Director of Public Prosecutions v Wenitong

[2002] VSC 595

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 5478of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN WENITONG

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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 WENITONG
MEDIUM NEUTRAL CITATION:	[2002] VSC 595

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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 A. Lewis	Lethbridges

HIS HONOUR:

1. Stephen Wenitong, 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 30 years old having been born on 1 January 1972.  You have a series of convictions for serious offences going back to 1992 including three for armed robbery.  A psychologist's report tendered to me and prepared prior to the contempts which bring you before me demonstrates that you had a difficult and dislocated upbringing.  It concludes that the essential puzzle in your behaviour is that you appear to have a manner which is generally courteous and perceptive, pleasant and affable, open and communicative but you have been capable of severely antisocial and criminal behaviour. It might be said that the current charges of contempt confirm that that paradox within your personality has yet to be shown to be resolved.

1. I understand that you are shortly due to be eligible for release from imprisonment in respect of all matters for which you have been sentenced to date.  I also accept that there is, having regard to your age, some possibility that you have materially matured in recent years and are better able to appreciate the need to respect the rights of others.  Unfortunately although you exercised some initial restraint, your behaviour during the incidents which occurred in the course of your trial before His Honour Judge Fagan and a jury in the County Court at Melbourne in September 2000 constituted flagrant and gross contempts of court.  Before sentencing you with respect to each of the individual contempts in respect of which I have found you guilty, it is necessary for me to repeat some preliminary observations I made before sentencing the respondent Paisley.

1. Firstly, 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 substantial 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 alleged to have occurred within the state's gaols.  The context in which the contempts occurred is thus a grave one.

1. Secondly, although you have admitted each allegation of contempt before me and filed an affidavit expressing remorse, 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. You were not involved in the first incident, which involved abuse by Paisley, Sonnet and Johnson of the witness Brazel.  Likewise, you were not involved in the second incident, which involved an assault upon a juror by Paisley.  Following the second incident however, you confronted the court in terms giving rise to the contempt particularised in paragraph 3 of the relevant originating motion, addressing the learned trial judge in an abusive and offensive manner.  This constituted the third incident described in my background findings.  After Paisley had thrown a bag of excrement into the jury, striking one of the jurors, you protested to the learned trial judge that your trial could not as a result be fair.  After further discussion, the matter was adjourned for a short time.  When the trial resumed, your counsel applied for you to be discharged from the trial.  The learned trial judge refused the application.  Following some further discussion between counsel and the learned trial judge, you abused the learned trial judge in grossly obscene terms, accusing him of complicity with Brazel. 

1. For the reasons set out in my background findings, I accept that the course of the trial and in particular the conduct of Brazel had given rise to underlying circumstances of provocation, as far as you were concerned.  As Mr Lewis has put to me, a particular sensitivity might be thought to have existed on your part, because you were not the subject of presentment at the initial commencement of the trial with respect to the bashing of Brazel.  You were only presented following the making of a statement by Brazel after the initial commencement of the trial.  I accept that what you said to the learned trial judge was said in circumstances of high emotion and by way of reaction to the conduct of Brazel and the conduct of Paisley.  I also accept that you had a genuine perception that the trial judge was unfairly against you.  Nevertheless your refusal to accept the rulings of the learned trial judge, and the terms in which you abused the court were totally unacceptable.  In all the circumstances, I sentence you to three months' imprisonment with respect to the third incident, being the contempt particularised in paragraph 3 of the relevant originating motion.

1. You were not involved in the fourth incident, which occurred four days later, on 18 September, and which involved abuse of the witness Brazel by Johnson and Sonnet, nor were you involved in the fifth incident, which involved the calling-out to a juror on the same day by Johnson and Paisley.  You were however involved in the sixth incident, which occurred at 2.27 p.m. on 18 September, when you joined Sonnet and Johnson in abusing the learned trial judge.  After the discharge of the juror following the luncheon adjournment on 18 September, the learned trial judge directed that the audio link between Court 4 and Court 18 be discontinued until further notice.  This led to abuse of the learned trial judge by Sonnet, Johnson and yourself.  Although you did not commence such abuse and although you said less than both Sonnet and Johnson, nevertheless you materially contributed to the torrent of abuse to which the learned trial judge was subjected, and you again did so in obscene terms, accusing him of complicity with Brazel.  In all the circumstances, I sentence you to three months' imprisonment with respect to the sixth incident, being the contempt particularised in paragraph 4 of the relevant originating motion.

1. Shortly after the sixth incident, at 2.28 p.m. on 18 September, you together with Paisley 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 5 of the relevant originating motion.  I have already commented upon this incident in sentencing Paisley.  I repeat that the incident was not a momentary one but consisted of an extended exposure, dramatised by a variety of movements.  The incident followed upon the previous incidents described in my background findings, and in particular the second incident, which necessarily gave your conduct particularly unpleasant associations.  The incident also occurred immediately after the sixth incident, in which you were directly involved.  In this context, your actions cannot simply be regarded as no more than inappropriate, infantile behaviour.  It is quite apparent that your behaviour was calculated to escalate the disruption of the effective running of the trial, it was intended to disrupt the hearing and to place further pressure upon the judge to abandon the trial. 

1. Mr Lewis put to me with some eloquence that Australian culture includes a larrikin element and that the actions in which you and Paisley 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 as I have said in sentencing Paisley, this was not simply some misguided exercise in anal humour, this was a trial in which one of your co-accused had thrown faecal matter at a juror and in which anal references and imputations in your language and behaviour carried with them an element of special offensiveness, continuing malevolence and wilful disruptiveness.  The seventh incident may however be said to have had a lesser impact than some others upon the conduct of the trial 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 5 of the relevant originating motion, being your part in the seventh incident.

1. These sentences result in a total effective term of six months' imprisonment.  I have given you the benefit of concurrence, despite the deliberate cumulation of the contempts, having regard to the nature of the original contempts in issue and the totality of the sentences and the delay since the contempts occurred. 

1. You may remove the prisoner. 

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