Director of Public Prosecutions v Dickson
[2011] VSC 9
•4 February 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 3476 of 2010
| THE QUEEN (on the application of the Director of Public Prosecutions (Victoria)) | Applicant |
| v | |
| MARK EWEN DICKSON | Respondent |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2011 | |
DATE OF SENTENCE: | 4 February 2011 | |
CASE MAY BE CITED AS: | DPP v Dickson | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 9 | |
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Contempt of court – plea of guilty – serious form of contempt – respondent already undergoing lengthy term of imprisonment – three years imprisonment – application of s 14(1) Sentencing Act 1991 – fixing of one new non parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Rose SC | Solicitor for the office of Public Prosecutions |
| For the Accused | Mr J McQuillan | C. Marshall & Associates |
HER HONOUR:
This matter comes before the court by way of originating motion of the Director of Public Prosecutions for the State of Victoria against Mark Ewen Dickson, seeking a judgment that Mark Dickson is guilty of contempt of court. The particulars of the contempt are set out at length in the originating motion, which is an annexure to this judgment. In short compass, the particulars and allegations of contempt to which Dickson pleaded guilty, through his counsel, are as follows:
Dickson and a co-offender by the name of Leonard Frank Ryan pleaded guilty before me on the 16th day of February 2007 to a number of counts. Both Dickson and Ryan pleaded guilty to two counts of conspiracy to commit armed robbery, with Dickson pleading guilty to and additional two counts, one of armed robbery and one of assisting an offender. Ryan pleaded guilty to a separate count of armed robbery.
Prior to entering their pleas of guilty, both Dickson and Ryan had made a number of written statements to investigating police, which contained admissions of their criminality and, in the case of Ryan, a statement relating to his involvement with Hugo Rich in an armed robbery at Blackburn North on 8 March 2005. Dickson’s statement to the police also included his knowledge of the offence of armed robbery committed by Ryan and Rich at Blackburn North on 8 March 2005. During their pleas, both Dickson and Ryan gave undertakings to the court that they would each give evidence for the prosecution if and when called upon at the criminal trial of Hugo Rich.
On the 27th day of July 2007 a presentment was filed against Hugo Alistair Rich which contained nine counts, including inter alia, Count 1, the murder of a security guard at Blackburn North on 8 March 2005 during the course of an armed robbery and Count 2 , the armed robbery at Blackburn North on 8 March 2005, the armed robbery referred to in Count 1.
There were a number of other counts relating to theft, arson and being a prohibited person in possession of unregistered fire arms. The trial of Rich proceeded in front of Justice Lasry between August 2008 and June 2009. Counts 3 to 9 of the presentment were severed so that only the armed robbery and the murder charges remained for the jury’s consideration. Rich was ultimately convicted on both counts with the other matters being remitted to the County Court for determination.
Both Dickson and Ryan were due to give evidence in his trial and to that effect Dickson was called to give evidence upon a ‘basha’, which commenced on 18 September and continued through to the 23 September 2008. On Friday 19 September Dickson gave evidence that he was currently accommodated at the Melbourne Assessment Prison and that Ryan was detained in a different prison altogether, outside of Melbourne. Dickson was cross-examined about whether he could or did make telephone calls from the Melbourne Assessment Prison to Ryan and he indicated that to his knowledge he could not.
Shortly before the court adjourned on Friday 19 September, Justice Lasry, at the request of counsel, reminded Dickson that he would be required to continue his evidence upon the ‘basha’ on the following Monday and that an order had been made for witnesses out of court and enquired whether he understood that it meant that he was not to speak to any other witnesses in the case. Specifically this discussion occurred in court:
Mr Desmond: Your Honour just before Mr Dickson leaves, he is under cross-examination, he may or may not be aware of the usual situation, he is not to speak to relevant persons about his evidence and if he is not going to speak to Ryan so much the better, but he needs to be reminded he should not be speaking to Mr Ryan about this matter.
His Honour: Yes. Mr Dickson did you hear that?
Answer:Yes
His Honour: What Mr Desmond says is right, there is an order for witnesses out of court, although I’m not suggesting there are other witnesses that you could speak to, but you are not permitted to speak to any other witness in the case. Do you understand?
Answer:Ok.
When Dickson returned to court on Monday 22 September, he was recalled and this exchange took place:
Mr Desmond: Mr Dickson, did you have occasion to speak to Leonard Ryan over the weekend?
Answer:Sorry.
Mr Desmond: Did you have occasion to speak to Leonard Ryan over the weekend?
Answer:No.
Mr Desmond: Did you attempt to?
Answer:No.
Mr Desmond: Did you seek permission to?
Answer:No.
Mr Desmond: Did Ryan make telephone contact with you?
Answer:No.
Mr Desmond: 20September is Saturday you follow.
Answer:What’s today.
Mr Desmond: Today’s the 22nd.
Answer:The 22nd.
Mr Desmond: Yes.
Answer:Right.
Mr Desmond: I want to suggest to you there’s a note in your prison management file that on 20 September 2008, so Saturday, a telephone call was approved by Governor Reid, given on the prison arunta system to Dickson to talk to his co-accused prisoner Leonard Ryan. You will recall on Friday afternoon the very last thing, the issue that was addressed was reminding you that there was to be no contact between you and any other witness and that Ryan was a witness in this case and you were directed by his Honour not to speak with him. You agree that that was the last thing that occurred on Friday, I think you were half-way down the steps and I got you brought back up the steps to remind you of this.
Answer:Yes.
Mr Desmond: Is the note accurate, that a telephone call was approved by Governor Reid on Saturday so that you could speak to you co-accused Lenny Ryan?
Answer:Yes.
Mr Desmond: You made application, did you, you requested that a call could be put to Ryan from, I think you were at the Custody Centre, is that right?
Answer:Yes.
Mr Desmond: Directly in contravention of an order of a Supreme Court Judge.
Answer:Yes.
His Honour: That’s right is it Mr Dickson?
Answer:Yes sir.
Mr Desmond: Why?
His Honour: Well Mr Desmond.
Mr Desmond: He needs to be warned your Honour. Seems to me this witness really needs some legal advice both in writing to the answers he’s given already and the answer he’s just given you.
A transcript of the recording of the call between Dickson and Leonard Ryan was made available to the court. It contains, in part, the following exchange:
Mark Dickson: What is the official accepted agreed version of how the alibi originated, as in how, when and where ok etc.
Lenny Ryan: What is the --- what?
Mark Dickson: What is the official or accepted and agreed version?
Lenny Ryan: Between who?
Mark Dickson: Of how the alibi originated yours. As in --- my alibi for you.
Lenny Ryan: Why you wanna know because you’ve got to go back in the box?
Mark Dickson: Yep.
Lenny Ryan: Ok and you wanna know what we agreed upon?
Mark Dickson: Yeah. And how did it originate.
Lenny Ryan: The alibi… it was you come up with it yourself didn’t you, because of what Hugo did. You were going up to Ballarat yourself weren’t you.
As a result of the evidence that Dickson had given indicating that he had not had those discussions initially, and committing what could clearly be described as perjury upon his oath, the Crown were no longer in a position to call him and put him before the jury as a witness of truth.
Accordingly, although Dickson had agreed to cooperate with the Crown, his behaviour, conduct and statements during the giving of evidence, which conduct and statements included his contemptuous behaviour, rendered him incapable of being called as a witness on behalf of the prosecution. It was submitted by counsel that the behaviour of Dickson was not part of a specific and deliberate plan carried out to ensure that he was not capable of being called as a witness but was an unplanned consequence of his behaviour.
Whilst I am reluctant to accept that it was not a deliberate plan, in light of the fact that Dickson is an intelligent man and a number of other factors, I am ultimately of the view that as it would be a finding of an adverse nature which may aggravate the sentence, and I am not satisfied beyond a reasonable doubt that it was a deliberate plan, I will not take it into account in determining sentence. I am fortified in this view by the fact that the Crown did not seek to have Dickson’s original sentence increased as a result of a deliberate failure on his part to cooperate with the authorities in the giving of evidence.
The consequences however are of relevance when I come to the determination of sentence. When passing sentence on 9 March 2007, I stated:
You have each given evidence before me as to the truthfulness of those statements and you promise to give evidence in accord with those statements at the committal hearing and the trial of Hugo Rich for the armed robbery and the murder of Mr Kastenberger.
The evidence that you in particular Mr Ryan can give in relation to the involvement and responsibility of Hugo Rich, for the murder of Mr Kastenberger, is of a high level. Whilst your’s is not at the same level of importance, it is my view that you, Dickson, can also give some relevant evidence of participation by Rich, at least, in the armed robbery, and all of this confirms the evidence that PSE is able to give about Rich.
The law says that it is important that co-offenders are to be encouraged to plead guilty and given evidence against other participants in the crime. This is done by the court’s reducing the sentence that they would otherwise impose on those offenders in return for that cooperation. I do intend to give you a discount for your corroboration to date and also for the cooperation and the evidence that you will give, both shortly and in the future, against Hugo Rich.[1]
[1]R v Dickson and Ryan [2007] VSC 59, paras 39, 40 and 41.
I further stated at paragraph 66:
The sentences that I would have imposed, but for your pleas of guilty, and your promised cooperation with the authorities, would have been in mid double figures. The discount that I am going to give each of you is significant.[2]
[2]R v Dickson and Ryan [2007] VSC 59, para 66.
There was then, and still is, no requirement to state the sentence that would otherwise have been imposed but for the undertaking that was given, except in Commonwealth matters, and accordingly at paragraph 68, I stated:
But I declare that the sentence I am about to impose on both of you is less severe than would otherwise have been imposed for the following reasons:
· First, your cooperation to date with the prosecuting authorities;
·Secondly, your proposed future cooperation and undertakings to give evidence against co-offenders and others;
· Thirdly, the circumstances under which your sentence will be served.
I imposed a sentence of nine years imprisonment with a minimum term of seven years, to be served before Dickson became eligible for parole.
Counsel conceded that the offence is serious enough that the only sentencing option available would be one of imprisonment, submitting that Dickson should receive a significant degree of concurrency with the sentence he is currently serving.
This is a very serious case of contempt, the directions were explained carefully, clearly and the respondent clearly understood the directions of the Judge. The respondent in contacting Ryan has made a deliberate choice to disregard, ignore and disobey the directions of the trial Judge. The consequences of those actions are that he made himself incapable of being called as a witness and he placed the trial of Rich in jeopardy through those actions. The fact that the trial was able to proceed, and proceed to conviction, does not alter the consequences of the respondent’s actions.
I take into account in mitigation of the penalty that would otherwise have been imposed, that the respondent pleaded guilty to the offence, and admitted his contempt when confronted. There was an initial period when he attempted to deny the matters constituting the contempt, but when confronted with incontrovertible proof conceded the inevitable. I don’t accept that those admissions can be construed or relied upon as demonstrating any indication of remorse. The plea of guilty does however serve a utilitarian purpose and the penalty will be mitigated on that basis.
It was submitted by counsel for the respondent that the reason he committed the contempt and contacted Ryan was because he was ‘flustered’ by the cross examination on the Friday and wanted to ensure that he had the correct answer. As indicated, the respondent, is an intelligent and reasonably well educated man, who clearly understood the directions of the Judge, as was demonstrated by the lies he told about his non compliance with those directions when further cross examined on the Monday. I do not accept that he made contact because he was flustered, I do accept that he wanted to clarify and ensure that he had his story correct and corresponding with Ryan, which in no way mitigates his penalty.
There has been delay in respect of this matter being finalised and whilst the reasons for the delay are explicable, it is still a factor to be considered in the respondent’s favour, particularly in light of the fact that he has a known release date for the sentence he is currently undergoing, which is 21 May 2012.
The respondent is currently at Ararat Prison in a form of protection, in that his willingness to give evidence and the discount provided is reasonably well known, certainly to Rich and any of his cohorts. That resulted in the respondent being located in a prison wherein all the inmates are in some form of protection. The hardship that he is said to suffer from such protection is the location of the prison, being in country Victoria, making it more difficult for his wife and/or children to visit him.
Evidence was called upon this matter which disclosed that prior to being shifted to Ararat, the children rarely went to see him. The evidence of his daughter was that she has been to see him only two or three times in total, whilst he has been in custody - he having been in custody since May of 2005, and located in the city for at least the first two years of his incarceration. Further at least one of those visits has been whilst at Ararat Prison.
Counsel for the respondent had, at the time of the earlier plea, submitted his involvement with the previous armed robberies related to his desire to acquire money to escape from an unhappy marriage. It would appear that his wife was not prepared to take the children to visit the respondent no matter where he was located, as that situation was referred to in my earlier sentencing remarks. The respondent’s wife was present in court, but she did not give evidence, due to her depression, although there was no material put forward to suggest that she supported him in any way, either emotionally or financially. The two children have a weekly telephone call on a Sunday afternoon with the respondent and his wife has facilitated that occurring.
Counsel submitted that the respondent had missed matters such as his eldest child’s 18th birthday, her up-coming 21st birthday, anniversaries and similar events. Whilst they may be matters of regret for the respondent, they are not matters that can be considered in mitigation of penalty. The consequences upon his family life are not exceptional, they may be distressing to him, but they are not factors that have any part to play in the determination of his sentence.
The major submission made on behalf of the respondent was that the sentence to be imposed should not be a crushing sentence, taking into account the sentence that he is already serving. Totality is an important principle and one that I have taken into account. I intend to make a proportion of the sentence I impose concurrent with the sentence he is presently undergoing. Such concurrency is based upon the principle of totality, and the need to avoid a crushing sentence.
I raised with counsel the issue of the application of s 14 (1) of the Sentencing Act 1991 which states:
Fixing of new non-parole period in respect of multiple sentences
(1) If—
(a)a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and
(b)before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period—
the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.
(2)The new single non-parole period fixed at the time of the imposition of the further sentence—
(a)supersedes any previous non-parole period that the offender is to serve or complete; and
(b)must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.
Counsel for the respondent submitted that s 14(1) had no application in this case, but placed no argument in support of that submission before the court. Counsel for the DPP submitted that s 14(1) was of general import and thus had application pursuant to the decision in Rich[3] wherein it was stated:
[3]R v Rich 103 A Crim R 261 para 46-47
His Honour appears to have taken the view that the provisions of the Sentencing Act 1991 have no part to play in the exercise of the summary jurisdiction by means of which contempts are traditionally punished. That may be the reason why he gave no consideration to the provisions of ss. 11 and 15 of the Act. For my own part, I cannot see why the fact that the Court is exercising a summary jurisdiction under O.75 of the Rules should render those aspects of the Sentencing Act, which would otherwise be applicable, of no consequence. I can understand why the nature of a criminal contempt, and the purpose of its punishment, would render otiose some of the provisions of the sentencing legislation. Particularly would this be so where the court was exercising its inherent power to punish summarily and of its own motion contempts in facie curiae. Thus, as it seems to me, the discretions given to the court by the legislation to make community based orders, custody and treatment orders and, perhaps, juvenile detention orders might be seen to be inconsistent with the court’s power to commit for contempt of court. Because the power to commit for contempt has always been regarded as a power to commit for a ”fixed term”, it may well be that the legislative discretion given to courts to suspend sentences and to fix “minimum terms” are also inconsistent with the exercise of the power (cf. Morris v. Crown Office [1970] 2 Q.B. 114 at 127, per Davies, L.J.). Considerations of this kind, no doubt, influenced Young, C.J. in Hinch’s case, supra at 731, to say:
“But general provisions relating to sentencing should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court ... .”
Because it would, in this case, be inappropriate to fix a non-parole period, it is unnecessary to decide whether ss. 11 or 14 of the Sentencing Act apply in fixing punishments for contempt of court.
However, in my view, there can be no reason why provisions such as s.15 of the Sentencing Act do not apply to sentences imposed for contempt of court. That provision is clearly of general application and directs, for obvious administrative purposes, the order in which sentences of imprisonment are to be served where the sentence is imposed upon a person already undergoing a term of imprisonment.
As this is a case in which I have concluded that it would be appropriate to impose a minimum term, it is necessary to determine whether s 14(1) has application in relation to a matter of contempt dealt with by way of originating motion. The direction that a court must impose a new single non-parole period, if it is of the view that the sentence being imposed warrants a non-parole period, is mandatory. Without the imposition of a new single non-parole period the prisoner will be then the subject of two separate non-parole periods. In the decision of R v Bortoli[4] the court outlined the procedure that should occur:
Section 14(1)(b) requires the court imposing the subsequent sentence of imprisonment to determine, first, whether or not “it proposes to fix a non-parole period in accordance with s.11”. If the Court determines that a non-parole period is appropriate, the Court should not consider, or state, what the non-parole period would be with respect to the head sentence which the Court intends to impose. Instead, the Court must fix a new single non-parole period by reference to the total effective head sentence, being the combination of all sentences which the offender is required to serve and complete, including the sentence of imprisonment about to be imposed. The Court must have regard to the totality of the offending, including factors in aggravation or mitigation and factors personal to the offender which are relevant to the minimum sentence which should be imposed.
[4]R v Bortoli [2006] VSCA 62
This section in my view is of general application and in line with the decision in Rich should be complied with in these circumstances. I intend to impose a new single minimum term. Although R v Rich (No 2)[5] appears to indicate that a trial Judge has a choice of the manner in which this is done, it is also clear that a court cannot backdate a sentence, and all State sentences must commence on the date on which they are imposed subject to certain exceptions contained in the Act.[6]
[5]R v Rich (No.2) (2002) 4 VR 166;
[6]S.17 Sentencing Act 1991
Accordingly in respect of the offence of contempt, the respondent Mark Ewen Dickson is convicted and sentenced to be imprisoned for three years. I direct that two years of that sentence be served cumulatively upon the sentence imposed on the 9th of March 2007, making a total of 11 years imprisonment. I direct that he serve a new single minimum term of eight years imprisonment before being eligible for parole. I direct that such sentences commence from this date.
I declare that 2,081 days pre-sentence detention has been served in respect of this sentence and such is to be noted in the records of the court. That pre-sentence detention comprises the 652 days by way of pre-sentence detention prior to the sentence imposed on 9 March 2007, together with the 1,431 days served subsequent to the original sentence imposed on that date. The intention of this sentence is that the previous sentence the respondent was undergoing is to be increased by the addition of two years cumulative on the head sentence, and one year cumulative on the non-parole period, meaning that he should be eligible for parole in May of 2013.
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ANNEXURE
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