Attorney-General for the State of Victoria v Rich [1998] VSC 45

8. On that occasion I heard submissions from counsel on the question of penalty. I was told that, although Mr Rich has a criminal history inasmuch as he was before the court on that occasion, there were a number of charges some of which led to his conviction, and that on an unspecified date after 30 October 1995 he was convicted of a threat to kill which threat occurred before 26 June 1995, he has no relevant prior convictions and he has not previously been found guilty of a contempt of court. It seems to me, in accordance with conventional principles relevant to sentencing, that those matters are not properly prior convictions and I have had no regard to them.

11. When the matter was called on today counsel for the defendant raised for the first time a preliminary question that the originating motion was duplicitous inasmuch as it contained one count of contempt but particularised two separate counts. There is no substance in that allegation. It is apparent from the reading of the motion itself that two incidents are alleged, and that it is alleged that those incidents amount to contempt of court. I have proceeded on that basis.

14. I have in the reasons for my judgment set out the circumstances of the 26 June 1995 incident. In his statement to the court the defendant, at the outset, protested that he intended no disrespect. His intention, however, was to resist the decision of the trial judge that he be arraigned and that a jury be empanelled to try him. That was, on its face, an act of defiance by an accused who wished the trial to proceed only as and when he considered it appropriate. The reason he offered for this was that he was emotionally or mentally unwell. His conduct, however, and the reason given must be viewed in perspective. The jury empanelled for the purpose had, on Friday 23 June, determined that he was mentally fit to stand trial. Such a finding meant that the minimum requirements of The Queen v. Presser [1958] VicRp 9; [1958] V.R. 45 at 48 had been met.

17. Following this verdict the matter stood over till the following Monday for his arraignment and the empanelment of the jury. Counsel for the accused man on that morning renewed the application previously made on 19 June that there be a permanent stay or, alternatively, an adjournment of the trial on the ground of their client's mental condition. His Honour, notwithstanding the jury verdict, entertained the application and rejected it, observing "It is only in a rare case that a physical or mental condition would warrant the stay of proceedings". After referring to the jury verdict and noting that he, himself, had had the opportunity of hearing and evaluating the medical evidence and that of the accused man on the fitness application, His Honour observed:

"In my view, on the material thus before me, the accused man is a long way from being in a mental condition that would warrant the postponement of the proceedings, either on a temporary or permanent basis".

21. The statements of the accused man on 26 June must therefore be seen as a dissent from the verdict of the jury and the decision of the trial judge. As I had mentioned, the dissent was at the outset couched in apparently respectful terms. Regrettably, they then degenerated to insult and abuse. My examination of the video shows that this occurred as it became apparent to the accused man that the trial judge did not appear to be amenable to his wishes. In the event, His Honour did agree to defer the arraignment to the next day. To that extent, Mr Rich achieved his purpose.

24. Contempt of this kind is treated seriously because it often happens that a decision goes against one or other party in a trial. The unsuccessful party must accept the decision if the integrity of the trial process is to be maintained. This is not, as has been observed, out of some regard for the dignity of the court or the person of the judge, but to prevent undue interference with the administration of justice. Such interference offends the public good by weakening the authority of the court and its task of doing justice between members of the public or in the criminal process, between the State and the accused. See generally BHP v. Dagi [1996] VicRp 62; [1996] 2 V.R. 117 at 154-7, per Tadgell, J.A.; at 193-4, per Hayne, J.A.

"It is axiomatic that a party to a proceeding, or a potential party to a proceeding in any court of law in the state is entitled to expect that the proceeding will be determined according to law; and that the law will be duly and justly administered without undue interference".

31. The restraints imposed by this requirement fall in a criminal case, not only on the accused, but also for the benefit of the accused upon the prosecution or those concerned with it: R. v. McLachlan [1998], 2 V.R. 55.

34. The conduct of the defendant on 26 June was a calculated challenge to that authority and the penalty must reflect this.

37. I have set out in my reasons for judgment the transcript of the statements of Mr Rich made on 9 August. The contempt on this occasion was of a different character; it involved not abuse directed to the judge, but threats directed to the prosecutor. Again, it is the video rather than the transcript which conveys the flavour of the accused man's words. Their tone, the air of menace, the pauses and body language of the accused man are all there to be seen and heard. It shows that the statement was a vindictive and aggressive one. It was an improper and cowardly threat directed to an officer of the court in the discharge of her duties. The defendant's statements made afterwards in the cells show that his intent was to interfere with a trial with which he was not satisfied and to manipulate the court procedures in an illicit way to achieve his own ends.

40. Approaching my task of imposing an appropriate penalty I mention only to put to one side the provisions of the Sentencing Act 1991. Notwithstanding the line of authority in New South Wales that the Sentencing Act 1989 of that State governs the imposition of penalty for contempt of court: Attorney-General (NSW) v. Whiley (1993) 31 NSWLR 314 at 320-1; Young v. Registrar of Court of Appeal (1993) 32 NSWLR 262 at 218B, per Kirby, P. (but compare Handley, J.A., at 289A and Powell, J.A., at 292A; Wood v. Staunton (No 5) (1996) 86 A.Crim.R. 183, or for criminal contempt: Wood v. Galea (1996) 84 A.Crim.R. 274 at 276, per Hunt, C.J., I am not at all confident that the same could be said of the Victorian Sentencing Act 1991. In England, R. v. Palmer [1992] 3 All ER 289 and in South Australia: Nichols v. DPP [1993] SASC 3964; (1993) 66 A.Crim.R. 517, a contrary conclusion has been reached, although these cases may depend upon the terms of the appropriate legislation. To my mind there are serious difficulties in the way of accommodating the summary jurisdiction exercised by the court under the procedures established by O.75 to the requirements of the Sentencing Act 1991. This is not to say that the well-established sentencing principles which are found in that statute, and in particular in s.5(2) have no place in fixing the penalty for contempt of court.

43. There is no maximum penalty prescribed for contempt of court. As is demonstrated by the analysis of the Hunt, C.J., in Wood v. Galea (1996) 84 A.Crim.R. 274 at 277ff, little assistance is to be had for my purposes by a minute comparison between the penalties imposed in other cases. This is because the circumstances are infinitely variable as is the impact of different contempts upon the court process. Nevertheless, the cases show that the courts have had regard to a number of factors, and it is to these that I now turn.

46. First, is the seriousness of the conduct. To my mind the conduct of the defendant, and in particular that of 9 August 1995, was very serious. I need hardly say that the proper functioning of the courts depends to no small degree upon the readiness of counsel to discharge their functions. And they must be able to do so without fear that any person will cause them harm or discriminate against them for having properly performed this duty. No criminal justice system can expect to function effectively if persons in the dock are permitted to subject the court's officers or functionaries to conduct such at this. To seek to put the prosecutor in fear of her life was a most serious contempt.

49. I have had regard to the intent and purpose which accompanied the conduct. I have found that the defendant acted deliberately with the intent to interfere with the court process, in that he sought to manipulate and control it for his own ends.

52. I have had regard to the stress under which the defendant acted and to the particular emotional condition which he suffered, as described by the expert witnesses. His condition, however, was not such as would render the defendant an inappropriate vehicle for general deterrence.

55. I have had regard to the fact that counsel for the defendant stated before me that their client conceded that his behaviour was inappropriate. In this regard, such a concession, if it be intended to be understood as an expression of remorse, comes very late. I am mindful in this context of the very different impression given by his conversation in the cells on 9 August 1995. In my view this more truly reflects his state of mind.

58. I have had regard to the fact that the conduct took place against the background of the trial of a number of very serious offences. As the defendant observed to the trial judge, the prospect of a term of imprisonment for contempt is not so daunting for a man facing a very long sentence. It is apparent that he was aware of the likely consequence of what he was doing. For this reason, and in order to deter others who might find themselves similarly placed, the penalty must be severe.

61. I have had regard also to the fact that three years have passed since the acts in question. In certain circumstances it may well be a mitigating factor that the defendant has had this contempt proceeding hanging over his head for that time. It does, however, appear from the facts put before me that it was to a very large extent the result of proceedings brought and pursued by the defendant that this delay occurred.

64. In all the circumstances I conclude that the appropriate penalty for the contempt is a period of 18 months' imprisonment. Insofar as it is necessary or desirable that I do so, I indicate that I consider that the conduct on 26 June 1995 warrants a penalty of six months' imprisonment and that on 9 August 1995 warrants a period of imprisonment of twelve months. I would not be minded to direct that these periods be served concurrently in whole or in part because the conduct on 26 June was different in character, directed to a different person, and separated by a considerable period of time to that of 9 August.

(1) Declare the defendant is guilty of contempt of court in that:

(i) during his criminal trial at the County Court at Melbourne on 26 June 1995 he addressed the trial judge in a threatening, abusive and offensive manner.

(ii) during the same criminal trial on 9 August 1995 he threatened the prosecutor, Ms Carolyn Douglas.

(2) Order that the defendant be committed to prison for a period of 18 months, such period to commence upon the expiration of the period of imprisonment he is currently serving.

HIS HONOUR: Very well. You may remove the prisoner.