DPP v Paisley [2002] VSC 594

Supreme Court of Victoria|2002-12-20|Before: OSBORN J

Jason Brian Paisley, you are convicted of each of the charges of contempt set out in the originating motion before me and I publish my reasons for such convictions and as to underlying considerations affecting sentencing.[1] I turn now to considerations specifically affecting your sentence.

You are 23 years old, having been born on 28 November 1979 and at the time of the contempts before the court you were only 20 years of age. At the time of the assault which brought you before the County Court and in respect of which you have since pleaded guilty to causing injury, you were only 18. You have, for your age, a long and serious history of convictions for offences of violence, dishonesty and other matters, going back to 1992. Mr Taft has put to me, and I accept, that you suffered a severely dislocated and unsatisfactory upbringing as a child. You were born to a very young mother and had a difficult relationship with your stepfather from the age of 18 months. Your personality and behaviour did not mature and develop appropriately and you were institutionalised at the age of ten. It is clear that from that time you have not been able to grow or break out of a continuing cycle of institutionalisation and criminal behaviour. Nevertheless, I accept that you are of above-average intelligence and, taking into account your relatively young age and the matters set out in the report of Mr Patrick Newton submitted to me, there remain prospects for your rehabilitation and personal development.

Unfortunately, your behaviour during the incidents which occurred in the course of your trial before His Honour Judge Fagan in the County Court at Melbourne in September 2000 constituted flagrant, repeated and gross contempts of court. In the written reasons I have published, I have made detailed background findings of fact in relation to each of these incidents, and it is unnecessary for me to repeat them in full, although it will of course be necessary to refer to certain aspects of your behaviour in order to explain the sentences which I propose to impose.

Before sentencing you with respect to each of the individual contempts in respect of which I have found you guilty, I make the following further preliminary observations. First, the charge which you faced before the County Court of intentionally causing serious injury to Gregory John Brazel was a charge with respect to a serious criminal offence arising out of the alleged bashing of another prisoner in Barwon Prison on 1 October 1998. At this time, you were serving a four and a half year term of imprisonment. A charge of this type necessarily raised issues of the public interest as to the capacity of the justice system to provide due process with respect to criminal offences of violence within the State's gaols. The context in which the contempts occurred is thus a grave one.

Secondly, although you have admitted each allegation of contempt before me and have apologised to this Court, no apology was made to the County Court at the time of the offences and no acknowledgment was made to that Court of the seriousness of your contempts. Nevertheless, the fact of your pleas before me and the now substantial passage of time since the incidents in question count in your favour.

I turn then to each of the charges of contempt. The first incident occurred on 13 September 2000, which was Day 7 of the trial. It comprised abuse of the witness Brazel in crude and extended terms. This abuse was not commenced by you but you joined your co-accused Sonnet and Johnson in a concerted outburst. I accept that this outburst occurred in the circumstances of underlying provocation by the witness Brazel, which I have elaborated in my background findings, and in your case this outburst occurred immediately after Brazel had stated to you, "Well, put up your convictions to the jury". This statement was both prejudicial to you and improper. Having said this, neither the underlying circumstances of the trial or the immediate circumstances which then confronted you excused the outburst of abuse in which you joined, nor of course were all of your co-accused provoked into acting as you did. Your participation in this outburst was a material contribution to a serious disruption of the proceedings, in an abusive and offensive manner. It occurred in the presence of the jury and directly confronted the authority of the court. Having regard to all of the above matters, I sentence you to a term of four months' imprisonment with respect to the contempt alleged in paragraph 3 of the originating motion, being your part in the first incident described in my background findings.

The second incident involved you alone and occurred on 14 September 2000, being Day 8 of the trial. The trial resumed at 11.05 a.m. in the absence of the jury. Brazel was recalled and made complaints, which it appears may well have been false, to the effect that he had been abused and threatened by the accused while he was in a prison vehicle in transit to the court. The jury was brought into court at 11.16 a.m. and approximately ten minutes later, you threw a partly-closed plastic bag containing human excrement into the jury box. The bag struck one of the jurors. The learned trial judge described the item thrown by you as, "a large piece of excreta, which is offensively smelly, in a partly-closed bag". This incident constituted a direct and serious assault on a member of the jury, carried out in a manner which was highly offensive and likely to engender fear and loathing amongst the jury. The action you engaged in was totally disproportionate to any grievance you may have had as to the course of the trial, and was directed at the jury, who were themselves not of course responsible for the course of the trial. A measure of the seriousness of this contempt can be seen in the fact that when the hearing of this proceeding commenced before me, your counsel sought and obtained an order for suppression of the publication of these proceedings, on the basis that any jury would necessarily be confronted and affronted by publication of the details of your behaviour and such publication would prejudice the retrial of the primary proceedings, which was then anticipated to commence in the ensuing six weeks.

Because your action constituted a direct interference with the function of the jury, it constituted a contempt of the most serious kind. Jurors are compelled by law to undertake jury service. They do so as representatives of the community and they do so on the basis that the law will adequately protect them in the discharge of a function which is a cornerstone of the criminal justice system. Such function will necessarily be a confronting and at time unpleasant task for some members of the public but it is not part of the expectation of the law or the public that jurors be subjected to the treatment suffered in this case. There is a fundamental public interest in protecting the proper and safe exercise by jurors of their functions. It is necessary for this court to denounce the assault of a juror in the strongest terms and to ensure that a message is sent to you and others like you that conduct of this kind will not be tolerated. Accordingly, you are sentenced to a term of two years' imprisonment with respect to the contempt alleged in paragraph 4 of the originating motion, being the second incident described in my background findings. Nevertheless, for the reasons I have stated in my ruling given on 12 December 2002, I am of the view that the provisions of s.11 of the Sentencing Act do apply to your circumstances. Furthermore, I am not of the view that either the nature of the offence or the past history of the offender makes the fixing of a non-parole period inappropriate. Mr Ryan did not contend otherwise for the Crown, and the authorities relating to s.11 did not compel a contrary conclusion, see particularly R v. Lowe[2]. Because firstly the contempt in issue constitutes a serious assault which might otherwise have been dealt with by the criminal law, and because secondly your history demonstrates continuing problems upon release from terms of imprisonment, and does so by way of a pattern which confirms that an extended period of supervision and support may be of benefit both to you and the community, I believe this is an entirely appropriate case in which to fix a non-parole period, and I will do so with respect to the aggregate period of imprisonment that you will be liable to serve under all the sentences which I impose. Having regard to your personal history, the delay since the contempt and the material put forward supporting the view that a relatively lengthy period of supervision and support after release from gaol would be beneficial both to you and to the community, I propose to facilitate a substantial parole period.

You were not involved in the third incident described in my background findings, which involved abuse of the learned trial judge by Wenitong on the day of the second incident. Nor were you involved in the fourth incident, which involved abuse of the witness Brazel by Johnson and Sonnet on 18 September.

The fifth incident however involved both you and Johnson. It occurred on 18 September, subsequent to the fourth incident and some four days after the second incident. After some questioning of Brazel by you, you requested that the jury and the witness leave the court. This occurred at 11.45 a.m.. You then requested access to the prison file of the witness, and as a result of subsequent argument, the jury was brought into court to be excused until the afternoon session of the trial. Thereafter, as the jury left the court your co-accused Johnson called out, "Hi Camilleri", and you called, "Juror Camilleri". You then called out words of obscene abuse. Camilleri was the juror who had been struck by the bag of excrement thrown by you in the second incident. The calling out of his name aggravated the circumstances created by the second incident, as did the use by you of offensive language. The particulars now relied on by the Crown give you the benefit of the doubt as to whether what you called out was intended to be threatening or simply offensive. Although not as serious as your initial assault upon the juror, the calling-to and naming of the juror was a direct and serious interference with the independence, security and proper functions of the jury. When added to the prior assault, it was likely to and did in fact have a serious impact on the juror concerned, who was excused from further duty later that day, after evidence was given as to his condition consequent upon these events. As I have said, the jury system is a cornerstone of our criminal justice system, and those called upon to serve within it must be protected from harassment and offensive abuse. In all the circumstances of the matter, I propose to sentence you to a term of eight months' imprisonment with respect to the contempt particularised in paragraph 5 of the originating motion relating to the fifth incident.

You were not involved in the sixth incident, which involved abuse of the learned trial judge by Sonnet, Johnson and Wenitong, but at 2.28 p.m. on 18 September, you, together with Wenitong, stood up on the seat of the dock in Court 4 and bared your buttocks to the video camera, conveying your image to Court 18 in which the trial was taking place. This is the seventh incident described in my background findings and forms the subject of paragraph 6 of the originating motion. The incident was not a momentary one but consisted of extended exposure, dramatised by a variety of movements. This incident followed upon the previous six incidents described in my background findings and occurred on the same day as the fifth incident, in respect of which I've already sentenced you. In this context, your actions cannot simply be regarded as no more than inappropriate and infantile behaviour. It is quite apparent your behaviour was calculated to escalate the disruption of the effective running of the trial. It was intended to disrupt the hearing and place illegitimate and improper pressure on the judge by seeking to create a situation in which a proper trial would be impossible. It was a calculated extension and aggravation of the obscene abuse of the learned trial judge which occurred in the sixth incident.

If it were proper for me to sentence you by reference to the degree of insult and offence suffered personally by the learned trial judge, you would face a very severe penalty for this contempt. This was not simply some misguided exercise in anal humour, just as the language to which the judge was subjected prior to this incident was not simply a misconceived dirty joke. This was a trial in which you had thrown faecal matter at a juror and in which anal references and imputations in your language and behaviour carried with them elements of special offensiveness, continuing malevolence and wilful disruptiveness. It was a trial in which the incidents that occurred on 18 September show a clear and continuing intention to confront and abuse the learned trial judge. Nevertheless, legal authority makes it clear that it is the objective effect on the circumstances of the trial rather than the subjective effect upon the feelings of the learned trial judge to which I must have regard. In this respect, the seventh incident may be said to have had a lesser impact than some others because it occurred in the absence of the jury. In all the circumstances, I sentence you to a term of six months' imprisonment with respect to the contempt particularised in paragraph 6 of the originating motion, being your part in the seventh incident.

At 2.38 p.m. on the same day, the jury came back into Court 18 and the learned trial judge advised the jury that Mr Camilleri was discharged from the jury and that the trial would continue with the reduced number of 11 jurors. The jury was further advised that the two courts would have a two-way video connection but the audio connection would be one-way only from Court 18 to Court 4. Brazel was brought into Court 18 at 2.43 p.m. and Sonnet and Johnson made remarks about the witness. At 2.46 p.m., you exposed your buttocks to the video camera again. This incident comprised the eighth incident described in my background findings and is particularised in paragraph 7 of the originating motion. It constituted a deliberate continuation of and exacerbation of the course of events comprising preceding contempts and, unlike the seventh incident, this incident occurred in the presence of both the jury and the witness.

It might be suggested, as was expressly submitted on behalf of Wenitong, that Australian culture includes a larrikin element and that the actions in which you and Wenitong engaged should not be judged too harshly. I am prepared to accept that Australian culture does include a robust and iconoclastic sense of humour, but I am not prepared to accept that the jury in this case should have been subjected to the behaviour with which you confronted them. It must be remembered that this was a jury at which you had already thrown faecal matter, a jury among whom you had provoked the departure of one member, a fact of which the jury had just been advised, and a jury among whom the continuing combination of grossly obscene language and offensive behaviour is not likely to have been regarded as amusing. I should add that this is a jury that with the benefit of the learned trial judge's charge clearly did carefully address the evidence, acquitting two of your co-accused and convicting only you and two others, all of whom have now upon retrial pleaded guilty to charges arising out of the incident in question. The jury whom you assaulted and confronted were performing a community service as significant as any this community calls upon its members to perform, and it might be thought on the basis of the material now before me that they did so admirably. They did not deserve your behaviour and such behaviour cannot be tolerated. In all the circumstances, I sentence you to a term of nine months' imprisonment with respect to the contempt particularised in paragraph 7 of the originating motion.

At 2.48 p.m. on the same day, you addressed the witness Brazel as follows, "Brazel, I'll come down and see you down in Charlotte later, matey, you're gonna have an accident, cunt". After an interjected insult from Sonnet to Brazel, you continued, "They can't protect you, you fuckin' rat". This incident comprised the ninth incident described in my background findings and is particularised in paragraph 8 of the originating motion. It was a deliberate attempt to threaten and intimidate Brazel and a deliberate attempt to interfere with the course of the trial. The statement that Brazel could not be protected was a threat directly in contempt of the court's power to protect a necessary witness before it. I observe that this threat was made by you, as a man with a number of convictions for crimes of violence, to a witness who was before the court because he had in fact been severely bashed while in prison. I do not regard it as an empty or hollow threat. The making of a threat of violence to a witness strikes at the heart of the trial process. It is essential that those called on to give evidence in criminal trials can do so without fear of threat or improper intimidation. The failure by a witness to give relevant evidence when called upon to do so in a criminal trial will itself constitute a contempt of court. The threat made to Brazel in the course of his evidence was totally unacceptable. It may be that, as you put it in your final address to the jury, Brazel had about him the "sinister qualities of a puppet-master". Nevertheless, as your recent plea in the County Court confirms, he was the victim of an assault, and your threat to him as a witness was a direct and fundamental threat to the judicial process. In all the circumstances, I sentence you to a term of 12 months' imprisonment with respect to the contempt particularised in paragraph 8 of the originating motion, being the ninth incident described in my background findings.

You were not involved in the tenth incident described in my background findings. The eleventh incident occurred in the course of submissions made by counsel representing the Office of Correctional Services. This occurred at approximately 3.58 p.m. on 18 September 2000. It occurred in the context of a debate relating to an application made by you to obtain further documentation relating to prison records concerning Brazel. The submissions made by you to the court demonstrate a clear sense of purpose and argument, coupled with a real capacity to articulate your case. It was entirely unnecessary for you to lapse as you did into obscene abuse of counsel for the Office of Correctional Services. Your language constituted a crude and obvious attempt to disrupt proceedings and although I accept that it had its origins in a reaction to the course of the hearing and the apparent fate of your arguments, it is reflective of a fundamental problem you have with anger management, which is referred to in the written material tendered to me on your behalf. In all the circumstances, I sentence you to a term of six months' imprisonment with respect to the contempt particularised in paragraph 9 of the originating motion, being your part in the eleventh incident.

The twelfth incident of contempt occurred on 19 September 2000, when you purported to cross-examine Brazel. This incident comprises the matters particularised in paragraph 10 of the originating motion. It is apparent, both from your language and from the throat-cutting motions clearly observable on video, that the essence of this so-called cross-examination was the making of a death threat to Brazel. It is to be observed again that this threat was made by you, as a man with a number of convictions for crimes of violence, to a witness who was before the court because he had been severely bashed while in prison. This incident constituted a deliberate contempt of court and occurred in the presence of both the jury and the witness. The making of a death threat to a witness strikes at the heart of the trial process and it confronts the whole system of criminal justice when the trial is itself concerned with the capacity of the law to control violence within the prison system. It is, as I have already said, essential that those called on to give evidence in criminal trials can do so without fear of threat or improper intimidation. The law must adequately protect those required by it to give evidence and it must protect them, whatever their character may be and whatever their prior conduct may have been. In all the circumstances of the case, I sentence you to a term of 12 months' imprisonment with respect to the twelfth incident, being the contempt particularised in paragraph 10 of the originating motion.

I order that two months of the term of imprisonment imposed with respect to the first incident, three months of the term imposed with respect to the fifth incident, two months of the term imposed with respect to the seventh incident, three months of the term imposed with respect to the eighth incident, six months of the term imposed with respect to the ninth incident, two months of the term imposed with respect to the eleventh incident, and six months of the term imposed with respect to the twelfth incident be served cumulatively upon the term imposed with respect to the second incident and cumulatively upon each other, but that the sentences I have otherwise imposed be served concurrently. This results in a total effective sentence of four years' imprisonment.

I make this order having regard primarily to the nature and deliberate cumulation of the contempts themselves on the one hand, and the totality of the sentences and delay since the contempts on the other. I fix a non-parole period of two years and three months, in accordance with s.11(4) of the Sentencing Act in respect of the aggregate period of imprisonment that you will be liable to serve under all the sentences I have imposed. You may remove the prisoner.

[1] DPP v Johnson & Ors [2002] VSC 583

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