Citation: Regina v Alan Belford Jones and Harbour Radio Pty Ltd [2008] NSWDC 34
Court: District Court of New South Wales
Date: 27 March 2008
Judge(s): Finnane QC DCJ
Background
The case arose from a radio broadcast in which a well-known broadcaster (the first appellant) named a child witness during coverage of a criminal trial. Publishing the name of a child witness was prohibited by law. The broadcaster's company, Harbour Radio Pty Ltd (the second appellant), was also charged. Another media outlet, News Ltd, had previously published the same name in a major Sydney newspaper and did not contest its conviction or penalty.
The broadcaster and his company had both been found guilty by a magistrate, who sentenced them on the basis that they had acted dishonestly. The appellants challenged the penalties imposed below. On appeal, the District Court had already found in the earlier February 2008 judgment that the broadcaster had acted honestly, although his belief that the broadcast was lawful was not based on reasonable grounds.
The sentencing hearing before Finnane QC DCJ dealt solely with what penalty, if any, was appropriate in light of that finding of honest but unreasonably mistaken belief.
Legal Issues
- Whether a section 10 dismissal (without conviction) under the Crimes (Sentencing Procedure) Act 1999 was appropriate in the circumstances
- Whether the prior contempt conviction of the broadcaster precluded a finding of previously blameless character
- Whether the broadcaster's honest (though unreasonably held) belief about the lawfulness of his conduct affected the appropriate penalty
- Whether the sentencing outcome for another broadcaster convicted of a different contempt offence was a relevant comparator
- Whether a section 9 bond or fine was appropriate where imprisonment was not a realistic sentencing option
Decision
Finnane QC DCJ upheld both appeals and dismissed the charges under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without recording convictions. The court found that the broadcaster had acted honestly, and that the magistrate's penalties had been founded on a finding of dishonesty that did not survive the appeal. That finding materially changed the sentencing calculus.
The court rejected the Crown's submission that a section 9 bond and fine were appropriate. A section 9 bond, the court reasoned, is an alternative to imprisonment, and imprisonment is rarely appropriate where the offender acted honestly but under an unreasonably mistaken belief. Because imprisonment was not a realistic sentencing option in those circumstances, it followed that a sentence in lieu of imprisonment was equally inappropriate.
The court acknowledged the broadcaster's prior contempt conviction from 1993 (relating to broadcasts made in 1990) but gave it limited weight. The earlier contempt involved sustained radio interviews over two days and had a tendency to interfere with the administration of justice. The current offence, by contrast, was a brief comment made in reliance on a major newspaper's prior publication and had no such tendency. The court also rejected the comparison with penalties imposed on another broadcaster for interviewing a juror, finding that offence categorically more serious.
On the section 10 analysis, the court applied the four statutory factors (character, triviality, extenuating circumstances, and any other relevant matter) as a non-exhaustive and disjunctive list. The broadcaster's good character references from prominent individuals, his charitable work, the extenuating circumstance of having relied on the Daily Telegraph's prior publication, and the absence of any realistic likelihood of reoffending all weighed in favour of dismissal. The court also noted that a recorded conviction would carry permanent disclosure consequences given the broadcaster's extensive travel.
Orders Made
- The appeal of Alan Belford Jones is upheld; the offence is found proved but the charge is dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.
- The appeal of Harbour Radio Pty Ltd (Sydney Harbour Radio Pty Ltd) is upheld; the offence is found proved but the charge is dismissed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.
Key Takeaways
- A finding that an offender acted honestly, even where the mistaken belief underpinning that honesty was unreasonable, can fundamentally alter the available and appropriate sentencing options.
- Under section 10 of the Crimes (Sentencing Procedure) Act 1999, the four factors a court must consider are disjunctive and non-exhaustive: the fact that an offence is not trivial does not preclude a dismissal without conviction, as confirmed by R v Paris [2001] NSWCCA 83.
- A section 9 bond is properly characterised as an alternative to imprisonment rather than a standalone penalty; where imprisonment is not a realistic option on the facts, a section 9 bond is equally unavailable.
- Prior offences of the same general category do not automatically defeat a claim of good character at sentencing: the District Court here distinguished an earlier contempt conviction on the basis that it was materially different in nature, duration, and its tendency to interfere with the administration of justice.
- The permanent disclosure consequences of a recorded conviction (for example, obligations when travelling internationally) are a legitimate factor a court may weigh when considering whether to proceed without conviction under section 10.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 and 10(1)(a)
Cases:
- R v Paris [2001] NSWCCA 83