Applicant v Respondent

1 On 7 February 2014, the respondent pleaded guilty to a charge of contempt under a written certificate of charge issued in the name of the Chief Examiner pursuant to s 49(2)(a) of the Major Crime (Investigative Powers) Act 2004 (Vic) ("the MCIP Act"). The contempt was constituted by the respondent's refusal to be sworn or to make an affirmation when attending before the Chief Examiner in answer to a witness summons on 26 September 2013 (see s 49(1)(b)).

2 Before imposing sentence, I shall explain the history of and factual background to the matter and then turn to other factors relevant to penalty.

3 On 15 April 2013, King J made a coercive powers order under the MCIP Act in respect of two organized crime offences - namely, two attempted murders. The coercive powers order was to remain in force for a period of 12 months.

4 On 5 September 2013, the Chief Examiner issued a witness summons to the respondent pursuant to s 15 of the MCIP Act. The summons required the respondent to attend for examination before the Chief Examiner on 26 September 2013, and from day to day unless excused or released from further attendance, to give evidence in relation to the organized crime offences. The respondent was personally served with the summons on 14 September 2013.

5 The examination hearing of the respondent commenced on 26 September 2013. The respondent was not legally represented. The transcript of the hearing discloses the following:

a) When advised by the Chief Examiner that he was entitled to have legal representation at the hearing, the respondent said he did not think that would be necessary because he was not going to answer any questions (T 4).

b) Later, the respondent said that, in his view, "this [i.e. his being here] is just a big mistake", that he did not know anything about the matter and that he was not going to talk about it (T 9-10).

c) Earlier, the Chief Examiner advised the respondent that it is an offence, for which he would be arrested and taken before this Court to be dealt with as a contempt, to refuse to take an oath or make an affirmation (T 5). That advice was repeated later in the hearing (T 22).

d) The Chief Examiner also advised that, whilst it would be a matter for this Court and would depend on the particular circumstances of the case, it was probable that a contempt of this kind would result in a period of immediate imprisonment for "a minimum of one month up to a much larger sentence" (T 19-20).

e) Ultimately, the Chief Examiner directed the respondent to take an oath or make an affirmation. The respondent declined to do so. (T 28-30.)

f) When asked by the Chief Examiner whether he had any reasonable excuse for so declining, the respondent said, "I think that - or I know that I got nothing to do - I know that I don't know anything about this subject and I don't want youse to twist my words around or things like that [and that's] why I don't want to take the oath today" (T 30).

6 The respondent was then directed to remain in a room at the Chief Examiner's office, which he did, while the certificate of charge and arrest warrant were drawn up. When the respondent was brought back before Chief Examiner, he was asked whether he had had a change of mind. The respondent answered that his position was still the same.

7 The respondent was then arrested by a police officer and brought before this Court forthwith (the same day) to be dealt with according to law, as required by s 49(4) of the MCIP Act. The respondent was not represented. He was granted bail and the matter was adjourned for mention on 25 October 2013.

8 At the mention on 25 October 2013, the respondent was represented by a solicitor. He indicated that he would be pleading guilty to the charge. The plea hearing was listed for 7 February 2014. Bail was continued.

9 On 7 February 2014, the respondent was arraigned as follows:

"QF, you are charged with contempt in that you did, on 26 September 2013, before the Chief Examiner, refuse to be sworn or to make an affirmation. How do you plead, guilty or not guilty?"

11 The same day, Mr Dinelli, who appeared for the applicant, opened the case and made submissions as to how I should approach the matter. Mr Tovey QC, who appeared for the respondent, made a plea in mitigation and responded to Mr Dinelli's submissions.

12 At the conclusion of the hearing, there being no application for bail and an acceptance by the respondent that an immediate term of imprisonment was warranted, I remanded the respondent in custody pending sentence.

13 Whilst s 49(1)(b) of the MCIP Act creates the particular offence of contempt of the Chief Examiner of the type committed by the respondent, the Act does not specify any particular penalty or maximum penalty for that offence.

14 Section 49(10) provides that a contempt of the Chief Examiner is to be dealt with by this Court as if (a) the contempt were a contempt of an inferior court and (b) the certificate of charge were an application to this Court for punishment for the contempt.

15 The parties proceeded on the assumption that the penalty for the present offence is at large. They were right to do so (see, e.g., Allen v The Queen [2013] VSCA 44 at [54] per Priest JA, with whom Maxwell P and Weinberg JA agreed).

16 It was submitted by Mr Dinelli that the five-year maximum penalty provided by s 36 of the MCIP Act for the specific offence of refusing or failing to take an oath or make an affirmation, when required to do so by the Chief Examiner, is a useful comparator for the present offence. Mr Tovey agreed. So do I.

17 Both parties made submissions on penalty by reference to several (but not all) of the factors listed by Dunford J in his judgment in Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185, as well as to other factors not mentioned in that list. I shall follow suit and only address potentially relevant matters.

18 One measure of the seriousness of the contempt is that the respondent's refusal to be sworn or affirmed arose in the context of an investigation into serious offences - namely, those of attempted murder. Further, it is plain that the respondent made a considered decision to decline to be sworn or affirmed.

19 However, the contempt was not committed in an insulting, boisterous or hostile manner. Rather, the respondent simply politely declined to be sworn or affirmed.

Whether contemnor was aware of the consequences to himself of his contempt

20 The respondent was made aware by the Chief Examiner that an immediate gaol sentence was the probable result of his contempt. The Chief Examiner also gave the respondent a chance to reconsider his position before finally directing him to take the oath or make an affirmation and, even when he declined to do so, gave him a further chance to change his mind, which he declined. The respondent also had legal advice prior to attending the examination. Thus, he was fully aware of the potential criminal sanction for his contempt before it was committed.

The actual consequences of the contempt on the relevant trial or inquiry

21 Mr Dinelli submitted that, when regard was had to the information contained in the particulars of the Chief Examiner's order for the issuing of a witness summons and to the fact that King J had made a coercive powers order, I should be satisfied beyond reasonable doubt that, had the respondent been sworn or affirmed, he would have been able significantly to assist in the investigation of the organized crime offences.

22 As I explained on the hearing of the plea, I reject that submission. There are several reasons.

a) First, when a judge of this Court makes a coercive powers order upon the strength of affidavit material filed by a police officer, he or she applies the civil standard of proof to the question whether the criteria for the making of such an order are satisfied, whereas a judge being asked to find an aggravating factor against an accused on sentence will be applying the criminal standard of proof to a different question.

b) Secondly, the information in the particulars of the Chief Examiner's order was so heavily redacted, and thereby denuded of meaning, that I considered myself unable to be satisfied on the criminal standard of the conclusion Mr Dinelli urged.

c) Thirdly, whilst Mr Dinelli offered to provide an un-redacted version of the document if Mr Tovey were prepared to undertake not to discuss the contents thereof with his client, Mr Tovey, understandably, was not prepared to give such an undertaking. Thus, I did not see the un-redacted version.

d) Fourthly, however, even if I assumed in the Chief Examiner's favour the types of thing I expected to be hidden from view, I still would not have been satisfied beyond reasonable doubt of the conclusion Mr Dinelli urged. As Mr Tovey rightly pointed out, the evidence was thin, at best. Further, this was not one of those categories of case in which it could be readily inferred on the criminal standard that the witness would have had significant information to give. Mr Tovey gave the example of Chief Examiner v Camilleri [2006] VSC 442, where the witness was found at a property involved in cannabis production and obviously had knowledge of the offences and persons being investigated; and his failure to give such evidence denied the authorities of significant information in the investigation of those others. The material in the present case disclosed no more than suggestions that the respondent might be expected to know some things of significance about others.

e) Fifthly, the respondent told the Chief Examiner that he had no knowledge of the matters being investigated. Having observed the respondent throughout these proceedings, I am not able to reject that assertion beyond reasonable doubt.

23 I should add two things: First, Mr Dinelli explained that the Chief Examiner's attempt to prove this factor in the present case was prompted in part by the remarks of Coghlan J in a case of this nature, where his Honour pointed out that no material was produced indicating the utility of the information the witness could have provided. I simply say that the Chief Examiner should not be discouraged from seeking to produce such material in appropriate cases. But the nature of the Chief Examiner's process - that of investigation as opposed to trial - may mean that, at least in some cases, of which the present is one, there will be limits to establishing whether the witness who declines the oath or affirmation would have had anything significant to say.

24 Secondly, however, I do accept, as I think I must, on the criminal standard that the respondent's contempt at least had the consequence that the Chief Examiner's lines of inquiry through the respondent were frustrated.

25 At the hearing, the respondent said that he had no knowledge of the relevant matters. Despite the fact that I am not satisfied on the criminal standard of the aggravating factor that the respondent would have been able significantly to assist in the investigation of the organized crime offences, given the material before me, I am not satisfied on the balance of probabilities of the mitigating factor that he in fact had no significant information to give.

26 On the plea, a psychological report was tendered. The report asserted that the respondent was concerned for his and his family's safety if he were to answer questions at the examination. At the hearing itself, the respondent first indicated some general concern (T 9); and then appeared to reason that, because he did not know anything and was not intending to answer questions, there was no concern (T 10). Despite this equivocation, I am prepared to accept, on the civil standard, that the respondent was concerned about his and his family's safety if he were to answer questions at the examination. I am also satisfied that he has ongoing fears for his and his family's safety generally, and his own safety in gaol, simply because of the fact that he was asked to answer questions by the Chief Examiner and the way in which that fact might be perceived, or misperceived, by ne'er-do-wells.

27 Whilst there has been no apology for the contempt, the respondent indicated an intention to plead guilty, and did plead guilty, at the earliest practicable time. Further, there was no shilly-shallying about his guilt. It was apparent from the outset that the respondent knew that what he was doing was unlawful and that he would accept responsibility for breaking the law. In my view, the plea of guilty is a substantial mitigating factor.

28 The respondent, who is aged in his late-20s, has a criminal history, albeit of modest proportions. In 2008, he received an intensive corrections order for four months for possession of a gun and ammunition and related storage offences. In the same year, he was fined for possessing illegal drugs, including amphetamine and methylamphetine. In 2009, he was fined for assaulting and resisting police. In 2012, he was fined for driving offences. In 2013, he was fined for using a prohibited weapon and possessing a drug of dependence.

29 In my view, the respondent has excellent prospects of rehabilitation. Whilst he had some early brushes with the law, I am satisfied that he has put that behind him and is now doing his best to work hard, to provide for his wife and children and thereby to contribute to the community. It was apparent to me each time he came to this Court that the respondent was concerned to provide for and protect his young family. He conducted himself with courtesy and dignity before both the Chief Examiner and this Court. He does not hide the fact that he was a bit of a tearaway involved in drug use earlier in his life. But now, or at least until he went into custody, he has been working long hours in a good job and keeping away from that seedy world. He has improved his skills in recent times and appears to be the type of worker many would want to employ. As Mr Tovey submitted on the plea, he is at a point now where he will contribute to the community if given the opportunity to do so.

30 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

31 General deterrence is a paramount sentencing consideration in offences of this nature. As T Forrest J explained in sentencing for an offence of this nature in 2011, whilst the MCIP Act is a powerful weapon in the community's armoury against serious crime, it can only remain powerful if those refusing or failing to comply with its examinatory provisions understand that stern punishment awaits them.

32 In my view, an element of denunciation is also a relevant purpose in sentencing for this offence. The community should understand that courts denounce deliberate contempt of the Chief Examiner. That said, since I accept that the respondent was motivated by a concern for his and his family's safety, his moral culpability is reduced somewhat, which in turn lessens the need for denunciation.

33 Whilst specific deterrence must be given some weight, I have given it a good deal less weight than otherwise on account of the respondent's early plea of guilty, the manner in which he has conducted himself throughout these proceedings and his strong prospects of rehabilitation.

34 Those same factors compel me to the conclusion that it is very unlikely that the respondent would re-offend. I assume that the Chief Examiner will not seek to examine him again about this matter. Accordingly, I can see no need for any weight to be given to protection of the community as a sentencing purpose.

35 Rehabilitation is an important consideration in the present case. As I indicated earlier, the respondent is a man who had some early brushes with the law but has put that behind him and is now doing his best to work hard, to provide for his family and thereby to contribute to the community. He should be encouraged in those endeavours.

36 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied those principles when fixing sentence.

37 In so far as I can determine them, I have had regard to current sentencing practices for the offence charged. In the area of sentencing, it is almost always difficult usefully to compare other cases. However, I have been assisted by a survey of the various authorities and reasons for sentence which were handed up, particularly those dealing with the particular offence under consideration and its counterparts.

38 Prior to the plea hearing, in accordance with prevailing authority in this State, I invited submissions from the parties on the appropriate range of sentence. Both parties complied and made submissions based on a survey of authorities and the application of principles to the facts at hand. Mr Dinelli submitted that the appropriate sentencing range was between six and 12 months' imprisonment. Mr Tovey submitted that the appropriate range was between one and six months' imprisonment.

39 After the plea was concluded, the High Court handed down its decision in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323. In accordance with that decision, I have ignored the submissions of the parties on range. However, I have had regard to the various cases to which they referred me both for the principles for which they stand and in order to determine, so far as I can, where current sentencing practices lie for contempt of the Chief Examiner.

40 Balancing all factors as best I can, I am of the view that the respondent must be convicted of contempt of the Chief Examiner and sentenced to be imprisoned for ten weeks.

41 Pursuant to s 18 of the Sentencing Act, I declare that the respondent has served 33 days, including today, in custody by way of pre-sentence detention.

42 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for his plea of guilty, I would have imposed on the respondent a sentence of 16 weeks' imprisonment.