Citation: The Prothonotary of the Supreme Court of NSW v AS [2018] NSWSC 664
Court: Supreme Court of New South Wales
Date: 7 May 2018
Judge: Latham J
Background
The offender, a man aged 32, had previously pleaded guilty to serious drug supply offences and was sentenced to eight years' imprisonment. His sentence included a five per cent discount reflecting that his record of interview explaining coded communications with a co-accused would assist the Crown at that co-accused's subsequent trial.
The offender was subpoenaed to give evidence at the co-accused's trial in August 2017. He had not provided any undertaking to testify. When called on the voir dire (the preliminary process for assessing what evidence a witness could give before the jury), the offender refused to answer any questions beyond confirming his name and that he was in custody, citing fear for his own safety and that of his family.
The trial judge directed the offender on multiple occasions to answer questions and warned him of the contempt consequences. The offender persisted in his refusal. He was referred to the Supreme Court under section 203 of the District Court Act 1973 and subsequently pleaded guilty to one count of contempt in the face of the court.
Legal Issues
- What sentence was appropriate for a sustained and emphatic wilful refusal to answer questions in the face of a District Court judge?
- How should the objective factors from Wood v Staunton (No. 5) apply to this offender's specific circumstances?
- What discount should apply for an early guilty plea?
- Whether the sentence for contempt should run wholly consecutively on, or partly concurrently with, the offender's existing term of imprisonment?
Decision
Latham J applied the sentencing framework for contempt set out in Wood v Staunton (No. 5) (1996), which identifies the seriousness of the contempt, the offender's awareness of consequences, the actual impact on the relevant trial, the criminal context, the reason for the contempt, and whether contrition was expressed. Each factor was assessed in turn.
The contempt was found to be serious. The refusal was sustained and emphatic, made in direct defiance of repeated judicial directions, and constituted an affront to the administration of justice. The offender was clearly aware of the consequences, having been warned by the trial judge before the matter was referred to the Supreme Court.
The actual impact on the co-accused's trial was difficult to measure. The trial had been discharged for an unrelated reason, and the charges against the co-accused were ultimately no-billed, though the court found no evidentiary basis to connect that outcome to the offender's conduct. The court accepted that the offender's stated reason, fear for personal and family safety in the context of large-scale drug supply, was plausible. His expressed apologies during the voir dire were noted, as were significant subjective matters including his debilitating medical condition, diagnosed severe depression and anxiety, a lack of prior criminal history, and the fact that his entry into drug supply was linked to funding medical treatment.
The court declined the Crown's submission for full accumulation of the sentence, finding that the totality principle required a degree of concurrency even where the contempt was unrelated to the original offending. After applying a 25 per cent discount for the early guilty plea, the court arrived at a fixed term of nine months' imprisonment.
Orders Made
- The offender was convicted of contempt in the face of the court.
- A fixed term of nine months' imprisonment was imposed, commencing 1 November 2019 and expiring 31 July 2020.
Key Takeaways
- A sustained, emphatic refusal to answer questions after repeated judicial directions constitutes a serious contempt in the face of the court, warranting a custodial sentence even where the offender's motivation (fear of personal harm) is found to be plausible.
- The sentencing framework in Wood v Staunton (No. 5) remains the authoritative guide for contempt sentencing in New South Wales, identifying objective and subjective factors that must each be assessed.
- Where the actual impact of the contempt on the underlying trial is difficult to quantify, the court does not require proof of a direct causal link between the contemptuous conduct and the eventual outcome of proceedings.
- The totality principle applies when a court imposes a further sentence on an offender already serving a term of imprisonment, even where the new offending is entirely unrelated to the original offences. Full accumulation is not automatic.
- An early guilty plea to contempt attracted a 25 per cent discount, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- District Court Act 1973 (NSW), s 203
- Supreme Court Rules 1970 (NSW), Pt 55, r 13
Cases:
- Registrar of Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309
- Registrar of the Court of Appeal v Raad (NSWCA, 9 June 1992, unreported)
- Wood v Staunton (No. 5) (1996) 86 A Crim R 183