Chief Examiner v Camilleri

[2006] VSC 442

IN THE SUPREME COURT OF VICTORIA NOT RESTRICTED

AT MELBOURNE

CRIMINAL DIVISION

No. 1501 of 2006

IN THE MATTER of the Major Crime (Investigative Powers) Act 2004

CHIEF EXAMINER

v

IVAN CAMILLERI

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2006
DATE OF SENTENCE:	8 December 2006
CASE MAY BE CITED AS:	Chief Examiner v Camilleri
MEDIUM NEUTRAL CITATION:	[2006] VSC 442

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Criminal Law – Sentencing – Contempt of Chief Examiner – refusal to answer questions – serious contempt – Several mitigating factors – Immediate term of six months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Chief Examiner	Mr G. Silbert	Victorian Government Solicitor’s Office
For Mr Camilleri	Mr P. Haag	Balmer & Associates Pty

HIS HONOUR:

1. Ivan Camilleri, you have pleaded guilty to the offence of contempt of the Chief Examiner.  The offence is one created by a statute, the Major Crime (Investigative Powers) Act2004, which I will refer to after this as the statute.  Under the statute, it is a contempt of the Chief Examiner, and an offence liable to imprisonment of up to 5 years, to refuse or fail to answer a question of the Chief Examiner.  You have, more specifically, pleaded guilty to following charge as put to you by my Associate: “Ivan Camilleri, you are charged that you did on Thursday 29 June 2006, before the Chief Examiner, without reasonable excuse, refuse and fail to answer questions relevant to the subject matter of the examiner.  How do you plead, Guilty or Not Guilty?”

1. I have made a non-publication order as to the reporting of any part of these contempt proceedings in the short term.  In the long term, suppression of publication is clearly not appropriate. The publication of these reasons will be restricted temporarily to facilitate compliance with the non-publication order.

1. On 7 April 2006, I made an order under the statute authorising the use of powers under the statute, including as to the examination of witnesses.  The order was made because of evidence placed before me of the extensive cultivation and trafficking of cannabis in locations generally west of Melbourne by a number of alleged offenders, of whom you were one.  The evidence included of you being the only person on a property on the Seereys Track, Coimidai, on 11 November 2005, and of you admitting to cultivating a significant number of cannabis plants on that property.

1. On 26 June 2006, I issued a witness summons requiring you to appear as a witness for examination before the Chief Examiner on 29 June 2006.  You duly attended at the appointed time.  I have watched  a video recording of what passed between you and the Chief Examiner.  You were not represented by a lawyer.  You indicated that you had consulted a lawyer.  The Chief Examiner several times gave you the opportunity to reconsider the choice not to have a lawyer.  The Chief Examiner gave you detailed information as to the nature of the examination and generally as to your rights.  He put to you a number of questions of a more preliminary nature which you did answer. At one stage, you indicated your intention to plead guilty to offences with which you had been charged as to the Seereys Track crop.  You had earlier indicated that you had a lawyer representing you as to those charges.  At an early stage of his providing information to you as to the confidentiality of what passed between him and you, you said to him that you would not be giving evidence. I treated that answer, and your demeanour at the time that you gave that answer, as an early indication of how you proposed to deal with his questions beyond the preliminary ones.  At one point in the course of the preliminary explanation period, you demonstrated some impatience at the time being taken by the Chief Examiner, telling him to get to the point.  When you asked for an explanation of any matter, the Chief Examiner obliged. 

1. The Chief Examiner made clear to you that it would be an offence to refuse or fail to answer any relevant question put by him to you, and that, if you so refused, you could be dealt with in this court for contempt. He gave a further warning to you when your answer, to a question of his as to there appearing to be a commercial  quantity of cannabis on the Seereys Track property, was to say: “I’m a heavy smoker.”  Later you spoke of there being “a heap of cannabis plants”. Shortly after the “heavy smoker” response, you told the Chief Examiner that you were not prepared to co-operate.  You did say that you did not care how much of a discount he gave you.  I accept that that answer suggests that you had not appreciated his precise meaning.  However, shortly after that, you both stated and otherwise made it clear that you were not going to co-operate.  For a time you answered some questions.  You did so in a way that was consistent with your indicating that your involvement in the Seereys Track property was entirely your responsibility.  For a time you gave some non-responsive answers.  To a question as to the source of timber used on the property, you said that you could not remember.  The Chief Examiner warned you at that point.  There was then an exchange between you and the Chief Examiner.  During that exchange, your answers included again that you could not remember.  You also again refused to answer, both expressly and once by saying “I don’t have to do shit.” After expressly saying “I’m not going to answer these questions”, you said and repeated : “I refuse to co-operate.”

1. I have provided a brief summary, but would indicate that I have carefully considered the key exchange because of the focus on it made by Mr Haag who appeared for you on the plea hearing. I was unconvinced by what he put to me as to the lack of fairness on the part of the Chief Examiner, in not painstakingly giving you a chance to address each relevant question that he had in mind to put to you.  I was well satisfied that you had manifested your intention not to answer relevant questions.

1. I should and will briefly summarise what happened after 29 June, when the Chief Examiner took steps to bring the matter before this Court. You were brought before Osborn J.  He made orders including that the further hearing of the matter be adjourned and that you be released on bail. There were later adjournments, primarily given to maximise the prospect that you were accorded procedural fairness, even though your lawyers had given an indication at an early stage that you proposed to plead guilty as you ultimately formally did.  I asked that you be given an opportunity to appear again before the Chief Examiner. I did so in order that you could have an opportunity to mitigate the contempt by a comprehensive answering of questions.  That led to your being brought again before the Chief Examiner.  I do not propose to review in detail what then occurred.  Certainly, what took place cannot be treated as aggravating the contempt.  It can, to the extent that you did answer further questions, only minimally be treated as operating in mitigation.

1. I must and do take account of matters personal to you.  You were born in Malta in 1977 and are now 28 years of age.  You came to Australia before you were aged ten.  You left school at the age of 16.  You have had a good work record mainly at labouring jobs. You have lost touch with your parents. You live alone. Although you  have been in relationships, you are not currently in one. Most significantly, you have no prior convictions.  You have not acquired significant assets.  You do not have about you the indications of a man set on making money through drug cultivation.

1. I come back to the statute.  Its primary purpose is to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences.  Parliaments in many other jurisdictions are increasing the measures aimed at obtaining more reliable information about major crimes.  You had information. Before the statute, you could choose not to provide it.  The statute reduces the capacity of people like you who have information about serious crimes to choose to remain silent.  The statue means that when the criteria for asking questions aimed at obtaining that information are satisfied, people in your position must either provide the information or be punished.  Clearly, the punishment must fit the circumstances.  Your choice to refuse to answer questions was a considered choice. It was a serious contempt.  You were well aware of the consequences of not answering the questions.  You were well aware that you could have to serve a term in prison.  If you had given answers to the questions put to you and the questions that were foreshadowed, the clear indications are that the answers given by you would have led to stronger evidence being available as against other persons who did have the means, which you did not have, to set up the extensive cultivation arrangements on the Seereys Track property.  The cultivation of cannabis plants is a serious offence.  For the cultivation of a large commercial quantity of cannabis, the maximum penalty is life imprisonment.  It is the same sentence as the most heinous crimes in the criminal calendar.  You have not given a reason for not answering the questions put to you.  You have given strong indications of being prepared to take personal responsibility for the extensive cultivation of cannabis plants, and not to implicate others.  You choice to refuse to answer questions must be strongly denounced.  Others must be deterred from making the same choice.

1. I am satisfied that an immediate term of imprisonment is the only appropriate option. As to that, I have considered carefully the outcome and what was said in a series of relatively recent New South Wales cases.  The term that I will impose would have been longer but for the existence of several mitigating factors. You have no prior convictions.  You come from a law-abiding background. You gave indications very early of your intention to plead guilty to the contempt. You did answer some questions of the Chief Examiner.  I also accept that there are potentially some types of examinations, such as with respect to murder or police corruption investigations, where the non-answering of questions could be even more serious than in your case.

1. I sentence you to an immediate term of imprisonment for six months.