Citation: In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141
Court: Supreme Court of New South Wales
Date: 14 August 2015
Judge: Wilson J
Background
The contemnor was serving a sentence of 23 years imprisonment with a 17-year non-parole period after pleading guilty to murder and two armed robbery offences. On 13 March 2015, he was brought before Wilson J to give evidence in the sentence proceedings of a co-offender, Raymond Kennedy, who disputed the factual basis of his own murder conviction. The Crown called the contemnor because a recorded conversation placed him as a witness to the circumstances of the killing.
When brought into the courtroom, the contemnor refused to take an oath or affirmation, used repeated profanities directed at court officers, and behaved in a threatening and aggressive manner. He was removed from the courtroom for the safety of those present. Later that day he was given an opportunity to purge his contempt but declined, refusing even to re-enter the courtroom.
The contemnor was charged with three counts of contempt in the face of the court: refusing to take an oath or affirmation (Count 1), refusing to answer questions (Count 2), and threatening unlawful violence against a court officer (Count 3). He initially pleaded not guilty to all three counts. He later entered pleas of guilty to Counts 1 and 3, and Count 2 was withdrawn.
Legal Issues
- Whether the contemnor's conduct on 13 March 2015 constituted contempt of court in the face of the court on Counts 1 and 3.
- What sentence was appropriate for those contempts, having regard to:
- The seriousness of the conduct and its tendency to interfere with the administration of justice
- The contemnor's existing lengthy custodial sentence and the totality principle
- The utilitarian value of the guilty pleas
- The need to preserve a meaningful parole period
Decision
Wilson J convicted the contemnor on both counts. The refusal to take an oath or affirmation had a real tendency to interfere with the administration of justice, particularly in circumstances where the co-offender's sentence proceedings depended on an assessment of disputed facts that the contemnor's evidence may have informed. The threats of violence against a court officer compounded the seriousness of the conduct and constituted a direct challenge to the authority and safety of the court.
On sentence, the court considered that the contemnor's conduct was serious but that the guilty pleas attracted a utilitarian discount. Her Honour noted that the contemnor was already serving a very lengthy sentence, and the totality principle required that the additional penalty not be crushing in its overall effect. At the same time, a wholly concurrent sentence was rejected as inadequate given the distinct and serious nature of the contempts.
The court declined to impose a non-parole period, noting the importance of preserving a meaningful parole period to assist the contemnor's eventual reintegration into the community. The structure of the sentence was designed to retain approximately five years of available supervised parole at the back end of his overall period of custody. Her Honour acknowledged that applying the totality principle had the effect of artificially reducing the sentences that would otherwise have been appropriate.
An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was considered appropriate. The individual sentences assessed were two years for Count 1 and 18 months for Count 3 (each after the utilitarian discount and rounding), yielding an aggregate term of three years.
Orders Made
- The contemnor was convicted of two counts of contempt of court.
- Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, sentenced to imprisonment for 3 years, commencing 7 August 2028 and expiring 6 August 2031.
- No non-parole period specified.
Key Takeaways
- Contempt in the face of the court encompasses both a witness's refusal to take an oath or affirmation and the making of physical threats against court officers, where each conduct has a real tendency to interfere with the administration of justice.
- A consecutive sentence, rather than a wholly concurrent one, was required to reflect the seriousness of contempts that constituted distinct criminality unrelated to the underlying offending for which the contemnor was already imprisoned.
- Under the totality principle, a very lengthy existing sentence operates to constrain the effective additional penalty for subsequent contempts, though Wilson J regarded this as an unavoidable consequence rather than a reason to impose no real punishment.
- Preserving a meaningful parole period was treated as a significant sentencing consideration, with the court declining to specify a non-parole period to avoid reducing supervised release to a merely nominal period.
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was available and appropriate where two counts of contempt were sentenced together.
Legislation and Cases Referenced
Legislation
- Bill of Rights 1688 (UK)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 45
- Evidence Act 1995 (NSW)
- Supreme Court Rules 1970 (NSW)
Cases
- Attorney-General for NSW v Whiley (1993) 31 NSWLR 314
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Khoury v R [2011] NSWCCA 118
- Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527
- Prothonotary v Wilson [1999] NSWSC 1148
- R v Cartwright (1989) 17 NSWLR 243
- R v Dodd (1991) 57 A Crim R 349
- R v Ehrlich [2012] NSWCCA 38
- R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304
- R v Raymond Kennedy [2014] NSWSC 1921
- R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132
- Re Johnson (1887) 20 QBD 68
- Re Steven Smith [2015] NSWSC 832
- Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
- Smale v R [2009] NSWCCA 220
- Smith v R (1991) 25 NSWLR 1
- T v R [2015] NSWCCA 28