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February 4, 2011
As West Australian Chief Justice Wayne Martin sentenced four Finks bikie members to jail for maintaining their code of silence out of fear of retribution, he was told he had "no idea about the streets".
The motorcycle gang members had refused to answer questions or to be sworn in at a secret Corruption and Crime Commission (CCC) hearing into organised crime last year.
The Finks members Tristan Allbeury, Stephen Silvestro, Troy Crispin Smith and Clovis Chikonga had been called in relation to a brawl between them and rival gang the Coffin Cheaters.
The brawl had broken out at the Perth Motorplex on October 3 and left Silvestro and Smith with injuries.
All four men had kept quiet during the CCC hearing and were charged with contempt of court for refusing to be sworn in to give evidence.
Allbeury was subsequently charged with insulting Commissioner Len Roberts-Smith by refusing to answer 18 separate questions before telling him to "f*** off" and "get f****d".
The lawyer for the four bikies said they refused to provide evidence to the CCC because they feared retribution should they co-operate.
Chief Justice Martin told the men that if they wished to use fear as a mitigating factor they would have to show such a fear existed.
None of the men provided such evidence.
"I cannot pass sentence on the basis that the contemnors were motivated by a fear of retribution, or that such a fear was well-founded because there is simply no evidence to support such a finding," Chief Justice Martin told the WA Supreme Court on Friday.
As a result, 29-year-old Allbeury, who the court was told suffers from bipolar disorder, was sentenced to two years and three months for his actions.
While the sentence was handed down, Allbeury angrily told Chief Justice Martin: "You can f*** off, you're a f*****g spastic".
"You live in a dream world. You live in a fairy world. You don't have any idea about the streets."
Family and friends burst into tears at the sentence with one woman shouting abuse in court.
Chikonga, 24, Silvestro, 42, and Smith, 37, were all given two-year sentences for refusing to answer questions or to be sworn in to give evidence.
Although three of the men are fathers and had argued jail sentences would adversely affect their families, Chief Justice Martin said that given such "contumacious contempt" personal factors meant little.
"Because the contempts committed by each contemnor involve a deliberate, persistent and calculated defiance of the authority of the state to investigate organised crime, deterrence has great significance," the judge said.
Chief Justice Martin said the sentence must be such as to "discourage prospective witnesses from making a calculated choice to suffer a penalty rather than give evidence".
In sentencing the men, he left open the chance for them to be released from jail early if they decided to end their code of silence.
"It is never too late, and if any of the contemnors has a change of heart and co-operates with the Commission in its investigation, it would be open to that person to apply for an early discharge."
He added: "Each contemnor has been, and will continue to be in a sense, his own jailer".
None of the four are eligible for parole.
© 2011 AAP