THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559 2 September 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2010-404-8559BETWEEN THE SOLICITOR-GENERAL OF NEWZEALANDApplicantAND VINCENT ROSS SIEMERRespondentCourt: MacKenzie JSimon France JCounsel: M F Laracy and G J Robins for ApplicantT Ellis and G K Edgeler for RespondentJudgment: 2 September 2011SENTENCING NOTES OF THE COURT DELIVERED BY MACKENZIE J[1] In our judgment delivered on 4 July 2011 at para [70], we upheld the Solicitor-General's application to find Mr Siemer in contempt of Court.1 We now formally enter a finding that Mr Siemer is in contempt of Court. We must now address the question of penalty.[2] The Solicitor-General submits that the maximum penalty of three months imprisonment is appropriate given the overall seriousness of the conduct constitutingthe contempt, and the respondent's history of like offending. We record that Mr Ellis was instructed not to make submissions on sentencing.[3] The first question for consideration is the form of the appropriate penalty and whether imprisonment is, as the Solicitor-General submits, appropriate. The Solicitor-General submits that the gravamen of Mr Siemer's conduct lies in his1 The Solicitor-General of New Zealand v Siemer HC Wellington CIV-2010-404-8559,4 July 2011.deliberate and public defiance of Winkelmann J's order made in respect of a criminaltrial currently before the Court. It is right that we should record that the Solicitor-General does not assert that the breach of the order has had in fact consequences of any actual interference with a fair trial in the proceedings in which the order was made. Counsel further submits that it is of obvious importance to the due administration of justice and public confidence in the justice system that Court orders of all types are meticulously observed. We endorse that submission.[4] Counsel submits that the breach was not simply deliberate but exhibits a highdegree of arrogance and defiance in respect of the judge's order and that accordswith the view that we take of the matter. The breach was comprehensive in that the material was published on the internet as we have found. Counsel submits that Mr Siemer's history of breaching Court orders and his determined intransigence put this case into the most serious category of its type requiring a sentence at the end of the range.[5] In ordinary circumstances it may well be that a sentence of imprisonment would be a disproportionate response to a breach of an order. We are however satisfied that in this case the circumstances are such that no other response will adequately reflect the seriousness of the breach and the need for deterrence.[6] The Solicitor-General describes Mr Siemer as having established himself as an obdurate and persistent offender and lists a number of previous contempt proceedings in which he has been involved. Three of those result from proceedings in which Mr Siemer was himself a party. We attach limited weight to those actions in fixing penalty. Proceedings in which a litigant breaches an order made against that litigant are different in nature from proceedings where there is breach of a non publication order binding on non parties. The degree of emotion and of personal involvement in the proceedings can in some cases distort judgment to an extent that would mean that we would hesitate to attach any significant weight to those matters.[7] There is however an instance of a previous action in relation to this very same proceeding which is relevant. The Solicitor-General had applied for Mr Siemer to be committed for contempt for breach of a suppression order made byWinkelmann J in this same trial. That was resolved by Mr Siemer on the morning of the contempt hearing removing sufficient material from his website to satisfy the Solicitor-General that it was appropriate to discontinue the contempt application. However, indemnity costs were awarded. That award was upheld in the Court of Appeal and in the Supreme Court. It is right that I should record that both Simon France J and I sat on the panel in the Court of Appeal which considered that matter. The Supreme Court observed:2The proposed appeal is unarguable. Mr Siemer was held to be in breach of the High Court's order for suppression and seems to have acted with deliberation in publishing the material. The costs order was permissible in terms of the High Court Rules. Although Mr Siemer has not been held to be in contempt on this occasion, he has been held to be in breach of a court order and, if he had not removed the particular portions of the websites, he would surely have been found to be in contempt. Mr Siemer elected to sign an undertaking which implicitly admitted the weakness of his position. The Solicitor-General then took the sensible course of discontinuing the contempt application as his objective had been achieved but signalled at the time that costs would still be pursued.[8] It is clear from those remarks that had the materials not been removed he would surely have been found to be in contempt. So for this reason we regard the present application as the second occasion in which, in an essentially similar capacity, Mr Siemer has committed a contempt.[9] For that reason we are satisfied that no response short of imprisonment would be appropriate in this case. We add, though we do not attach significant weight to this fact, that the alternative remedy of a fine would be unlikely to be able to be effective given the current bankruptcy of Mr Siemer. But it is not on that basis that we consider that imprisonment is appropriate. We reach that conclusion for the reasons that I have given.[10] As to the term of imprisonment, the Solicitor-General submits that it should be the maximum term of three months. We do not consider that a sentence at that level is required. We take into account as a mitigating factor that Mr Siemer did remove the judgment from his website after our judgment had been delivered. In all2 Siemer v The Solicitor-General [2011] NZSC 4 at [4].the circumstances we consider that the appropriate term of imprisonment is six weeks and that is the sentence which we impose.[11] Because Mr Ellis has signalled very clearly an intention to appeal against our substantive decision, and potentially against this decision, we think that it would be appropriate to stay the sentence for a period of two weeks to enable an appeal to be lodged. Thereafter any question of a further stay would be in the hands of the Court of Appeal.[12] By way of addendum to our remarks as delivered in Court, we add that, if an appeal is lodged within that two week period, the stay will continue until further order of the Court of Appeal."A D MacKenzie J" "Simon France J"Solicitors: Crown Law Office, Wellington for ApplicantT Ellis, Barrister, Wellington, for Respondent.