Citation: Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390
Court: Supreme Court of New South Wales
Date: 15 November 2023
Judge(s): Payne JA
Background
The respondent was a barrister admitted in New South Wales in 1995 whose practising certificate lapsed in mid-2021 after he failed to pay the required renewal fee. Following that lapse, injunctions were granted by Wilson J in August 2021 and Campbell J in September 2021 restraining him from engaging in legal practice, holding himself out as a barrister, and communicating with parties and courts in specific litigation on behalf of a client.
In April 2022, the respondent pleaded guilty to breaches of those injunctions and an undertaking. Beech-Jones CJ at CL (as he then was) imposed a nine-month term of imprisonment, suspended for three years: Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407.
Between June and August 2022, a period of approximately seven weeks, the respondent committed 13 further contempts. Twelve counts were framed as breaches of the August Injunction and one as a breach of the September Injunction. The offending conduct arose from legal work the respondent continued to perform for a client in connection with High Court special leave proceedings and a Local Court matter. The respondent pleaded guilty to all 13 counts.
Legal Issues
- Whether the suspended nine-month sentence imposed in 2022 should be lifted and activated following the fresh contempts.
- How the court should approach sentencing for the further breaches, including whether a Griffiths remand was appropriate (a procedure, drawn from Griffiths v The Queen (1977), allowing a court to defer sentencing to assess an offender's progress or condition before imposing a final penalty).
- What weight should be given to significant new psychiatric evidence indicating cognitive decline in the respondent.
- Whether the combination of the earlier suspended sentence and the new contempts warranted immediate full-time imprisonment.
Decision
Payne JA accepted that the 13 further contempts were serious: they occurred while the respondent was subject to a suspended sentence and they involved deliberate continuation of conduct the court had already punished. The judgment makes plain that the court regarded this pattern of behaviour as aggravating. However, the sentencing exercise was substantially affected by new psychiatric evidence.
Expert evidence, including reports from Dr Andrew Ellis and Adjunct Professor Tuly Rosenfeld, established significant cognitive decline in the respondent since the earlier proceedings. This evidence had not been before Beech-Jones CJ at CL and represented a material change in circumstances. The court treated the psychiatric material as highly relevant both to moral culpability and to the appropriate form of any order.
Rather than activating the existing suspended sentence or imposing immediate imprisonment for the fresh contempts, Payne JA ordered a Griffiths remand: the proceedings were adjourned to November 2024 to allow the respondent's medical and psychiatric condition to be assessed and treated further. The court expressly noted that this represented considerable leniency and warned that any further breach would leave no option but full-time imprisonment.
The costs application by the NSW Bar Association was also adjourned to the same date, reflecting the unresolved nature of the penalty proceedings pending the remand.
Orders Made
- Proceedings remanded for sentence to 13 November 2024, conditional on the respondent entering an agreement to comply with specified conditions, including:
- To be of good behaviour and comply with the existing injunctions made by Wilson J and Campbell J.
- To accept no contact from, and initiate no contact with, the relevant client.
- To attend East Sydney Doctors at least once every three months and accept all reasonable advice, treatment and referral.
- Upon receipt of his Medicare Card, to make an appointment within 7 days to attend the Memory and Cognition Clinic at Prince Alfred Hospital and accept treatment and supervision.
- To appear before the Supreme Court as directed.
- Written compliance reports to be provided to the plaintiff's representatives and the judge's associate by 9 February 2024 and 6 November 2024.
- Liberty to apply for variation of conditions on 3 days' notice.
- Plaintiff's application for costs adjourned to 13 November 2024.
- Respondent to sign and return a copy of the orders by 5pm on 17 November 2023.
Key Takeaways
- A Griffiths remand remains available in criminal contempt proceedings in the Supreme Court, allowing the court to defer final sentence where significant and recent psychiatric evidence warrants assessment of the offender's condition and progress.
- Significant new medical evidence, not available at an earlier hearing, can materially alter the sentencing calculus even where an offender has already received a suspended sentence and has since committed further contempts.
- Where a person commits fresh contempts while subject to a suspended sentence, the court treats that circumstance as a serious aggravating factor; the decision confirmed, however, that activation of the suspended sentence is not automatic and remains a matter for the court's discretion in light of all the evidence.
- Cognitive decline is a relevant consideration going to both moral culpability for contempt and the appropriateness of custodial orders, particularly where expert evidence supports a causal connection between the decline and the offending behaviour.
- The Supreme Court indicated in clear terms that any further breach would result in full-time imprisonment, illustrating the limits of the leniency extended through a Griffiths remand in a contempt context.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Law 2014 (NSW)
- Supreme Court Rules 1970 (NSW)
Cases:
- Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407
- Griffiths v The Queen (1977) 137 CLR 293
- Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
- Veen [No 2] v The Queen (1988) 164 CLR 465
- Muldrock v The Queen (2011) 244 CLR 120
- Stanizzo v Fregnan [2021] NSWCA 195
- Dowling v Prothonotary of the Supreme Court (2018) 99 NSWLR 229
- Australian Securities and Investments Commission v Matthews [2009] NSWSC 285
- Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90
- Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28
- Hearne v Street (2008) 235 CLR 125
- Lewis v Ogden (1984) 153 CLR 682