Director of Public Prosecutions v Johnson

[2002] VSC 597

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 5479 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATHEW CHARLES JOHNSON

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8-11, 14 OCTOBER 2002
DATE OF SENTENCE:	20 DECEMBER 2002
CASE MAY BE CITED AS:	DPP v JOHNSON
MEDIUM NEUTRAL CITATION:	[2002] VSC 597

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Contempt - Sentence

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Office of Public Prosecutions
For the Accused	Mr R. Sarah

HIS HONOUR:

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

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

1. You are 29 years old having been born on 9 August 1973.  You were born to a young mother and your natural father died when you were six years old.  You had a disrupted and difficult childhood and a limited education.  You have a series of convictions for serious and violent offences including a number of convictions for armed robbery.

1. Mr Sarah who appeared on your behalf put to me that from the age of 15 to the age of 29 you have only been at liberty for approximately four years.  You are now at the point where but for the matters before me and the primary proceeding from which these matters derive you would be eligible for parole.

1. You are a concreter by trade and upon release you have a job available to you. You thus have the possibility of demonstrating a maturity and responsibility in your behaviour which has hitherto failed to emerge.  I accept that given your age it is possible that you have matured in recent years and I note in particular that you have demonstrated a capacity while imprisoned to contribute positively to community programs directed to educating older schoolchildren.

1. Unfortunately it is apparent from the evidence before me that you played a significant and in a number of instances leading role in the disruption of your trial before the County Court in September 2000.  Before sentencing you with respect to the individual contempts in relation to which I have found you guilty it is necessary for me to reiterate as I have with respect to Paisley, Sonnet and Wenitong that the gravity of the charges which you faced in the County Court create a context in which your contempts must be assessed.  Furthermore, although you have admitted each allegation of contempt before me and 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 contempt.  Nevertheless both 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.

1. As I have already stated in dealing with your fellow contemnors the first incident of contempt occurred on 13 September 2000.  On that day Brazel resumed evidence and after a series of interruptions the learned trial judge ordered the removal of Sonnet from the trial. You then joined Sonnet and in turn Paisley in an outburst of highly offensive abuse.  Initially you stated you would go with Sonnet and then said to the learned trial judge:  "I will have no part in this fucking conspiracy.  You've let him get away with too much."  Shortly afterwards you interjected the words "sex offender" into abuse of the witness by Sonnet and Brazel, then after the learned trial judge ordered your removal you again asserted that Brazel had continually stood over the judge throughout the trial.

1. I accept that your outburst occurred in the circumstances of underlying provocation by the witness Brazel which I have elaborated in my findings as to the background facts, nevertheless neither the underlying circumstances of the trial nor the immediate circumstances which confronted you excuse the abuse which you gave way to, nor were all your co-accused provoked to act as you did.  Your participation in this outburst was a material contribution to a serious disruption of the proceeding in an abusive and offensive manner. It occurred in the presence of the jury and directly confronted the authority of the court.

1. 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.

1. You were not involved in the second or third incidents which occurred on 14 September 2000.  You were however involved in a series of six individual contempts on 18 September 2000.  At approximately 11.38 a.m. on 18 September the hearing resumed after an interruption and you joined Sonnet in abuse of the witness Brazel in the crudest possible terms. In the course of such abuse you in turn adopted threats of necrophilia to Brazel's family and then abused Brazel as a necrophiliac and a dog.  This is the incident particularised in paragraph 4 of the originating motion.  In my view your abuse took the language and abuse in the trial to new depths.  The outburst in which you joined Sonnet was as your remark of "Bombs away" indicates, a deliberate confrontation with the witness, the court and the trial process.

1. Although this confrontation occurred in the absence of the jury it must nevertheless be regarded as amounting to a serious contempt.  In all the circumstances and having regard to your particular role in this incident I sentence you to a term of six months imprisonment.

1. The fifth incident occurred at 11.51 a.m. on 18 September 2000.  When the jury was brought back into court you called out: "Hi Camilleri" and Paisley then also called out to Camilleri and voiced obscene abuse. It is apparent that it was you who took the initial step in this incident and in my view you can fairly be regarded as instigating it.  Camilleri was the juror who had been struck by the bag of excrement thrown by Paisley in the second incident.  The calling out of his name aggravated the circumstances created by the second incident.  When added to the prior assault your calling 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.

1. 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 sentence you to a term of nine months imprisonment with respect to the contempt particularised in paragraph 5 of the originating motion which relates to the fifth incident.

1. The sixth incident after the luncheon adjournment on 18 September 2000 occurred when the learned trial judge directed that the audio link between Court 4 and Court 18 be discontinued until further notice.  You responded to this direction together with Sonnet and Wenitong in a confrontation with the court in obscene and highly abusive terms.

1. Once again you were one of the first to speak and your language set a tone of extreme crudity and obscenity, commencing as it did: "Suck me cock you kid-fucking dog paedophile.  You are a real peach, you fucking rat.  Go on, turn the sound off."  You went on to state: "We know all the jury, Brazel gave us their addresses. He gets them, you know it."  Thereafter you contributed to the flow of abuse and you concluded by stating:  "I want to see Camilleri walk out."

1. Your statements again demonstrated a clear intention to interfere with the function of the jury and the effective conduct and continuation of the trial.  Your words constituted a direct affront to the learned trial judge and the authority of the court.  The affront was constituted by the obscenity of your language and the references to the jury generally and the juror Camilleri in particular.

1. These matters constituted the contempt particularised in paragraph 6 of the originating motion. In all the circumstances I sentence you to six months imprisonment with respect to your part in the sixth incident.

1. Shortly after the sixth incident at 2.28 p.m. Wenitong and Paisley exposed their buttocks to the video camera in Court 4.  You and Sonnet emphasised and dramatised the event by pointing and gesticulating.  Like the previous incident it is clear that this incident was intended to indicate implacable opposition to the continuation of the trial and was a deliberate continuation of the "circus" intended to increase pressure on the learned trial judge and ultimately achieve a termination of the trial.

1. Although you played a subsidiary role in this incident it is nevertheless clear that you played an enthusiastic supporting role.  In all the circumstances I sentence you to a term of three months imprisonment with respect to the contempt particularised in paragraph 6 of the relevant originating motion being your part in the seventh incident described in my background findings.

1. You were not involved in the eighth incident in which Paisley again exposed his buttocks, this time in the presence of the jury, nor were you involved in the ninth incident in which Paisley made a threat of serious violence to Brazel. 

1. At 10.51 a.m. however the learned trial judge adjourned the court and before he left the court you broke wind into the microphone in Court 4.  This incident was a deliberate continuation of the disruption caused by previous incidents and in particular those which had occurred on that afternoon. In this context it assumes greater significance than it might otherwise.  In all the circumstances I sentence you to one month's imprisonment with respect to the 10th incident.

1. At 3.58 p.m. you were further involved in the 11th incident your contempt being particularised in paragraph 9 of the originating motion.  During this incident you joined Sonnet in making disruptive noises and crudely abused counsel for the Office of Correctional Services. Once again you were the first of the accused to descend to crude language and abuse commencing with the words: "Sit down, whore."  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.

1. I order that three months of the term of imprisonment imposed for your part in the first incident, three months of the term imposed with respect to the fourth incident, two months of the term imposed with respect to the sixth incident, one month of the term imposed with respect to the seventh incident and two months of the term imposed with respect to the 11th incident be served cumulatively upon the nine month term of imprisonment imposed with respect to your part in the fifth incident and cumulatively upon each other, but that the sentences I have imposed otherwise be served concurrently.  This makes a total effective sentence of 20 months imprisonment.

1. I make this order having regard primarily to the nature and the deliberate cumulation of the contempts themselves on the one hand and the totality of the sentences and delay since the contempts on the other.

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