Citation: Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087
Court: Supreme Court of New South Wales
Date: 9 August 2016
Judge: Adams J
Background
The contemnor was a party to defamation proceedings in the District Court of New South Wales. During those proceedings, a witness named Mr Gowda had provided an affidavit addressing a key factual issue: whether the contemnor had asked him how to delete a Gmail account, which was relevant to whether the contemnor had sent a particular email.
On 26 August 2013, shortly after a mediation of the defamation proceedings concluded, the contemnor made two telephone calls. In the first, he threatened Mr Gowda directly, warning him of serious consequences relating to alleged tax, immigration, and plagiarism matters unless he withdrew his affidavit. In the second, he telephoned a friend of Mr Gowda's and directed him to pass on a message: that Mr Gowda must withdraw the affidavit by midday the following day or face complaints to the ATO and immigration authorities.
The Prothonotary of the Supreme Court commenced contempt proceedings against the contemnor in June 2014. After a contested hearing during which the contemnor challenged the witnesses' accounts, he pleaded guilty in November 2015, once the hearing resumed following an adjournment.
Legal Issues
- What is the appropriate penalty for a contempt of court constituted by threatening a witness during pending defamation proceedings?
- How should the court approach sentencing for a common law contempt offence where the penalty is "at large" (that is, not fixed by statute)?
- What analogous statutory offences should guide the sentencing range?
- What weight should be given to the contemnor's personal circumstances, plea of guilty, and other mitigating factors?
- In what form should any custodial sentence be served?
Decision
Adams J found that the contempt was objectively serious. Threatening a witness with potentially catastrophic personal and professional consequences in order to pressure him to withdraw an affidavit struck directly at the integrity of the justice system. The conduct fell within the kinds of conduct addressed by ss 322 and 323 of the Crimes Act 1900 (NSW), which carry maximum penalties of 10 years and 7 years imprisonment respectively. Adams J drew on Court of Criminal Appeal authority to the effect that conduct intending to cause a witness to withhold true evidence normally warrants some form of custodial sentence.
Because contempt of court is a common law offence, the penalty is "at large," meaning no maximum is fixed by statute. Following the approach confirmed in Blackstock v R [2013] NSWCCA 172 and R v Abdallah [2014] NSWSC 320, the court treats analogous statutory offences as reference points rather than hard limits. Adams J applied this framework and identified ss 322 and 323 of the Crimes Act as the appropriate analogues.
On mitigating factors, Adams J accepted that the contemnor had pleaded guilty (though late in proceedings, after a contested hearing), had no prior criminal history, had contributed meaningfully to his family and the Indian community in Newcastle, and had suffered significant shame and humiliation as a result of the proceedings. Some discount was applied for the guilty plea, though the timing of the plea reduced its weight.
Balancing the objective seriousness of the offence against the mitigating factors, Adams J concluded that no penalty short of imprisonment was appropriate. A sentence of nine months imprisonment with a non-parole period of six months was imposed. However, taking into account the available assessment reports and the contemnor's personal circumstances, Adams J determined that the sentence should be suspended, with the contemnor released on condition of a good behaviour bond.
Orders Made
- A sentence of nine months imprisonment, with a non-parole period of six months, was imposed.
- Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), execution of the sentence was suspended for nine months.
- The contemnor was released on condition that he enter into a bond to be of good behaviour for a term of nine months.
Key Takeaways
- Threatening a witness to induce the withdrawal of an affidavit constitutes contempt of court with a real tendency to interfere with the administration of justice, and the court treated it as a grave matter warranting denunciation, punishment, and general deterrence.
- Because contempt of court is a common law offence carrying a penalty "at large," the Supreme Court applied the approach confirmed in Blackstock v R and R v Abdallah, using analogous statutory offences under ss 322 and 323 of the Crimes Act 1900 (NSW) as sentencing reference points, while not treating the statutory maximum as an absolute ceiling.
- A late guilty plea, entered only after a contested hearing and an adjournment, attracted a reduced discount compared with an early plea, consistent with the principles in R v Thomson; R v Houlton [2000] NSWCCA 309.
- Where conduct targeting witnesses is objectively serious, some form of custodial sentence is normally appropriate, as confirmed by Warby v The Queen [2007] NSWCCA 173 and R v Burton [2008] NSWCCA 128, even where the ultimate sentence is suspended.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court retains the discretion to suspend execution of a sentence of imprisonment where personal circumstances and available assessment reports support that course.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedures) Act 1999 (NSW), ss 12, 22
- Crimes Act 1900 (NSW), ss 322, 323
- Mental Health (Forensic Provisions) Act, s 32
- Supreme Court Rules 1970, Part 55 Rule 13
Cases
- Blackstock v R [2013] NSWCCA 172
- Engert (1995) 84 A Crim R 67
- Prothonotary of the Supreme Court of New South Wales v Chan (No 15) [2015] NSWSC 1177
- R v Abdallah; In the matter of John Leger [2014] NSWSC 320
- R v Burton [2008] NSWCCA 128
- R v Smith (1991) 25 NSWLR 1
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Warby v The Queen (2007) 171 A Crim R 575; [2007] NSWCCA 173