Director of Public Prosecutions v Johnston [2004] VSCA 150

Director of Public Prosecutions v Johnston [2004] VSCA 150 - VSCA 2004 case summary — Zoe

[6]

Before examining further the ground and particulars relied upon and the opposing contentions put in relation to this appeal, it is both desirable and necessary to set out some detail of what occurred on the day in question, 15 June 2001, when all four offences took place. They grew out of an industrial dispute, conceded by the prosecution to have been genuine, between, on the one side, two unions, the Australian Manufacturing Workers Union ("AMWU"), of which Mr Johnston was the Victorian State Secretary, and the Electrical Trades Union, and, on the other side, Johnson Tiles Pty. Ltd. ("Johnson Tiles") and its management. Somewhat over a month earlier Johnson Tiles announced that it had decided to reorganise its operations and in particular to make redundant some 80 employees and staff, all with the intention of "out-sourcing" the work performed by those employees to persons on the books of another company, Skilled Engineering Pty. Ltd. ("Skilled Engineering"), which Johnson Tiles intended should provide casual or part-time staff in their stead. There had been a number of meetings between the unions and the companies but at one of them Mr Johnston said there would be "trouble" and that the AMWU would set up a picket line outside Johnson Tiles. On 8 June 2001 29 maintenance workers were in fact made redundant and immediately thereafter a picket line was put in place. A few days later a further threat was made by the respondent to Mr Triggs, the State Manager of Skilled Engineering, and on 14 June Mr Johnston told Mr Tony Fitzgerald, the National Industrial Relations Manager of Skilled Engineering, that they would "just have to kick the shit out of Skilled then". It was on the same day that members of the union had a meeting, which the learned judge was satisfied that Mr Johnston did not attend, but at which they agreed on a plan to invade the Johnson Tiles' factory at Bayswater. There they would try to identify staff from Skilled Engineering who were taking the place of the sacked maintenance workers, and then to photograph them as being "scabs" and put their photographs on what was to be called a "shame board".

[7]

Although Mr Johnston had not been present at that time, the learned judge was satisfied beyond reasonable doubt that by the following morning he was well aware of the plan to enter Johnson Tiles' premises and to photograph the people out-sourced by Skilled Engineering. In the event, by the time he addressed those union members who had assembled outside the factory at 7.30 a.m., he had a balaclava and a camera for the purpose of the incursion. Moreover, in the course of his address, he knew enough of the plan to tell the unionists they would go in a side entrance and would then "take photos of the scabs". Thereafter, a considerable number of the group, including Mr Johnston, put on their balaclavas and went to Johnson Tiles' north gate where bolt-cutters were used to cut the chain and open the double gates to the factory. Although the judge was satisfied that there was no agreement beforehand to damage property or to assault persons in the factory, we are by no means so confident of the latter finding because of the union members' plan to take the photographs and the manner in which that was ultimately achieved. The workers from Skilled Engineering were singled out and some of them were forced to have their photographs taken against their will. Some were held against a wall and others had their faces forcibly lifted to face a camera; others had their hair pulled back so their faces could be photographed. Some of them were pushed to the ground, abused verbally and otherwise pushed around. Although wearing a balaclava the respondent was identified by one of the victims by reason of his voice and his red whiskers protruding from underneath the balaclava. The judge was satisfied that on occasions the respondent took a number of the photographs. His Honour likewise found that the staff from Skilled Engineering were subjected to "a terrifying experience by aggressive, abusive men", who used threatening language and described some of them as "fucking scabs". In the course of this melée, although not planned in the first place, some damage was caused by the pulling out of electrical wires and the smashing of tiles, leaving total damage estimated at some $4,200. All this was the subject of count 1, the count of affray.

[9]

These incidents at the Johnson Tiles' factory at Bayswater seemed to come to an end shortly after Mr Johnston had said to the group: "Is everyone right to go?" He then participated in giving directions to union members to go to Skilled Engineering, whose premises were in Box Hill. They met at the Whitehorse Plaza at about 9 a.m. The respondent seemed still to be one of those in charge as he again asked if all were ready and the group then moved towards Skilled Engineering's premises. Most of the group went to the front door and forced an entry to the premises, which was an office building housing mainly administrative staff. Although some union members were still wearing balaclavas, Mr Johnston had taken his off by the time he entered. On this occasion the group were not interested so much in the individuals present as in the carrying out of what the judge called an "unbridled rampage" inside. Filing cabinets were upturned, computers were thrown to the floor and damaged, files and papers were strewn around, pictures were taken off the walls and smashed, a drinking fountain was torn from the wall, furniture was up-ended and several glass doors or partitions were broken. At one stage a fire extinguisher was set off spraying acrid powder into the air over some of the staff present. The staff were left in what has been described as "stunned amazement" but eventually moved towards the foyer area. Several of them were upset and scared and one in particular, who was five months pregnant at the time, was particularly scared because she believed she was breathing in the contents of the fire extinguisher and was worried as to its possible effect thereafter on her child. Several staff needed counselling later. The total amount of damage was calculated as amounting to $44,560.18, which was the amount awarded in the compensation order. Ultimately the union members left. Again it seemed that Mr Johnston was in charge as he was heard to say: "That's it, we're out of here", wishing the unhappy staff at Skilled Engineering "a nice day". Shortly afterwards he again telephoned Mr Triggs asking him whether he was ready to negotiate, although pretending that he had had a cold and had just woken up.

[17]

The respondent was married in 1980 and the three children of the marriage are now young adults. Two daughters still live with him but he separated from his wife in 1994 and was later divorced. A good relationship with his former wife has led to his making a substantial contribution to the children's upbringing that continues to the present day. The learned judge found that the respondent had contributed to the community in a number of ways, in particular in activities associated with the Keilor Little Athletics Club and the Keilor Park Football Club. His Honour likewise found that he devoted most of his working life to the union movement for the betterment of its members and that he had contributed to the community by fundraising for many social issues, in particular relating to East Timor; that he had sacrificed his own financial interests to achieve his ambitions to help unionists and others less fortunate than him; that he had paid the price of personal relationships in order to achieve his objectives; that he had made other substantial contributions to the community and that he lived a modest life consistent with his exercising responsibility as a single parent for the upbringing of his children. A considerable number of people regarded him as a worthy citizen and there were a significant number of character references tendered on his behalf. These matters were each treated as factors in his favour by the learned judge, but his Honour added, in addition, several other factors, such as his plea of guilty, his absence of "significant" prior convictions, that there were no other criminal matters pending from 2001 to the present day, that the offending occurred "in the course of a genuine industrial dispute" (although we would cavil at the use of the words "in the course of") and that, as is the fact, he had lost his position as State Secretary of the AMWU as a result of his criminal offending. One should add, although it was not suggested it was relevant to the sentence imposed by the judge or to the present appeal, that he has subsequently lost his membership of that union for other reasons.

[32]

His Honour then proceeded to deal with the submissions made on behalf of Mr Johnston, although we will not repeat conclusions already stated. It was argued that the earlier threats made by the respondent were part of normal industrial relations, unrelated to the incidents, but his Honour was satisfied beyond reasonable doubt that, when Mr Johnston had stated his intention to "kick the shit out of Skill", he had meant (broadly) what he had said and that he carried out his threat, as was demonstrated by what in fact occurred at both premises. It was also argued that the wearing of balaclavas was intended to conceal the identity of the leaders and not to cause terror, in fact resulting in only momentary distress, but his Honour was likewise satisfied that their use had the dual purpose of not merely disguising the wearers but "also to intimidate and cause fear in the minds of those who were confronted". As to the contention that the additional charges were part and parcel of the principal offences of affray, so that there should be no cumulation, the judge agreed that the respondent should not be subjected to double punishment, but in respect of the count of criminal damage the court was entitled to take account of the seriousness of that count, as it carried a higher maximum penalty, and that he and others had caused over $44,000 worth of damage, so providing "a basis for some cumulation". Certainly counsel had conceded that the additional offences had aggravated the conduct which was the subject of the two affray counts. In dealing with the respondent's guilty plea counsel had submitted that he was entitled to a discount and the judge said that, as already noted, he had not shown any remorse for his criminal conduct and that his plea was entered at the eleventh hour, so not being "indicative of contrition or remorse". The judge was prepared to treat it as an indication of his willingness to accept responsibility for his conduct and to facilitate the course of justice. Counsel had submitted that the intention of entering Skilled Engineering was to occupy the premises but that the events inside "erupted spontaneously", with the occupants being told to stay out of the way to avoid harm. The judge, however, was satisfied beyond reasonable doubt that, although there was no intent to harm those persons, a number of employees were in fact "terrified and traumatised" by those events. The judge noted that counsel had not submitted that the respondent was entitled to any discount for delay in sentencing, doubtless, we would infer, because of his earlier attitude to pleading guilty.

[40]

As earlier stated, there is a single ground of appeal, that of manifest inadequacy, supported by a series of particulars, essentially four items to which the learned judge gave undue weight and four items to which he gave too little weight. It was made clear that the appeal went to all aspects of the sentence, the individual terms imposed, the total effective sentence imposed (implicitly criticising the insufficiency of cumulation) and the decision wholly to suspend the sentence. (It should be noted, again, that no particular attack was made on the sentence on the assault count and in addition no attack was made on the $10,000 fine, though it was conceded that, if re-sentencing involved the imposition of a term to be served in custody - i.e. in this case, no or no full suspension - the imposition of a fine would then no longer be appropriate.) In the end, therefore, the principal attacks were on the claimed inadequacy of the terms on counts 1, 3 and 4 and on the total effective term and on the decision to suspend that sentence in the circumstances of the case. It should be noted at this stage that, whatever may be said as to the suspension of the term of twelve months in fact here imposed by the judge, different considerations may well be relevant to a decision to suspend, if the proper sentences to be served are to be significantly longer. For this purpose, notwithstanding what had been said about the Western Australian legislation in Dinsdale v. The Queen[4], it is necessary in this State, by reason of the provisions of s.27 of the Sentencing Act 1991, and in particular sub-ss.(1) and (3), to determine in the first place what would be an appropriate term of imprisonment if it in fact is not to be suspended. That does not mean, of course, that this Court is not obliged to consider all relevant sentencing dispositions as set out in s.7 of that Act and in particular that referred to in sub-s.(1)(c). The Court must necessarily have regard also to the principles laid down in s.5 of the Act and in particular sub-s.(4) of that section.

[53]

A not unrelated factual issue was a claim that the sentencing judge had made a mistake in concluding that there was "a real risk" that Mr Johnston "will in the future become involved in further offending of this type". Naturally an erroneous finding on the issue of remorse may have borne on this conclusion also but the judge had properly rejected that contention. It seemed open then to the judge to deal with the conventional issue as to the possibility of reoffending by reaching the conclusion he did as to the risk of further offending arising out of industrial disputes. The judge was entitled to take account of the fact that, although not serious, the majority of Mr Johnston's previous convictions arose out of public order offences and that the two incursions which he was involved in leading on 15 June 2001 were each deliberate and serious examples of breaches of public order. Having regard to the very qualified admission of wrongdoing and the absence of any true remorse, there would seem to be a strong basis for finding that there was a "real risk" of the relevant kind. Indeed one of counsel's submissions on this appeal was that "the respondent was committed to his views". Not only was there evidence to support that contention, but it pointed strongly to the possibility that he might in future be engaged in similar industrial disputes which might get out of hand in the way that the disputes with the two companies did on this occasion. At the time of sentencing the appellant was only 47, still apparently fit and still working in the same kind of occupation which he had followed for many years. Although his conviction for these offences makes him ineligible to hold any statutory office in a union, it does not prevent him from being a shop steward, or generally from participating in any industrial dispute. (It seems now that he is no longer a member of the AMWU but that does not prevent him from joining another union and certainly does not prevent him from taking part in industrial agitation.) Reliance was placed on the fact that he had not been in trouble for the three years since the offences took place but, although that is to be commended, it would not inhibit him in the years ahead from participating in industrial action which might get out of hand. In the absence of remorse we consider the judge's finding was clearly open to him. Moreover we do not accept the contention that the words "real risk" was intended to indicate that it was probable that he would be involved in such offending, only that there was a significant possibility.

[55]

There is one other question of fact which appears, at least in part, to be in dispute, namely the extent to which the harm caused at each of the two factories was premeditated. The contention that it was not might appear to be supported by the judge's finding at one stage that there was "no pre-planning for violence and damage at Johnson Tiles", although he made no such finding with respect to the invasion of Skilled Engineering's premises. The finding of "no pre-planning", we believe, flowed out of his earlier finding that there was "no agreement ... to damage property or assault persons in Johnson Tiles". If by that the judge meant only that there was no intention to cause injury to people at Johnson Tiles or to damage any property there, then such a finding was consistent with the evidence. But the later statement seems not to have been so carefully expressed. The affray was planned, and indeed one of the essential characteristics of affray is violence, though not directed, necessarily, at causing injury to specific individuals. Nor can it be said that the plan was merely to walk on to the premises, shout a few slogans and then leave again. The first step was clearly the cutting of the chains at the front gate and the intention was certainly to cause fear. Although there was no intent to cause injury, there was an intention to assault a considerable number of people in that it was planned by all, including Mr Johnston, that certain people, being "scab" workers, would be forced to have their photographs taken and in that activity, having regard to the relationship of the parties, neither Mr Johnston nor his fellow unionists could have contemplated ready acquiescence. Thus, to the extent that they were to be forced to have their photographs taken, there would clearly have been some assaults, albeit of a technical kind. On the other hand we would not conclude that it was planned that there should be any battery or other kind of injury, or that there should be any injury to property at Johnson Tiles.

[62]

Secondly, it has been argued that the judge gave insufficient weight to the fact that all offences, especially the two offences of affray and the criminal damage offence, were planned and premeditated. There is some substance in this complaint inasmuch as the judge was inclined to downplay the extent to which Mr Johnston and his fellow union members had taken into account beforehand the potential harm to the people in the two premises. In the first place there can be no doubt that both the respondent and his many colleagues had clearly in mind to strike fear into the hearts and minds of those who had been engaged by Johnson Tiles and who had been hired out by Skilled Engineering. As already noted there could be little doubt, for example, that the wearing of balaclavas might in most cases cause their victims great apprehension. Moreover, the scheme to photograph them must have been designed to leave them fearful as to what the union members, including Mr Johnston, would do subsequently to those workers. One must concede, however, that the judge was satisfied, to the requisite standard, that there was an intention on the part of Mr Johnston and his colleagues to intimidate and cause fear. On the other hand, the light sentences imposed would appear on the surface to reflect a failure to take into account all relevant circumstances such as this specific and very serious aspect unless there be countervailing considerations in favour of the respondent. Likewise Mr Johnston's intended actions directed at Skilled Engineering ought to have been perceived by him and his group as likely to cause fear, albeit that their primary concentration and purpose was to destroy office furniture and fittings. Whatever they had hoped the staff would do in reaction to this, they surely could not have thought that those staff would not have been terrified at least in the first place by the noisy and marauding tactics of the invading group. Although recognised by the learned judge, Mr Johnston's appreciation of potential terror appears, at least at first blush, not to have been reflected in the sentences.

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Parties