Scott v NPQ

The respondent was held in contempt of a presiding officer for failing to answer questions at a hearing of the Crime and Corruption Commission. In sentencing the respondent, the learned sentencing judge took into account time served on remand for unrelated offences. The appellant appealed against the sentence. The primary issue on appeal was whether the sentencing judge erred in taking into account the entirety of the respondent’s pre-sentence custody. The Court of Appeal held that pre-sentence custody can be taken into account in the appropriate case. President Sofronoff (with whom McMurdo JA and Boddice J agreed) explained that sentencing a person for a persistent contempt under the Crime and Corruption Act 2001 has both a punitive and coercive element. The coercive element seeks to compel compliance with the Court’s order. Ultimately, the Court held that the sentence was inadequate. The respondent was resentenced to a period of 10 months’ imprisonment.

Sofronoff P and McMurdo JA and Boddice J

27 May 2022

Background

At a hearing of the Crime and Corruption Commission (“Commission”) in July 2021, the respondent was charged with contempt of a presiding officer under s 198(1)(c) Crime and Corruption Act 2001 (“the Act”). [6]. The respondent’s contempt was certified to the Supreme Court pursuant to s 199(2). [7].

The Commission’s hearing related to a murder. [1]. The respondent refused to answer any questions, other than to provide his date of birth as well as details about his recent arrest, current imprisonment, and his family circumstances. [3].

During an exchange with the presiding officer, the respondent stated:

“I’m already incarcerated I’m already, I’m well aware of the consequences of this matter, so I have no intention of answering any further questions here today”. [3].

In March 2021, the respondent had been charged with drug trafficking. That charge was unrelated to the Commission’s hearing. [10]. The respondent had been held on remand since 11 March 2021. [10].

At the hearing of the contempt application, the respondent admitted his contempt. However, he refused to purge it. [7].

On 18 November 2021, the learned sentencing judge sentenced the respondent to 45 days imprisonment, having taken into account that the respondent had been in custody since 11 March 2021. [19].

The primary issue on appeal was whether Williams J erred in taking into account the entirety of the respondent’s pre-sentence custody. [20]. This was a question of statutory interpretation. [46].

The Appeal

Ultimately, the Court held that the “true position is that pre-sentence custody may be taken into account when punishing a contemnor by imposing a sentence of imprisonment but whether that should be done depends upon the circumstances of the particular case”. [58].

Here, the sentence of 45 days not only failed to vindicate the Commission’s authority, but validated the respondent’s challenge to that authority. [60]. The Court of Appeal varied the respondent’s sentence to a term of imprisonment of 10 months. [61].

In reaching this conclusion, the Court (Sofronoff P with whom McMurdo JA and Boddice J agreed) considered the regime that underpins the offence of contempt in the Act. The respondent was not charged with contempt at common law, but with contempt under the Act. [21]–[22].

Section 198(1)(c) provides that a person is in contempt of the presiding officer if the person “contravenes a provision of this Act relating to a hearing”. The offence of contempt therefore includes a failure of a person, under s 190(1), to answer a question without a reasonable or lawful excuse. [27].

Unlike “ordinary criminal statute law”, the Act provides for a tiered system of punishment for contempt. Section 199 provides that the maximum penalty for a person’s first contempt is 10 years’ imprisonment. A second contempt incurs a maximum penalty of 14 years’ imprisonment. The maximum penalty for three or more offences of contempt is life imprisonment. [29].

The subsequent contempt may arise in the same hearing (s 199(8B)(c)(d)) and may arise from a repeated failure to answer the same question (s 199(8C)(e)). [29]. Therefore, under the Act a person may be repeatedly punished for failing to answer the same question. [30]. This is distinct from the common law where sentencing for contempt is constrained by the principle that “a person must not be twice punished for the same offence”. [48].

President Sofronoff explained that sentencing a person for a persistent contempt under the Act has both a punitive and coercive element. The coercive element seeks to “compel […] the contemnor’s obedience to the Court’s order”. [35]. See also at [40], [51]. Courts “have taken strong measures in order to coerce compliance with an order of the Court”, including imprisonment until the contempt is purged. [37].

The ”coercive element does not exist under the common law of sentencing or under the Penalties and Sentences Act”. [51].

His Honour explained that the coercive element is “not remarkable” when one considers the objects of the Act. “The objects are to ‘combat and reduce the incident of major crime’ and ‘to reduce the incident of corruption in the public sector’”. These aims are achieved by having a “permanent commission” with “investigative powers” that are not available to the police service. [53]. See also at [23].

However, the nature of this type of power “imposes a heavy responsibility upon a court”. Contempt is a “distinctive offence attracting remedies which are sui generis”. [46]. “What is required of the chosen remedy is ‘that it be effective, no more but no less’”. [37].

A Hughes of Counsel