to testify. Each form of contempt therefore attracted its own sentence.
Newman AJ identified the applicable sentencing principles from a series of earlier New South Wales decisions and approached the matter by reference to both objective seriousness and subjective factors. The court noted that the defendant's refusal to testify was aggravated by the fact he had given a formal undertaking to give evidence, and had received a sentencing discount in the Children's Court specifically for that undertaking. The contempt involving throwing water at the judge was treated as a direct and serious reprisal against a judicial officer, capable of intimidating judges and undermining public confidence in the administration of justice.
On subjective matters, the court acknowledged the defendant's youth and guilty plea. However, unlike a co-contemnor in related proceedings (Jando), the defendant presented no material demonstrating strong prospects for rehabilitation. That distinction weighed against imposing a more lenient sentence.
Applying the totality principle to the cumulative sentences, the court reduced the individual terms so that the total period of imprisonment was 15 months. The court declined to set a non-parole period under section 45 of the Crimes (Sentencing Procedure) Act 1999, finding that the nature of the offences demanded a full-time custodial term equal to the total sentence imposed.
Orders Made
- 11 months imprisonment for the contempt of refusing to answer questions, commencing 12 December 2005 and expiring 11 November 2006.
- 4 months imprisonment for the contempt of throwing water at the judge, commencing 12 November 2006 and expiring 11 March 2007.
- No non-parole period set for either sentence.
Key Takeaways
- Contempt of court by refusal to testify and contempt by physical reprisal against a presiding judge are distinct in character and may attract separate cumulative sentences rather than concurrent terms.
- Where a defendant has received a sentencing discount for an undertaking to give evidence and then breaches that undertaking by refusing to testify, that history is a significant aggravating factor in any subsequent contempt proceedings.
- Under section 45 of the Crimes (Sentencing Procedure) Act 1999, a court may decline to set a non-parole period where the nature of the contempt is serious enough to warrant full-time custody for the entirety of the term imposed.
- The totality principle applies to contempt sentencing: even where cumulative sentences are otherwise warranted, the court retains a discretion to reduce individual terms so that the combined sentence is not disproportionate overall.
- Prospects for rehabilitation carry weight in contempt sentencing; the absence of evidence supporting rehabilitation can distinguish a defendant from others who received more lenient treatment in comparable cases.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 45 and 5DA
- Evidence Act 1995 (NSW), section 38
Cases
- Smith v The Queen (1991) 25 NSWLR 1
- Registrar of the Court of Appeal v Raad (Court of Appeal, 9 June 1992, unreported)
- C v Registrar, Court of Appeal (Court of Appeal, 19 December 1995, unreported)
- Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported)
- Registrar of the Court of Appeal v Craven (No.2) (1995) 120 FLR 464
- Wood v Staunton (No.5) (1995) 86 A Crim R 183
- Registrar v Glasby [1999] NSWSC 846
- Prothonotary v Wilson [1999] NSWSC 1148
- Cook & Ors v Phillips & Ors (Court of Appeal, 29 September 1995, unreported)
- Wilson v Prothonotary [2000] NSWSC 23
- European Asian Bank v Wentworth (1985) 5 NSWLR 445
- Principal Registrar, Supreme Court v Katelaris [2001] NSWSC 724