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Supreme Court 25 September 2006

Commissioner for the Police Integrity Commission v Walker

[2006] NSWSC 964

Public order & justice offences
CONTEMPT OF POLICE INTEGRITY COMMISSION WHERE CONTEMPT IS OF SERIOUS NATURE

Citation: Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964
Court: Supreme Court of New South Wales, Common Law Division (Administrative Law List)
Date: 25 September 2006
Judge(s): McDougall J

Background

The defendant, a former police officer, had been found guilty of contempt of the Police Integrity Commission in earlier proceedings (Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696). The contempt arose from his conduct on 6 December 2004, when he gave evidence before the Commission and falsely asserted an inability to recollect his alleged involvement in a particular event (referred to as the "Chiswick event"). McDougall J found that those false claims of inability to recall amounted to a refusal or failure to answer relevant questions.

This judgment concerned sentencing only. The Commissioner sought a term of imprisonment, while the defendant relied on evidence of good character, medical material, and pre-sentence reports from the Probation and Parole Service.

An officer of the Commission also gave evidence that, although the primary investigation had concluded and a report had been presented to Parliament, related matters remained under ongoing investigation and the Commission might wish to call the defendant again to give evidence in the future.

  • Whether imprisonment was the only appropriate penalty for the contempt under s 5(1) of the Crimes (Sentencing Procedure) Act 1999
  • What weight, if any, should be given to the defendant's good character references, given the character witnesses' apparent lack of knowledge of the underlying conduct
  • Whether any aggravating or mitigating factors under s 21A(2) and (3) of the Act applied to the sentencing exercise
  • The extent to which general deterrence and denunciation were relevant sentencing considerations, given the serious nature of contempt of a body such as the Police Integrity Commission

Decision

McDougall J approached sentencing by reference to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, relevant case law on contempt, and the specific facts established in the earlier liability judgment. His Honour treated the contempt as serious in nature, emphasising the importance of deterrence and denunciation where a witness before a statutory integrity body falsely claims memory loss to avoid answering questions.

The court gave limited weight to the defendant's good character evidence. Although four character references were tendered, McDougall J found that the referees were largely unaware of the serious underlying conduct established in the Commission proceedings. Because the assessments of good character did not account for those matters, the references carried reduced persuasive force, even where the referee claimed to have been informed of the contempt finding.

McDougall J acknowledged that the defendant had no prior criminal record and that some personal and medical circumstances were relevant to the sentencing discretion. However, those matters did not displace the court's conclusion that the seriousness of the contempt, combined with the need for general deterrence and denunciation, required a sentence of imprisonment. The court determined that a term of six months was appropriate.

Execution of the sentence was stayed pending assessment of the defendant's suitability for home detention. The court declined to make a declaration of contempt in addition to the sentence, finding no utility in a formal declaration where a finding of guilt had already been made. No costs order was made, as the Commissioner did not press for one.

Orders Made

  • The defendant was sentenced to six months' imprisonment for contempt of the Police Integrity Commission.
  • The defendant was referred to the Probation and Parole Service for assessment as to suitability for home detention.
  • Execution of the imprisonment sentence was stayed until further order of the Court.
  • The proceedings were stood over to a date to be fixed by agreement with counsel.
  • Bail was granted on conditions including: surrender of any current passport by 12 noon on 26 September 2006; prohibition on applying for or obtaining any passport while on bail; prohibition on going within one kilometre of any place of international departure; and reporting to North Sydney Police Station every Monday, Wednesday, and Friday between 4 pm and 6 pm.
  • No order as to costs was made.

Key Takeaways

  • Contempt of a statutory integrity commission such as the Police Integrity Commission is treated as a serious offence warranting imprisonment, particularly where the conduct involves a deliberate false assertion of memory loss to avoid answering questions during a formal inquiry.
  • Good character references carry reduced weight in sentencing where the character witnesses are unaware of, or have not meaningfully engaged with, the serious underlying conduct that gave rise to the offending.
  • Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, the court must consider whether no penalty other than imprisonment is appropriate; here, the combination of seriousness, the need for general deterrence, and denunciation of the conduct justified that conclusion.
  • Staying execution of a sentence pending home detention assessment is a procedurally available step, allowing the court to impose a custodial term while deferring actual incarceration subject to a Probation and Parole Service report.
  • No formal declaration of contempt was made alongside the sentence, as the court found no utility in declaring what had already been established by a finding of guilt in the liability judgment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2), 21A(3)

Cases
- Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696
- Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
- R v Aristodemou (Court of Criminal Appeal, 30 June 1993, unreported)
- Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162
- Ryan v Wright [No 2] [2004] NSWSC 1019
- Wood v Galea (1995) 79 A Crim R 567
- Wood v Galea (1997) 92 A Crim R 287
- Wood v Staunton (No 5) (1996) 86 A Crim R 183